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of liberty, as opposed to a simple restriction upon liberty, is one of degree or intensity, rather than of nature or substance.  In any case factors such as the type, duration, effects and manner of implementation of the measure in question will all be relevant36.  Thus, for example, in R v Bornewood Community and Mental Health NHS Trust ex parte L37 the House of Lords held that the claimant, a mentally ill patient who was not kept on a locked ward and did not seek to leave it (but would have been compulsorily detained had he done so) had not been “imprisoned”.  However the ECtHR held that the same individual had suffered a deprivation of his liberty within the meaning of article 5 as they attached less significance to the fact that the claimant was compliant and did not seek to leave38.  The exercise of stop and search powers pursuant to sections 44 – 46 of the Terrorism Act 2000 was held by the House of Lords in R (Gillan) v Commissioner of Police of the Metropolis39 not to engage article 5, as the procedure was ordinarily brief and did not involve confinement in a defined space, as opposed to the relevant person being temporarily kept from proceeding on their way.  However, relatively brief periods of detention have been held sufficient for false imprisonment claims (see para. 5 above)40.

19.Article 5(1) contains an exhaustive list of the grounds upon which a deprivation of liberty may be justified as lawful.  Lawful justification as a defence to a false imprisonment claim is not so restricted.

20.The inter-relationship between a false imprisonment claim and article 5 was considered by the House of Lords in ex parte Evans.  It was confirmed that any detention that is unlawful in domestic law will automatically be unlawful under article 5(1), thus giving rise to an enforceable right to compensation pursuant to article 5(5).  If the detention is lawful under domestic law it may nonetheless be unlawful under article 5(1) if it not sufficient accessible and precise; or is disproportionate or undertaken for an improper motive41.

36 Guzzardi v Italy (1980) 3 EHRR 333.

37 [1999] 1 AC 458.

38 HL v UK Application no. 45508/99.

39 [2006] UKHL 12 at paras 22 – 25.  It was also doubted that an ordinary superficial search of a person and their bags engaged article 8, see para. 28.

40 In Gillan the claimants were also pursuing County Court proceedings raising disputed issues of fact regarding the reasons why they were stopped, see paras 36, 66 & 76.

41 See Lord Hope at 38C-E.

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