HHJ Burrows continues to display a Stakhanovite approach to producing post-AGNI judgments. In ZZ (Deprivation of Liberty in the Public Interest) (No. 2) [2026] EWCOP 57 (T2), two questions arose: (1) was ZZ deprived of his liberty; and (2) in circumstances where the primary reason for the relevant restrictions were to secure the public interest, was any deprivation of liberty to which he was subject justified? The judgment is the latest in a long-running saga which has been to Tier 3 and back (see Local Authority A v ZZ [2024] EWCOP 21), concerning a man with a constellation of impairments and presenting significant risks to others).
As to the first question, HHJ Burrows had little hesitation in reaching the conclusion that ZZ was deprived of his liberty:
11. The question is not determined solely by reference to continuous supervision and control or freedom to leave, as under the last test the Supreme Court gave us, in P v Cheshire West and Chester Council [2014] UKSC 19, but by consideration of the person’s concrete situation viewed as a whole. Relevant factors include the degree of restriction imposed, the extent of coercion, the person’s wishes and feelings, the question of consent beyond that defined by the MCA, and whether the arrangements fall within the sphere of relative normality for a person in that individual’s circumstances.
[…]
12. Applying that approach, I am satisfied that the arrangements imposed upon ZZ are highly restrictive. Almost every aspect his life is regulated and controlled. There is supervision of his movements, his communications are monitored, his relationships with others are controlled. He is severely restricted in his use of technology. In short, he is unable to exercise the degree of personal autonomy that an ordinary adult in the community would normally enjoy.
13. I do not consider these arrangements can properly be characterised as falling within the sphere of relative normality. Whilst regard must be had to ZZ’s individual circumstances and needs, a substantial proportion of the restrictions are imposed because of the risk he presents to others and the need to protect the public. Their purpose is not solely to provide care and support. In that respect the present case bears a close resemblance to Y County Council v ZZ [not the same ZZ as the one being considered here] [2013] EWCOP 463, in which Moor J recognised the relevance of restrictions imposed for the protection of others when considering whether a deprivation of liberty arose.
14. I have also considered carefully whether ZZ consents to the arrangements.
15. I accept that ZZ frequently presents as cooperative and that he has engaged positively with professionals involved in his care. He has achieved significant progress. Certain restrictions have been reduced over time, and he has expressed approval at some aspects of the current placement.
16. However, the evidence demonstrates that ZZ wishes to enjoy substantially greater autonomy than is presently available to him. He wishes to possess his own key and to enjoy greater freedom in his relationships, communications and daily life. What he ultimately wants, not surprisingly, is to live a more normal and independent existence. His compliance with the current arrangements reflect an acceptance of present reality rather than genuine agreement with the restrictions themselves.
17. Whilst the objective and subjective elements of deprivation of liberty overlap, it is still appropriate to deal with them separately, provided that one does not lose sight of that overlap, which I do not.
18. When dealing with the objective element of deprivation of liberty, I have to consider how the restrictions imposed upon ZZ are experienced by him. In other recent cases much has turned on this since the NI case now requires the Court to focus on how P experiences the circumstances in which they are placed. There has been a number of Tier 2 judgments and one very recent exceptionally clear Tier 1 judgment (NHS Leicester, Leicestershire & Rutland ICB v AA (& others) [2026] EWCOP 56 (T1) (TJ Sharron) in which this is addressed. At the present time, there is also a judgment from Mrs Justice Theis, in Essex County Council v ST [2026] EWHC 2328 (Fam).
19. The only Tier 2 judgment I will mention is that of His Honour Judge Tindal in TW v Worcestershire County Council [2026] EWCOP 54 (T2). At [55] when the Judge summarises his approach to the objective element he says this:
In short, if someone actively objects to their placement – particularly if that leads to conflict and unhappiness, or even potentially physical restraint – there is clearly an element of coercion as they are being compelled to live somewhere they did not want to live, which points towards ‘confinement’. By contrast, if someone is actively happy in their placement, that would not only point towards ‘valid consent’, it would also point against their being ‘confined’ at all because they would not experience any element of coercion. So, in MIG, MEG and Mustafa, it was their broad (if not unqualified) acceptance of their respective placements which underpinned their protective and caring purpose, ‘relative normality’ and lack of coercion, so they were not ‘confinements’ in the first place, even aside from the evident ‘valid consent’ to them. Likewise, in the more borderline case of AR, the absence of objection could not constitute AR’s valid consent to the placement, but it weighed against his ‘confinement’. In SM, objection was occasional and changeable, so could not itself change a placement that was not a deprivation of liberty into one that was. By contrast, in RF, clear and consistent objection pointed strongly towards ‘confinement’. So, clear and consistent objection is not determinative but a significant factor: generally and in this case.
20. ZZ falls somewhere between the different categories in Judge Tindal’s classification. ZZ is in a position where life outside an institutional environment is a welcome one. It is clear he would rather be where he is than someone more restricted. This is also the situation in cases concerning those who are discharged from detention under the Mental Health Act 1983 (MHA), including those who are restricted patients placed on conditional discharges. They accept the new restrictions; but what option do they have? ZZ is in the same position. He knows that he is better off where he is than in a more restricted environment, and for that he is grateful. However, it is clear he would rather have greater freedom. For that reason, his position is closer to that of mere acquiescence rather than actual agreement.
21. For all those reasons I am quite sure he is objectively deprived of his liberty.
22. Moving on to the subjective element. Compliance, acquiescence and resignation should not be confused with consent. Even if ZZ possesses the ability to provide valid consent to these arrangements, for the reasons outlined above, I am not satisfied that he does in fact do so. Rather, he accepts the arrangements because he recognises that they presently exist and because he sees no alternative. That is not the same as giving genuine consent to them. The subjective element identified in NI is therefore established.
23. Looking at the matter in the round, I am satisfied that both the objective and subjective elements required by Article 5 ECHR are present. The restrictions are extensive and pervasive. They are maintained in significant part because of the risk ZZ presents to others. They substantially curtail his autonomy and freedom of action. They do not fall within the sphere of relative normality. Furthermore, I am not satisfied that ZZ validly consents to them.
24. Other judgments refer to the third limb for deprivation of liberty, namely, state attribution. It is clear the State is explicitly involved in the restrictions imposed on ZZ. In any event, it seems to me that when a set of restrictions are to be approved by this Court, State attribution is automatically triggered: see A LA in Yorkshire v SF (by her litigation friend, the Official Solicitor) [2020] EWCOP 15, Cobb, J. at [28] .
25. I therefore conclude that ZZ is deprived of his liberty within the meaning of Article 5 ECHR.
The next question, however, was whether any such deprivation of liberty could be justified. As HHJ Burrows put it at paragraph 27 “[c]an it be in a person’s best interests to have significant restrictions imposed upon him for the protection of the public?”
The short answer was yes:
28. I am entirely satisfied that the present arrangements remain in ZZ’s best interests. They represent the least restrictive means presently available of meeting his needs whilst managing the significant risks identified by the professional evidence.
29. I derive particular assistance from the reasoning of Moor J in Y County Council v ZZ and of Mrs Justice Lieven in Birmingham City Council v SR; Lancashire County Council v JTA [2019] EWCOP 28.
30. The SR case was concerned with conditionally discharged MHA patients, which ZZ is not. The important part of that judgment for present purposes, however, is at [29] where Lieven, J. (as she then was) says this, approving Moor, J.:
The issue as to whether a patient can be detained because s/he poses a risk to the public, and it is said to be in his/her best interests to be detained for that reason, was considered by Moor J in Y County Council v ZZ [2013] COPLR 463. Moor J recognised that the purpose of the restrictions on P’s liberty was to address, prevent and control P’s sexual urges and he said at [49];
“I have come to the clear conclusion, for all the reasons given by the various doctors, that it is lawful as in Mr ZZ’s best interests to deprive him of his liberty in accordance with the local authority care plan, pursuant to schedule A1 of the Mental Capacity Act 2005. I make that declaration. In doing so, I am following the advice of the expert professionals who know Mr ZZ so well. Indeed, the Official Solicitor accepts, on his behalf, that I should do so. I make it clear to Mr ZZ that I have no doubt that the restrictions upon him are in his best interests. They are designed to keep him out of mischief, to keep him safe and healthy, to keep others safe, to prevent the sort of situation where the relative of a child wanted to do him serious harm, which I have no doubt was very frightening for him, and they are there to prevent him from getting into serious trouble with the police.”
31. Indeed, in relation to the same P, with the same restrictions, Mr Justice Peter Jackson (as he then was) reached the same decision in Re N (Deprivation of Liberty) [2016] EWCOP 47.
32. Then at [40], her Ladyship goes on:
“Equally, I have no doubt, and there is no dispute or any potential for a dispute, that it is in both patients’ best interests that they should be cared for and accommodated in the community settings proposed. In reaching this conclusion I take fully into account their wishes and feelings, which in both cases are that they are allowed to live in the proposed placements.”
33. I would add that in DY v A City Council & An NHS Trust [2022] EWCOP 51, Judd, J. explicitly approved Lieven, J. in SR [20].
34. My conclusion follows on from that of the above cases, which are binding on me. The fact that the arrangements serve an important public protection function does not detract from their benefit to ZZ himself. It is plainly in his interests that he should be protected from reoffending, from exposure to criminal sanction and from the serious consequences that would inevitably follow were those risks to crystallise.
35. In those circumstances I am satisfied that his deprivation of liberty is necessary, proportionate, lawful and in ZZ’s best interests.
Comment
The observations made by HHJ Burrows at paragraph 30 are particularly interesting to read in light of the coming into force of the provisions of the Mental Health Act 2025 providing for conditional discharge into circumstances of deprivation of liberty. ZZ’s circumstances are indeed very like a number of people who are conditionally discharged and whose circumstances amount to a deprivation of liberty. For the reasons set out here, there is a real ambiguity about what, exactly, those provisions do, an ambiguity really does require resolution. If the operation of those provisions both create the restrictions giving rise to deprivation of liberty and at the same time authorise them, is separate Court of Protection authority required for the person with impaired decision-making capacity?
Whilst HHJ Burrows is clearly correct to identify himself bound by the interpretation of the Tier 3 judges as to the operation of ‘best interests,’ I am duty-bound to say what I have said before, namely that this does feel a particularly Orwellian conception. However, as – even if the LPS does come in – they will not include the honesty suggested by the Law Commission about taking account of public protection, we will remain fixed with this fiction for the foreseeable future.
