Article 5 Flashcards
1) Intro
- C may claim their rights under Article 5 were violated.
- Under Article 5 everyone has the right to liberty & security of person.
- The state may justify a circumstance under s.1 (a)(b)(c) to deprive a person of his liberty & it won’t be a breach under Article 5.
2) Article 5.4
- Article 5.4 states that a person who is deprived of their liberty by arrest or detention has the right to bring proceedings to determine the lawfulness of his detention.
- Here, C has potentially been deprived of their liberty as they’ve been … & so can challenge their detention & can take proceedings to determine the lawfulness of their detention.
3) Article 5.5
- Article 5.5 provides that a person who has been the subject of unlawful arrest or detention is entitled to compensation provided there’s been a breach of any of the rights under Article 5.
- Here, C will be entitled to compensation if they’ve been deprived of their liberty & if there’s been a breach under Article 5.
4) Deprivation
- For Article 5 to apply, a person must be deprived of their liberty. If there’s no deprivation there’s no claim.
- For there to be a deprivation it’s a question of degree and intensity (HM v Switzerland).
- There’s deprivation of liberty if C is under continuous supervision & control (HL v UK).
- The specific situation of the individual must be considered as well as factors like type, duration & manner of implementation of the measure.
*Apply - has C been deprived of their liberty?
5) Article 5.1(b) (only if relevant)
•Article 5.1(b) allows the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law.
- Apply:
- arrest under a warrant
- contempt of court
- breach of bail condition
- breach of restraining order
- maintain public order
- deal with breach of peace
6) Article 5.1(c) (only if relevant)
•Article 5.1(c) allows for the lawful arrest or detention of a person, effected for the purpose of bringing him before the competent legal authority, on reasonable suspicion of having committed an offence, to prevent him committing an offence, or fleeing after having done so.
*Apply
7) Stop and search - s.1&2 PACE (only if relevant)
- Under s.1&2 of PACE, the police have the power to stop & search members of the public in a public space.
- The police can only stop & search if they have reasonable grounds for suspecting they will find stolen or prohibited items.
- Reasonable grounds must exist before the suspect is stopped & searched & based on some intelligence.
*Apply
8) Arrest without warrant - s.24 PACE (only if relevant)
- S.24 PACE allows an arrest without a warrant when there are: a) reasonable grounds for a person’s involvement or suspected involvement in the commission of a criminal offence & b) reasonable grounds for believing that the persons arrest is necessary.
- A further test to determine necessity criteria was set out in Hayes: a) officer believes arrest is necessary & b) the belief was reasonable.
*Apply
9) Arrest procedure - s.28 PACE
- S.28 PACE provides that on making an arrest the police must follow proper procedure including: identifying themselves as police officers & informing the person they are under arrest in a language they understand (Article 5.2).
- Also, they must issue the caution, the grounds of arrest & why it’s necessary.
*Apply
10) DNA samples (only if relevant)
- Police are allowed to retain DNA samples on a database for offenders.
- Only people convicted of an offence will have their fingerprint records & DNA profiles retained indefinitely.
- Non-intimate samples can be taken without consent if the suspect has been charged.
- Intimate samples can’t be taken without consent.
*Apply
11) Time limits
- PACE limits the period of time in which the person can be detained.
- A person can be held for up to 24 hours without charge.
- The time limit can be extended by 12 hours in serious cases. Further extensions can be granted by the court in serious cases.
*Apply
