34.1 Article 5: Right to liberty and security

Question 1

What type of right is Article 5?

Answer 1

A limited (qualified) right

Question 2

What 4 criteria must be met for any human right to be restricted?

Answer 2

1. Be in accordance with the law
2. Meet a legitimate aim
3. Take into account the margin of appreciation
4. Be necessary in a democratic society.

Question 3

What are the 5 legitimate aims to restrict a right?

Answer 3

i. national security
ii. public safety/economic security
iii. prevention of crime
iv. protects health/morals
v. protects rights of others

Question 4

What is a deprivation of liberty defined as?

Answer 4

(JJ v Home Department 2007)
- Deprivation consists of several combinations of restrictions and confinement.

Lord Hope:
“deprivation can occur even if someone’s departure is not blocked by a physical barrier, and is allowed extensive social contact.”

Question 5

Article 5(1)(a)- 5(1)(f) when can a state deprive liberty?

Answer 5

Article 5(1)(a)- Detention after arrest
Article 5(1)(b)- Detention after breaching court order
Article 5(1)(c)- Detention on suspicion of crime
Article 5(1)(d)- Detention to prevent infection
Article 5(1)(e)- Detention of minors for education
Article 5(1)(f)- Detention awaiting deportation or extradition

Question 6

What is a Control order? And case example of it breaching Article 5

Answer 6

Control order –> a court order for terrorist suspects imposing restrictions on day-to-day life such as curfews and residency orders.

(JJ v Home Dept. 2007)
- 18 hour curfew and severe activity restrictions was a breach.

Question 7

Case for breach of Article 5 for people in care

Answer 7

(Neary v Hillingdon LBC)
F: autistic boy put in care for what was supposed to be a few days, but ended up being over a year and with severe day-to-day restrictions.

Question 7

What did Lady Hale say about people in care?

Answer 7

“what it means to have your liberty deprived should be the same for everyone regardless of physical or mental disability”

Question 8

Do stop and searches violate A5?

Answer 8

No, because of s.1 PACE act 1984

can search without suspicion under CJPO act 1994

Question 9

Is kettling a breach?

Answer 9

No, however it can be:
(R v MPC 2012)
“kettling should be used as a last resort if violence is imminent”

Question 10

The 3 exceptions to Article 5’s general rule

Answer 10

• Article 5(2) Prompt reasons given
• Article 5(3) Brought promptly before judicial officer
• Article 5(4) access to court and lawful detention, speedy decisioms and determinance of sentence

Question 11

Article 5(2)

Answer 11

Prompt Reasons given
- Majority covered by PACE act 1984
- Must give reasons for arrest at the time in a language they understand

(Fox, Campbell + Hartley v UK)–> 7 hours was acceptabe delay

Question 12

Article 5(3)

Answer 12

Brought promptly before judicial officer
1. Promptly
- (Brogan v UK) 4 days 6 hours too long
2. Independent judicial officer
3. Reasonable time and bail

Question 13

Article 5(4)

Answer 13

access to a court and lawfulness of detention
- detained must be able to challenge in court
- detention must be reviewed to test lawfulness especially mental health
determinate and indertiminate sentences
- (James v UK)
Speedy decision
- (R v Home Dept.)
F: Parole board decided on sentence 3 months after tariff period, which was custom
H: still a breach
(R v Mental Health Review Tribunal)
- Delay of Mental health cases is a breach