7) Article 5 Flashcards
1
Q
Article 5 ECHR
A
Protects the right to liberty and security of the person
2
Q
What level of lethal force is allowed?
A
- No more than absolutely necessary
Article 2(2)
3
Q
Art 5 ECHR
provisions
A
- Liberty and security of the person
- Limited right
- Can derogate in emergency situations
4
Q
What obligations are contained in Art 2, and identify supporting case law
A
- Negative obligation (McCann, Farrell and Savage)
- Positive obligation (Osman v UK)
5
Q
Article 5(1)
A
Provides basic, substantive right to liberty and the circumstances in which the state can lawfully deprive persons of their liberty, such as arrest
6
Q
Does Art 3 include a postive duty?
A
- Yes a positive duty on the state Soering; Chahal
- Invesigative Duty DSD v NBV
7
Q
Article 5(2)
A
Governs the right for a person to be informed of the reasons for their arrest
8
Q
Article 5(3)
A
A person who has been arrested and detained shall be “brought promptly before a judge”
9
Q
Article 5(4)
A
A person who has been deprived of their liberty by the state is entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by court, or released.
10
Q
Article 5(5)
A
Contains an enforceable right to compensation for a victim of an article 5 breach
11
Q
Deprivation of liberty
Art 5(1)
A
No one shall be deprived of his liberty save as prescribed by law.
eg limitations to the right which allow the lawful deprivation of liberty
eg arrest
12
Q
Art 5(1)(c)
A
Arrest for a criminal offence
Limitation to Art 5(1)
13
Q
The legal basis for deprivation of rights
A
Must be sufficiently clear
14
Q
When will Art 5 become engaged?
A
Art 5 is not engaged unless a person has been deprived of their liberty.
15
Q
Engel v Netherlands
Art 5(1) - Deprivations
A
Art 5(1) was not concerned with mere restrictions on liberty, only deprivations of liberty
* Need to look at the concrete situation a person is in
* Consider type, duration, effects and manner of implementation of the measure in question
Deprivations v Restrictions on Liberty - Art 5
16
Q
Guzzardi v Itay
Art 5(1) - Deprivations
A
- Difference between deprivation and restriction of liberty is one of degree or intensity, not of nature or substance.
- Deprivation = strict arrest and detention in prison
Deprivations v Restrictions on Liberty - Art 5
17
Q
What key distinctions are important in relation to “kettling” and “control orders”
A
- Deprivation of liberty
- A mere restriction on liberty
18
Q
Kettling and Art 5(1)
A
- Not a deprivation of liberty so long as proportionate and not imposed arbitarily
- Least intrusive and most effective crowd control measure - to avoid real risk of serious injury and damage to property.
Not deprivation of liberty under Art 5(1) - Kettling may have become deprivation had it not remained necessary throughout the day.
- Austin v UK
19
Q
What are control orders?
A
- Prevention of Terrorism Act 2005
- Designed to control the movements and activities of certain individuals for the purpose of providing protection against rerrorist activity
- Home office argued that they were not sufficiently restrictive to amount to a deprivation of liberty.
Introduced after Belmarsh
20
Q
Re JJ
Control orders
A
- Non-derogating control order imposed by the Home Sec amounted to deprivation of liberty
- Engaged protetion of art 5(1) and were unlawful
Control Orders in Art 5(1)
21
Q
Cases contrasting with Re JJ
Control order
A
SoS for Home Dept v E
AF
* Degree of restraint = core issue of physical confinement
* Periods of confinement were far less than than for Re JJ
* Considered cumulatively with other restrictions
* Did not amount to deprivations of liberty
22
Q
PBL meaning
A
Prescribed by law
23
Q
When may deprivation of liberty not constitute a violation of article 5(1)?
A
- Deprivation must have been prescribed by law PBL
- Must be justified by one of the limitations Art 5(1)(a-f)
24
Q
The ECtHT has prescribed by law a test for determining whether PBL with respect to
A
- Article 5
- And the qualified rights
25
What is the test for PBL
* Interference with the Convention right has *some basis in national law* **Silver v UK** (statute or case law)
* Identified legal basis must have certain qualities **Sunday Times v UK**
26
What does the need for specific legal rules protect against in PBL?
Arbitrary interference with rights.
27
What were the qualities of the specific legal basis identified in **Sunday Times v UK**
* Law must be *adequately accessible*
* Must be formulated with *sufficient precision* to enable a citizen to regulate his conduct
* Must be *able to forsee*, the consequences which a given action may entail
BUT **need not be forseeable with absolute certainty**
28
Which case confirmed that the Sunday Times "test" would apply to other relevant articles?
**Steel and Others v UK**
Test applies to Art 5, and other articles
29
Wingrove v UK
## Footnote
PBL
ECtHR rejected a submission that the criminal offence of blasphemy was so uncertain that it ws inordinately difficult to forsee if there would be an offence.
**Blasphemy laws by their nature cannot lend themselves to precise legal definition**
* Applicant could have reasonably forseen that with appropriate legal advice that film = offence.
| Re PBL and Art 10
30
Hashman and Harrup v UK
## Footnote
PBL - forseeability
What is required for the consequences to be **forseeable** depends to a degree on the **content of the legal provision** in issue.
* Who it is addressed to and the field
| PBL
31
Hashman v Harrup UK
## Footnote
Binding orders
ECtHR had to consider whether "binding orders" were sufficiently clear to be prescribed by law
| PBL
32
Contrast steel and others v UK and Hashman v Harrup UK???
33
Gillan and Quinton v UK
**PBL**
* To meet Sunday Times requirements
* Legal protection against arbitrary interferences by public authorities in safeguarded rights
* Unfettered power = contrary to the rule of law
* Law must indicate **with sufficient clarity** - the scope of discretion conferred on competent authorities.
| Stop and search powersd of Met Police under s44 of the Terrorism Act 200
34
Gillian and Quinton v UK
**Fact**
Stop and search powersd of Met Police under s44 of the Terrorism Act 2000
* Expedient way to prevent terrorism.
* Inadequate safeguards against arbitrary interference.
* Expedient = advantageous or helpful; **not "necessary"**
* Authorisations rolling, could stop on a hunch = **not objective**
* Arrests made, *but not for terrorirsm*
* Black and Asians disproportionately searched.
**The law did not meet the standard under art 8 in relation to the Sunday Times Test**
35
R(Roberts) v Met Police Commissioner
* s60 of the Criminal Justice and Public Order Act 1994
* Empowered a senior police officer to make stop and search authorisations for 24 hours wehre reasonably believed there would be incidents involving **serious violence**.
* Then could search any person or vehicle without grounds for suspicion
* Challengd by youth support worker who failed to pay bsu fair.
* **Benefits of random searches in detecting weapons**
* Held that there combination of requirements of the CJPO, and PACE and Equality Act ensured that there were **stronger safeguards against abuse** in **Gillian**
* NOT INCOMPATIBLE WITH ARTICLE 8
36
What case can the decision in *Gillian* be contrasted against?
*R(Roberts) v Met Police Commissioner*
Found that powers were not incompatible with art 8 as there were stronger safeguards
37
PACE
Police and Criminal Evidence Act 1984
38
Art 5(1)(c)
* A person may be deprived of their liberty where that person is being unlawfully **arrested and detained**
Must have
* ***Reasonable suspicion*** of an offence having been committed
* Or Considered it reasonably considered ***necessary to prevent*** his committing an offence.
39
Two limbs of Art 5(1)(c)
1) Arrest and detention on **reasonable suspicion** of having committed an offence
OR
2) Reasonably necessary to **prevent committing an offence** or fleeing after having done son.
40
Key case on the "reasonable suspicion" requirement within article 5(1)(c)
Fox, Campbell and Hartley v UK
41
Fox, Campbell and Hartley v UK
## Footnote
Reasonable suspicion
* Northern Ireland 1970s
* Arrest on suspicion, not reasonable suspicion.
* ECtHR held that even in emergency, require **reasonable suspicion**
* Reasonable suspicion = facts or information that would satisfy an objective observer may have committed the offence
| Art 5(1)(c) - Limb 1 - Reasonable suspicion
42
**Reasonable Suspicion** as defined in Fox, Campbell and Hartley
* Facts or information that would satisfy an objective observer. that the person concerned may have committed the offence
43
Second Limb of 5(1)(c)
* Permits arrest and detention "when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so"
44
Reasonableness Test under 2nd Limb of 5(1)(c)
* Test for reasonableness is the same as in Fox, Campbell & Hartley
* Would the facts or information satisfy an objective observer that the person concerned may have committed an offence
**Ostendorf v Germany**
45
Scope of 2nd Limb of 5(1)(c)
* Some disagreement between ECtHR and UK SC
Key Cases
* Ostendorf v Germany
* R(Hicks) v Commissioner of Police for the Metropolis
46
Ostendorf v Germany
* ECtHR majority found detention of person under second limb of art 5(1)(c) must be **for the purpose of bringing him before a competent authroirty**
* Not permitted to detain football hooligan for duration of football match to prevent violence in match
| Reasonableness Test under 2nd Limb of 5(1)(c)
47
R(Hicks) v Commissioner of Police for the Metropolis
* Several people detained for 2.5 - 5.5 hrs to prevent breach of peace by disrupting HRH Cam wedding.
* Second limb permits **proportionate detention for preventative purposes**, followed by early release.
* Bringing before a competent legal authority is = dependent on cause for detention continuing long enough.
| Reasonableness Test under 2nd Limb of 5(1)(c)
48
S, V & A v Denmark
## Footnote
Reasonableness Test under 2nd Limb of 5(1)(c)
* Favoured Hicks, departed from Ostendorf.
* **Ensure it is not impracticable for the police to fulfil their duties**
* Second limb of the article should be capable of permitting short term detention of a person outside of criminal proceedings for the purpose of **preventing a concrete and specific offence**
| Reasonableness Test under 2nd Limb of 5(1)(c)
49
Article 5(2)
* Everyone who is arrested shall be **informed promptly,** in a **language** which he **understands**, of the **reasons** of his arrest and of **any charge** against him
50
Fox, Campbell and Hartley v UK
**reasons for arrest**
* Art 5(2) discussions
* Broad allegation of "terrorist" did not amount to sufficient reason = failed to satisfy this part of the article.
* **Subsequent questioning** in relation to specific offences did provide enough detail for the persons questioned to understand why they had been arrested, **within a reasonable timeframe**
* No breach of art 5(2)
| Reasons for arrest
51
Art 5(3)
* Important due process guarantee
* Right for a person arrested and detained to be **"brought promptly before a judge**
| Length of detention
52
Purpose of Art 5(3)
* To **provide a safeguard against any ill-treatment** and abuse of power by law enforcement officers and to keep to a minimum any injustified interference with individual liberty
**McKay v UK**
| Length of detention 5(2)
53
Brogan v UK
## Footnote
Length of detention 5(3)
* Took a restrictive approach to requirement of promptness.
* French translation = immediately
* Limited degree of flexibility
| Length of detention 5(3)
54
In what circumstances can prolonged detention be justified
* Terrorist offences
* Can justify prolonging the detenion period
* However**, four days, and six hours** **without judicial authorisation** was too long,
* Weakens procedural guarantee agaiinst arbitray interferences
55
McKay v UK
## Footnote
Length of detention 5(3)
* Found ***Brogan***, established a **maximum period of four days**
* ECtHR has since emphasised that shorter periods of time can still be incompatible with art 5(3)
| Length of detention 5(3)
56
Ipek v Turkey
## Footnote
Length of detention 5(2)
* Detention of three x 16 year old bous for a period of **three days and 9 hours** before court.
* Turkey argued terrorism
* ECtHR = detention not sufficiently prompt
* Emphasised boys were minors, and other safeguards were absent.
* Police had failed to take investigative measures - other than questioning.
**No special difficulties that would have preventing authorities bringing before a judge sooner**
| Length of detention 5(2)
57
McKay v UK
## Footnote
Length of detention 5(3)
A much shorter period of detention was held to be compatible with Art 5(3)
=**36 hours**
* Arrested for robbery before magistrates.
* Magistrates had competence to examine lawfulness of arrest and detention.
* Satisfactory guarantees against abuse of power by authorities = ensured compliance.
58
S, V & A v Denmark
**promptness**
* ECtHR emphasised where a person is subject to **preventative detention**, the **promptness** should be **hours rather than days**
| Length of detention 5(2)
59
Art 5(4)
| **Lawfulness of ongoing detention**
* Person derpived of liberty by arrest / detention
* Shall be entitled to take proceedings by which lawfulness of detention shall be decided speedily by a court
* Release ordered if detention is not lawful.
| Lawfulness of ongoing detention
60
Art 5(4) has been held to provide....
a **right of review** of the lawfulness of the person's ongoing detention not only by a **court of law**, but also **other bodies of judicial character**
| Lawfulness of ongoing detention
61
Hirst v UK
## Footnote
Lawfulness of ongoing detention
* ECtHR held delays of between 21 months and two years between Parole Board reviews and applicant's continued detention amounted to a breach of art 5(4)
| Lawfulness of ongoing detention
62
Where there is an automatic periodic review required by national law....
Decisions must follow at regular intervals.
Intervals of **more than one year** are generally not reasonable.
Periods elapsed not justified by rehab/monitoring considerations
Art 5(4)
**Hirst v UK**
63
Art 5(5)
A person who is the victim of an article 5 breach by a state is entitled under art 5(5) to claim **enforceable right to compensation.**
However, **s8 of the HRA provides a remedy in UK domestic courts**
* s5(5) only invoked if needs to be taken to ECTHR
64
What does Art 5(1) provide
* Basic, substantive right to liberty, sets out the cirucmstances whereby the state can lawfully deprive persons of their liberty such as arrest.
65
When is art 5(1) engaged
Must be **"deprivation"** and not **mere restriction** of liberty
| **ENGEL; GUZZARDI**
66
The two requirements the state must show to justify deprivation of liberty
1) Limitations in art 5(1) must apply (eg 5(1)(c)) = **Fox, Campbell and Hartley; Hicks**
2) Provision state is ruling on must be PBL (**Sunday Times; Gillian**)
67
Which articles provide the due process guarantees that a detained person is entitled to?
* Art 5(2) - 5(5)
68
Art 5(3)
Right once arrested and detained to be brought promptly before a judge
(**McKay**; **Brogan)**
69
What is meant by legal basis
Legal precedent either from **statute** or **common law**
