7) ECHR 2, 3 and 5 Flashcards
1
Q
ECHR Art 2
A
The right to life
2
Q
ECHR Art 3
A
THe right not to be subject to torture or inhuman and degrading treatment.
3
Q
ECHR Art 5
A
Right not to be arbitarily detained
4
Q
How were articles incorportated into UK Domestic Law?
A
Human Rights Act 1998
5
Q
What is the courts duty when enforcing legislation?
A
To take into account the decisions and jurisprudence of the ECtHR
s2(1) HRA
6
Q
Giulani and Gaggio v Italy
A
The European Court of Human Rights has found that Italy failed to adequately investigate the death of a protestor by a member of the military police, or carabinieri, and this failure to investigate breached Italy’s obligations to safeguard the right to life. The Court was, however, not satisfied that the death itself involved a breach of human rights.
s2 read in conjunction with….
7
Q
McCann and Others v UK
A
The Court accepted that the soldiers’ belief of having to shoot the suspects to stop them from detonating a bomb was genuine, and therefore their actions were not in violation of Article 2.
However, the Court found that there was a violation of Article 2 in the control and planning of the operation; it stated that the soldiers’ reflex actions were due to lack of proper instruction and care on the part of the authorities. The Court ruled that the authorities had failed in two further ways: (a) they did not stop the suspects from entering Gibraltar, and (b) they did not consider whether the information as to the suspects having a remote control detonation device might be wrong.14 The Court did not award damages as they were satisfied that the deceased were planning a terrorist attack and compensation would have not been appropriate. However, they awarded costs.15
8
Q
What are the provisions of Art 2 ECHR?
When shall deprivation of life bot be in contravention?
A
Everyone’s right to ife shall be protected by law.
* No one shall be deprived of his life intentionally….. save in the execution of a court sentence in line with the law
- Deprivation of life shall not be regarded as inflicted in contravention of the article when results from use no more than absolutely necessary
- in defence of any person from unlawful violence
- In order to effect a lawful arrest, or prevent the escape of a person lawfully detained
- In action lawfully taken for the purpose of quelling a riot or insurrection
9
Q
When shall deptivation of life be regarded as inflicted in contravention of Art 2?
A
- Results from force that is more than absolutely necessary; and is not:
(a) in defence of any person from unlawful violence
(b) In order to effect a lawful arrest, or prevent the escape of a person lawfully detained
(c) In action lawfully taken for the purpose of quelling a riot or insurrection
10
Q
Does Art 2 allow for the death penalty?
A
- Originally yes (lawful execution)
- All signatory states have subsequently abolished this sanction
11
Q
Limits to Art 2
A
- Not permitted to derogate from Art 2 under Art 15
- Not an absolute right
- A limited right - allows the state to take life for exceptional “law enforcement purposes”
- Must show that use of force is “no more than absolutely necessary”
12
Q
Meaning of “no more than absolutely necessary”
A
Degree of force usedmust have been proportionate to achieve the legitimate aim of protecting other
13
Q
Key case providing guidance on the nature, scope and limits of state obligations under Art 2
A
McCann, Farrell and Savage v UK
14
Q
McCann, Farrell and Savage v UK
Principles
A
- “Death on the Rock” Case
- negative obligation to refrain from killing
- Investigative duty on state to fully investigate killings by state agent.
15
Q
McCann, Farrell and Savage v UK
Facts
A
- Relatives of 3 alleged IRA members shot dead in Gibraltar by SAS
- Killings had been carreid out with little warning
- No apparent effort to capture them alive
- UK Gov - believed about to detonate bomb = serious loss of life = proportionate response to perceived security risks
16
Q
McCann, Farrell and Savage v UK
Decision
A
- ECtHR found no violation of article 2, in relation to shooting themselves
- Honest belief of need - in obedience with superior orders = absolutely necessary to safeguard innocent lives.
- Violation in lack of care in control / organisation of operation
= Duty of command, control and training = MANAGERIAL OBLIGATION - Why were suspects not arrested at the border immediately after arrival in Gibralatar, if believed were intending to plant bomb.
- Should be some form of effective official investigation
17
Q
Meaning of “managerial obligation”
McCann, Farrell and Savage v UK
A
- Required state to be in a position to judge when to apply the use of deadly force
- Have mechanisms in place to avoid such force when it is not strictly required
18
Q
Which article imposes a duty to investigate situations were a state directly takes a life?
A
Article 2
* Responsibility of states themselves to investigate and remedy human rights breaches
* If proper investigation carried out, there will be no need to invoke article 2
19
Q
If the state carries out a proper investigation, will Article 2 be invoked?
A
- If proper investigation carried out, there will be no need to invoke article 2
20
Q
McCann and Investigative Duty
A
- Effective official investigation when individuals killed by result of use of force
21
Q
Investigative Duty Cases
A
- Jordan v UK
- McKerr v IK
- Kelly & Others v UK
- Dhanaghan v IK
Cases found violations of article 2 on the ground that the inquests held into security forces in Northern Ireland were flawed
22
Q
Jordan v UK
A
The European Court of Human Rights (ECtHR) found a violation of Article 2 (right to life) due to a lack of effective investigation into the death of the applicant’s son, Pearse Jordan, who was shot and killed by a police officer in Belfast.
23
Q
Shanaghan v UK
A
the European Court of Human Rights (ECtHR) addressed allegations of collusion by security forces in the death of Patrick Shanaghan, a Catholic and active member of Sinn Fein, and an inadequate investigation into his death, ultimately finding no violation of the European Convention on Human Rights.
24
Q
Al-Skeini v IK
A
- Procedural investigotary element of Art 2 extended extra-territorially
- UK required to investigated deaths of six Iraqi civillians in 2003 in Iraq
jurisdiction applied under the HRA as UK military forces had sufficient control over the territory at the time deaths occurred
25
Armani Da Silva v UK
* Killing of Brazilian Citizen in Stockwell underground
* Decided not to prosecute individual officers
* Insufficient evidence of criminal liability
* Not because state had fully investigated all aspects of the gatal shooting.
26
R(Dunne) v Independent Office for Police Conduct
* Severe brain damage due to armed police officer
* Did not die
* **Confirmed that Art 2 rights of engaged** & (art 3)
Investigatory obligation arose
* Officer had used **potentially lethal force in the operation**
27
Investigative duty for death caused by third parties - **rather than by state agents**
* Duty to investigate
* **R(Amin) v SoS for Home Dept**
28
**R(Amin) v SoS for Home Dept**
* Inmate of Feltham Young Offenders Zahid Mubarek murdered by known racist cellmate for racially motivated reasons
**Positivve duty** to protect life, **especially those under involuntary custody**
29
**R(Amin) v SoS for Home Dept**
Public Enquiry
* Home Office declined a full public enquiry - had been a proson investigation
* **No single template for such investigations**
* Irreducible core at the heart of the Art 2 duty
* **Investigation must be independent and involve full participation fo family**
= violation of Art 2 as this did not take place
30
Positive obligation
Article 2 can impose a positive obligation on the State to protect or preserve life.
* Preventative, and operational obligations
eg Criminal Justice System that deters and punishes homicide.
31
X and Y v The Netherlands
* Lack of specific criminal sanction in Dutch law
* Allowed a man to evde conviction for sexual assault of girl with learning difficulties
**Breach of positive obligation** under art 8
32
Operational obligation
* Art 2 can include an **Operational Obligatio**n on states to take preventative measures to protect individuals when their **life is at risk from others **or from **suicide**
* Liability for state authorities if **knew or ought to have known** there was a real and immediate risk to life, failed to take appropriate measures..
33
When is there an Operational Obligation incurred?
* Liability for state authorities if **knew or ought to have known** there was a real and immediate risk to life, failed to take appropriate measures..
| **Osman v UK**
34
NHS Trust A v M;
NHS Trust B v H
* Withdrawl of treatment through hydration and nutrition
* Patient in vegetatitve state
* Not a breach of Art 2
** No obligation to prolong life when prognosis is poor**
35
Pretty v UK
* Assisted suicide case
* Balance between wishes not to die in "inhuman and degrading" circumstances (Art 3) and obligation to do what is reasonable to preserve life
36
Rabone v Pennine Care
* Drs positive duty under art 2 for "negligent" treatment leading to death of a patient.
* NHS under posititve obligations to prevent suicide when on home leave from psych ward.
* Had **assumed responsibility and control over patient**
* Failed to take reasonable steps to prevent the real and immediate risk of suicide** in breach of Art 2**
37
Maguire v His Majesty's Senior Coroner for Blackpool & Fylde
* Downs syndrome woman lived under an order in adult care home
* Coroner did not direct "expanded verdict" - under s5(2) of the CJA 2009
* No breach of "systems duty" or "operational duty" under art 2
* Therefore enhanced procedural obligation was not necesssary
38
Difference between "systems duty" and "operational duty" under Art 2
Under Article 2, the "systems duty" requires states to have appropriate legal and administrative systems in place to protect the right to life generally, while the "operational duty" obligates them to take specific steps to protect individuals when they are aware of a real and immediate risk to life.
39
Art 2 Case for negative obligations
McCann, Farrell and Savage
40
Art 2 Case for Positive obligations
Osman v IK
41
Art 2 Case for secondary obligation to investigate deaths where the state is involved
McCann
Amin
42
Is the right to life is an absolute right in respect of which there can be no derogation or limitation on the part of the state?
It is not possible for a state to seek to derogate from the right to life, article 2(2)(a) to (c) provides specific circumstances in which use of fatal force by the state may not be deemed to have breached the Convention.
**Article 2 is therefore not an ‘absolute’ right.**
43
Duty for third parties
Sttate could also be held subject to a positive obligation under Article 2 to protect or preserve life. Not
Sate liability will be limited because it will only attach to state authorities if they **knew, or ought to have known**, that there was a real and immediate risk to life but failed to take appropriate measures.
** (Osman v UK)**
44
Case where ECtHR held that where a death has been caused by a third party, rather than state agents, there will still be a duty to investigate.
R (Amin)
45
ECHR Art 3
Summary
Right not to be subject to torture or inhuman and degrading treatment pr punishment.
46
ECHR Art 3
Provision
* Prohibition of torture = ** Absolute right**
* Permits no derogation
* Imposes negative and positive duty - **positive duty is not absolute**
47
Duty to not commit torture is....
Absolute
(negative)
48
Duty to prevent torture is....
Not absolute
(Positive)
49
50
Torture - threshold
* Higher threshold
* Aggrravated, deliberate and ruel form of treatment
* Distinction from inhuman and degrading treatment **(Ireland v UK)**
51
Inhuman and degrading treatment - threshold
**A high threshold**
* Only serious ill-treatment and neglect within scope
* Must be a minimum level of severity - depends on facts of the case :
- Nature and context of treatment, manner of execution, duration, physical and mental effects, impact on health of person involved - negative and postivie (*R(B) v Responsible Medical Officer*)
* Special stigma
| R(B) v Responsible Medical Officer
52
R(B) v Responsible Medical Officer
Case concerning a patient detained under the Mental Health Act 1983, the Court of Appeal ruled that the responsible medical officer (RMO) had the authority to impose treatment without consent, provided it was in the patient's best interests and that the treatment was necessary for their health or safety.
**Not inhuman and degrading**
53
Ireland v UK
European Commission
* Systematic programme of treatment to reveal information
* Five techniques - wall standing, sleep depriv, withoholding food etc.
* Combined techniues = **amounted to torture**
ECtHR
* Found inhuman and degrading, not torture
* Reluctance to classify psych techniques as torture = **considerable criticism**
54
Which case esatblished that "torture" should be regarded as qualitatively different?
* Ireland v UK
* Arose from desire to preserve stigma of torture.
55
Aksoy v Turkey
* Violent
* Stripped naked
* Electrodes on genitals
* Beaten
= torture
| Torture
56
Aydin v Turkey
* Raped, beaten, sprayed with water
= Torture
* Torture might have occurred, even without rape.
| Torture
57
Napier v The Scottish Ministers
* Lack of toilet facilities
* Exacerbated facial eczema
* Conditions and effect on physical health
= degrading treatment and violation of Art 3
* Individual basis based on phys
| Inhuman and Degrading Treatment
58
R(Spinks) v SoS Home Dept
* Mandatory life sentence prisoner, convicted of murder
* Cancer in colon, reeciving medication
* SoS failed to release him on compassionate grounds, interfered with chemo
* Mus thave been **a serious and wholly unacceptable kind**
* Not reached in this case = **no breach**
| Inhuman and Degrading Treatment
59
Peers v Greece
60
R(Q) v SoS for Home Dept
* Imposes a positive duty on public authroirites to take action to **prevent individuals** being subject to torture and/or inhuman and degrading treatment
## Footnote
Positive obligation to orevent torture and/pr inhuman treatment - not absolute
61
Is a**negative obligation** under Art 3 absolute?
Yes
| Torture and/or degrading treatment
62
# Tor
Is a **positive obligation** under Art 3 absolute?
* No it is not absolute
* R(Bagdanavicius) v SoS for Home Dept
* Similar approach to Art 2
| Positive obligation to orevent torture and/pr inhuman treatment - not ab
63
R(Bagdanavicius) v SoS for Home Dept
* Claimant may be able to establish an Art 3 positive obligation
* If can est authorities **knew or ought to know of particular circumstances**
64
Soering v UK
**Facts**
* German national facing extradition on capital charge
* Failed on Art 2 at the time as was not yet outlawed
* Succeeded on Art 3 - manner of death = inhuman / degrading = can take many years, producing **debilitating psych condition, the "death row phenomenon"**
65
Chahal v UK
* Deportation risk
* Activist for Sikh separatism in India. UK want ed to deport to India for criminality
* Indian Gov had indicated proper treatment
* Punjab Police = real risk of rogue elements
**Extended principle in Soering, to situations where non-state actors represent possible cause of Art 3 Mistreatment**
66
Which case extended Art 3 mistreatment to non-state actors?
Chahal v UK
67
Refoulement
Forceable return of refugees or asylum seekers to home coutnry where there is risk of persecution and danger.
| Art 3 - Inhuman and degrading
68
R (AAA(Syria) and Others v SoS for Home Dept
Non-refoulement = core principle of International law
**Real risk of ill-treatment**
| Art 3 - Inhuman and degrading
69
Why was Rwanda scheme not allowed
* Rwanda poor human rights record
* Defects in processing asylum claims
* Failure to abide by promises in similar agreement with Israel
70
How far does the positive obligation under Art 3 extend?
* Can claim deterioriation to phys and mental health due to not accesssing same healthcare standards as in host state.
71
AM v Zimbabwe
* UK's obligation not to deport on medical grounds applies when ...
* Real risk ... serious, rapid and inrreversible decline in health resulting in either intense suffering or reduction in Life Expectancy
| Paposhvilli v Belgium; Art 3 - Inhuman and degrading
72
Vinter and others v UK
* Whole life orders, meant that applicants could never be rleased from prison amounted to unhuman and degrading treatment.
Confliccts with AG Ref case where found that the whole-tarrif regime is compatible with Art 3
| Art 3 - Inhuman and degrading
73
Is a whole-life tariff regime compatible with art 3?
* **Vinter and Others v UK** = inhuman and degrading
** Attorney General Ref (No 69 of 2013)* - found whole-life tariff regime is compatible
* Clear difference of opinion
| Art 3 - Inhuman and degrading
74
Investigative duty under article 3
**Key Case**
DSD and NBV v Commissioner of the Metropolis
75
DSD and NBV v Commissioner of the Metropolis
* Breach of police's obligation to conduct an effective investigation into crimes committed by former taxi-driver
* John Worboys
* Failure to prevent violation of claimants Art 3 rights
* **Operational duty to conduct a proper investigation fall on police**
76
Is the assessment of whether treatment will engage article 3 is based only on objective factors such as the manner of the treatment and its duration?
Subjective factors, such as the psychological effects on the individual person concerned, will also be taken into account
(see** R (B) v Responsible Medical Officer, Broadmoor.)**
77
What is the **secondary obligation** under Art 2?
* Investigate deaths where the state is involved
**McCann; Amin**
78
Would a positive obligation on the state arise through the individual’s intended removal to a non-ECHR member state
Soering did not limit the application of the positive obligation of the Convention to cases where the removal would be to an ECHR member state.
Soering was able to successfully argue that if the UK extradited him to the USA, it would breach its positive obligation under article 3.
79
Article 5 ECHR
Protects the **right to liberty and security of the person**
80
What level of lethal force is allowed?
* No more than absolutely necessary
**Article 2(2)**
81
Art 5 ECHR
**provisions**
* Liberty and security of the person
* Limited right
* Can derogate in emergency situations
82
What obligations are contained in Art 2, and identify supporting case law
* Negative obligation *(McCann, Farrell and Savage)*
* Positive obligation (*Osman v UK)*
83
Article 5(1)
Provides basic, substantive right to liberty and the circumstances in which the state can lawfully deprive persons of their liberty, such as arrest
84
Does Art 3 include a postive duty?
* Yes a positive duty on the state **Soering; Chahal**
* Invesigative Duty **DSD v NBV**
85
Article 5(2)
Governs the right for a person to be informed of the **reasons for their arrest**
86
Article 5(3)
A person who has been arrested and detained shall be **"brought promptly before a judge"**
87
Article 5(4)
A person who has been deprived of their liberty by the state Art 3 - Inhuman and degrading decided speedily by court, or released.
88
Article 5(5)
Contains an enforceable right to compensation for a victim of an article 5 breach
89
Deprivation of liberty
Art 5(1)
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
90
Art 5(1)(c)
Arrest for a criminal offence
| Limitation to Art 5(1)
91
The legal basis for deprivation of rights
Must be sufficiently clear
92
When will Art 5 become engaged?
Art 5 is not engaged unless a person has been deprived of their liberty.
93
Engel v Netherlands
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
94
Guzzardi v Itay
* 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
95
What key distinctions are important in relation to "kettling" and "control orders"
* Deprivation of liberty
* A mere restriction on linerty
96
Kettling and Art 5(1)
* **Austin v UK**
* 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 been necessary had it not remained necessaru throughout the day.
97
What are control orders?
* 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
98
Re JJ
* 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)
99
Cases contrasting with Re JJ
**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**
100
PBL meaning
Prescribed by law
101
When may deprivation of liberty not constitute a violation of article 5(1)?
* Deprivation must have been prescribed my law **PBL**
* Must be justified by one of the limitations **Art 5(1)(a-f)**
102
The ECtHT has prescribed by law a test for determining whether PBL with respect to
* Article 5
* And the qualified rights
103
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**
104
What does the need for specific legal rules protect against in PBL?
Arbitrary interference with rights.
105
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**
106
Which case confirmed that the Sunday Times "test" would apply to other relevant articles?
**Steel and Others v UK**
107
Wingrove v UK
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
108
Hashman and Harrup v UK
What is required for the consequences to be **forseeable** depends to a degree on the ontent of the legal provision in issue.
| PBL
109
Hashman v Harrup UK
ECtHR had to consider whether "binding orders" were sufficiently clear to be prescribed by law
| PBL
110
Contrast steel and others v UK and Hashman v Harrup UK???
111
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
112
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**
* Black and Asians disproportionately searched.
**Did not meet the standard under art 8 in relation to the Sunday Times Test**
113
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
114
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
115
PACE
Police and Criminal Evidence Act 1984
116
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.
117
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.
118
Key case on the "reasonable suspicion" requirement within article 5(1)(c)
Fox, Campbell and Hartley v UK
119
Fox, Campbell and Hartley v UK
* 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
120
**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
121
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"
122
Reasonableness Test under 2nd Limb of 5(1)(c)
* Test for reasonableness is the same as in Fox, Campbell & Hartley
**Ostendorf v Germany**
123
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
124
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)
125
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)
126
S, V & A v Denmark
* 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)
127
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
128
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
129
Art 5(3)
* Important due process guarantees
* Right for a person arrested and detained to be **"brought promptly before a judge**
| Length of detention
130
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)
131
Brogan v UK
* Took a restrictive approach to requirement of promptness.
* French translation = immediately
* Limited degree of flexibility
| Length of detention 5(2)
132
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
133
McKay v UK
* 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(2)
134
Ipek v Turkey
* 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)
135
McKay v UK
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.
136
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)
137
Art 5(4)
* 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
138
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
139
Hirst v UK
* 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
140
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**
141
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 UK courts**
142
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.
143
When is art 5(1) engaged
Must be **"deprivation"** and not **mere restriction** of liberty
| **ENGEL; GUZZARDI**
144
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 reluing on must be PBL (**Sunday Times; Gillian**)
145
Which articles provide the due process guarantees that a detained person is entitled to?
* Art 5(2) - 5(5)
146
Art 5(3)
Right once arrested and detained to be brought promptly before a judge
(**McKay**; **Brogan)**
147
What is meant by legal basis
Legal precedent either from **statute** or **common law **
