Davis v Secretary of State for the Home Department

Whether a licence condition deprives a person of liberty under Article 5 depends on the concrete situation and the cumulative effect of the restrictions. Relevant factors include their type, duration, effects and manner of implementation. The purposes of the restrictions also matter. Measures principally directed to the individual’s interests may fall outside Article 5. A requirement to reside at a probation hostel, combined with restrictions on leaving it, did not amount to deprivation of liberty where the restrictions were temporary, capable of permission or escort, and directed to supervision, public protection, prevention of re-offending and reintegration.

The claimant sought judicial review of licence conditions imposed on his release from a Young Offender Institution under section 65 of the Criminal Justice Act 1991. The conditions required him to reside at a probation hostel and prohibited him from leaving unescorted without prior approval. He argued that, individually or cumulatively, they deprived him of liberty contrary to Article 5 of the Convention. The Secretary of State accepted that the permitted Article 5(1) grounds for detention did not apply, but contended that the conditions were restrictions on movement rather than a deprivation of liberty.

1. The application for judicial review was dismissed. The court assessed the legality of the conditions on the assumption that they were implemented according to their terms.

2. The distinction between deprivation of liberty under Article 5 and restriction of movement is one of degree or intensity. The starting point is the claimant’s concrete situation. The court must consider the type, duration, effects and manner of implementation of the measures, as identified in Guzzardi v Italy 3 EHRR 333.

3. The purposes of the measures are relevant. The court accepted the additional consideration summarised in Secretary of State for the Home Department v The Mental Health Review Tribunal (PH) 2002, EWCA Civ 1868: restrictions principally imposed in the interests of the person restricted may not amount to deprivation of liberty.

4. Residence at the hostel was not, by itself, a deprivation of liberty. The question was whether the additional requirement concerning departure from the hostel, viewed cumulatively with residence, crossed the Article 5 threshold. It did not. The conditions were not enforced by physical restraint, allowed departure with an escort or permission, lasted only three months, and furthered legitimate supervision objectives.

5. Cyprus v Turkey (1976) 4 EHRR 482 and Guzzardi v Italy were distinguishable. Those cases concerned materially more restrictive and substantially longer confinement, imposed for purposes different from the claimant’s supervised resettlement. It was also lawful for the Secretary of State to take the claimant’s whole previous record into account when deciding what licence requirements to impose.

This was a first-instance judicial review application. Permission had been granted by Davis J. The Divisional Court dismissed the application.