Here is something that I wondered about when first reading Lady Hale’s judgment in Cheshire West . I haven’t asked it on here before because it’s hard to express (which usually means I’m barking up the wrong tree) but now that it’s back in the news I’ll give it another go. The ECtHR always blithely …

Hi Jonathan, this topic really interests me, i am not a legal professional but deliver training around MCA/DoL for a LA so I followed the recent A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 with inte…

[image] James Codling: Could you expand on what you mean by the ‘sleight of hand’. Get given a case about restriction vs deprivation. State that the case is not about restriction vs deprivation. On that basis state an “acid test” for restriction vs deprivation. Decide that the case meets the…

To be fair, I was only focussing on the odd way of going about things rather than the conclusion itself. In a sense the acid test was predictable. I wrote this in 2013 before the Supreme Court decision: It can be seen that the classic ECtHR approach, in HL and Storck, and in the recent cases, is t…

As a lay person interested in this area, the ‘acid test’ just made sense and seemed like an assessment that any frontline professional could assess and analyse on the ground, so to hear that others felt the ‘acid test’ would be a ‘predictable’ outcome is good to hear, because from listening to the 2…

For what it’s worth, I don’t think there was a sleight of hand. It’s noticeable she refers to MIG and MEG not being “about the distinction between a restriction on freedom of movement and the deprivation of liberty" (rather than between restriction and deprivation of liberty, which is what the ECtHR…

You are probably right… I’m expressing confusion more than anything else. But Guzzardi wasn’t just “about the distinction between a restriction on freedom of movement and the deprivation of liberty” either – it ended up mainly being about the distinction between “deprivation of and restriction upon …

Isn’t the “objective element” in all Art 5(1) cases about whether the circumstances cross the line between restriction upon and deprivation of liberty ? Guzzardi wasn’t special in that, it was just the first time the ECtHR’s (now) standard formula - which refers to liberty, not movement - was expre…

[image] Jonathan: This feels like a sleight of hand. This feels like rhetoric - when there is an evident absence of reasoning to indicate why what it refers to is ‘sleight of hand’. No - I don’t ‘know what you mean’. This is a forum that is text-based. The explicit is what will prevail. If yo…

I think she understandably wanted to avoid the mantras repeated in the ECHR case law, these being: In proclaiming the ‘right to liberty’, paragraph 1 of Article 5 is contemplating individual liberty in its classic sense, that is to say the physical liberty of the person. Its aim is to ensure th…

Law is about intellectual and philosophical jiujitsu. Nothing new there. Some are pleased with the Law Lords’ determinations at the UKSC. Others (no one implied) like to appear anti-lefty. Just like in so-called psychiatry - one can justify whatever one wants! Do you remember?

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