Article 5

Question 1

Step 1: What is Article 5?

Answer 1

Article 5 provides everyone with the Right to Liberty and Security.

This is a limited right which means the state can restrict the right if it is prescribed by law and fits into one of the justification provided for in the Article (5)(1)(a)-(f) or the state derogates

Question 2

Step 2: Has there been a deprivation of liberty?

Answer 2

• Guzzardi v Italy: decision on whether there has been a deprivation will be based on ‘degree and intensity’ and courts will consider; type, duration, effects and manner of implementation
• Cheshire West and Chester Council v P: acid test for deprivation - ‘is the person under continuous supervision and control and not free to leave’

Question 3

Step 3: Article 5 (1)(a)-(f)

Answer 3

An individual can be deprived of their liberty so long as it is prescribed by law and one of the justifications under Article 5.1(a)-(f) applies.

(a) The lawful detention of a person after conviction by a court
(b) The lawful arrest or detention of a person for non-compliance with a court order

*** (c) The lawful arrest and detention of a person effected for the purpose of bringing him before the court

(d) The detention of a minor

*** (e) The lawful detention of persons for prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants

(f) The lawful arrest or detention of a person to prevent an unauthorised entry into the country

Question 4

Step 4: A deprivation could also be justified if it falls into one of the following categories

Answer 4

• deprivation during a protest
• deprivation due to TPIM
• deprivation whilst in care
• deprivation of mentally disordered patient
• deprivation by the police short of arrest

Question 5

Step 4: A deprivation could also be justified if it falls into one of the following categories

Deprivation during a protest

Answer 5

The usual circumstances in which liberty is restricted is where a person has been arrested on suspicion of a criminal offence or due to a hospital order

• Austin and Ors v UK:* ‘ a person can be deprived of their liberty even if his departure is not prevented by a locked door or other physical barrier and even though he may be allowed extensive social and other contact with the outside world’ and that kettling is not a deprivation of liberty
• R (Moos) v Metropolitan Police Commissioner:* police have no arbitrary power to kettle people and it should only be used as a last resort when there’s evidence of an imminent breach of the peace

Question 6

Step 4: A deprivation could also be justified if it falls into one of the following categories

Deprivation due to TPIM

Answer 6

Control orders enabled the Home Secretary to impose an almost unlimited range of restrictions on any person suspected of involvement in terrorism

In January 2012 the government replaced control orders with TPIM’s

TPIM = Terrorism Prevention and Investigation Measures

They are BTEC control orders and are outside the criminal justice system and initiated by the Home Secretary

A TPIM:

• can includes electronic tagging and an overnight residence requirement
• allows ‘controlees’ to use the internet, but they can be restricted on who they can meet and where they can go, including foreign travel bans
• they’re limited to 2 yrs but can be re-ordered as soon as the existing one expires if there is evidence to do so

Question 7

Step 4: A deprivation could also be justified if it falls into one of the following categories

Deprivation whilst in care

Answer 7

Cheshire West and Chester Council v P: People in care can be deprived of their liberty if they are under constant supervision

JE v DE: The crucial quesion is whether he is ‘free to leave’, not only for approved outings but also to permanently live where or with whom he chooses. There can be deprivation of liberty in the absence of a lock or physical barrier

Question 8

Step 4: A deprivation could also be justified if it falls into one of the following categories

Deprivation of mentally disordered patients

Answer 8

Winterwerp v Netherlands:

The detention of a mentally disorder patient can be justfied if:

• the patient has a medically recognised condition established by a medical expert
• disorder must be sufficient to justofy detention
• detention should only be for the duration that the disorder exists
• detention must be at an appropriate institution
• detention should be reviewed periodically

Question 9

Step 4: A deprivation could also be justified if it falls into one of the following categories

Deprivation of liberty by the police short of arrest

STOP AND QUESTION

Answer 9

A person who is stopped and questioned by the police can refuse to answer as long as they haven’t been arrested

Rice v Connolly: You can refuse to answer questions asked by the police, but it is an offence to be hostile

Question 10

Step 4: A deprivation could also be justified if it falls into one of the following categories

Deprivation of liberty by the police short of arrest

STOP AND ACCOUNT

Answer 10

The police can ask someone to stop and account for their:

• behaviour
• actions
• presence in an area
• possession of anything

All stops must be recorded and a copy given to them

A record doesn’t have to made if the the police officer is asking for general information such as directions or if you’ve seen someone

Question 11

Step 4: A deprivation could also be justified if it falls into one of the following categories

Deprivation of liberty by the police short of arrest

STOP AND SEARCH

Answer 11

The police power includes the ability to stop and question a suspect and if necessary search their person and vehicle

The strict rules for stop and search are contained in s.1 and Code A of the PACE Act 1984

The suspect must be told

• why they’re being stopped and searched
• the officer’s name, number and station (if not in uniform, must show ID)
• an explanation of the grounds

The search must be carried out in a public place, and can only remove coat, jacket and gloves. Should they need to remove more clothing, they must move the suspect to place out of view

s.117 PACE Act 1984 allows reasonable force to be used

Question 12

Step 4: A deprivation could also be justified if it falls into one of the following categories

Deprivation of liberty by the police short of arrest

STOP AND SEARCH - s.1 PACE Act 1984

Answer 12

states ‘the police must have reasonable grounds for suspecting a person is in possession of stolen goods or prohibited articles’. Must be done in a public place.

Code A states these powers must be used fairly, with respect and without discrimination

‘suspicion’ - must be based on intelligence, information or the suspects behaviour only

‘prohibited article’ =

• weapons (Firearms Act 1968)
• things used to commit burglary
• drugs (Misuse of Drugs Act 1971)
• terrorism (Terrorism Act 2000)
• criminal damage

Allows stolen or prohibited articles to be seized

A record of the stop and search must be made as soon as possible after the search and must include date, time, place, reason for search, self-defined ethnicity, outcome and if any injury/damage was caused

copy must be given to the suspect

Question 13

Step 4: A deprivation could also be justified if it falls into one of the following categories

Deprivation of liberty by the police short of arrest

STOP AND SEARCH - additional powers

Answer 13

There are additional powers in s.60 Criminal Justice and Public Order Act 1994 and under s.44 Terrorism Act 2000

Here there is no need for reasonable grounds, but a senior officer must suspect there could be serious violence

• Terrorism Act 2000* - allows shoes to be removed
• CJPOA 1994* - allowed a disguise to be removed

Question 14

Step 4: A deprivation could also be justified if it falls into one of the following categories

Deprivation of liberty by the police short of arrest

STOP AND SEARCH - case law

Answer 14

R (Roberts) v Commissioner of Police of the Metropolis - being kept waiting during a stop and search is not a deprivation

R (Gillian) v Commissioner of the Police of the Metropolis - there must be a reasonable belief an act of terrorism will take palce

Osman v DPP - police didn’t give their names and station to the suspect and was therefore unlawful

‘fishing exhibition’ is also not allowed - where a person is searched without reasonable grounds

Question 15

Step 5: In accordance with procedure prescibed by law

Answer 15

Under Article 5 is states that ‘no one shall be deprived of his liberty save… in accordance with a procedure prescribed by law’

This is concerned with domestic law, whether the action conforms with the relevant domestic law is a question for the state but the ECtHR will scrutinise the measure to ensure this is the case.

A deprivation may be justified but it will only be lawful (and not a breach/violation of Article 5) if it is prescribed by law that is not arbitrary i.e. there is a clear and precise law that allows for the deprivation, and the state has followed the law correctly (Stafford v UK)

Question 16

Step 6: Justified deprivation of liberty

Answer 16

Where there has been a deprivation of liberty it must be justfied only by reference to Article (5)(1)(a)-(f)

Question 17

Step 6: Justified deprivation of liberty

Article 5 (1)(a)

Answer 17

The article allows an individual to be detained following conviction by a competant court, for example s.47 OAPA 161 has a maximum sentence of 5 years

Continued detention after a conviction must be linked to the conviction and cannot be arbitrary (Stafford v UK)

Question 18

Step 6: Justified deprivation of liberty

Article 5 (1)(b)

Answer 18

Concerns the non-compliance with a court order or to secure an obligation required by law (which must be specific).

It allows for the lawful arrest or detention in cases such as:

• an arrest under a warrant for non-payment of a fine
• contempt of court
• breach of a bail condition

It covers measures where a court order has been made, including a matrimonial order or a psychiatric confinement

Also allows the police to detain someone to administer the criminal law, eg. requiring a motorist to take a drink/drug driving test at the roadside

Question 19

Step 6: Justified deprivation of liberty

Article 5 (1)(c)

Answer 19

relates to when the police think someone is about to commit an offence

It allows for the lawful arrest or detention of a person suspected of having committed an offence

The law relating to arrest is set out in s.24 and Code G of PACE Act 1984 and s.110 Serious Organised Crime and Police Act 2005

The police must have ‘reasonable suspicion’ and consider it ‘necessary’ to arrest a suspect lawfully

Question 20

Step 6: Justified deprivation of liberty

Article 5 (1)(c)

s.24 PACE Act 1984

Answer 20

Under s.24(1) PACE a police officer may arrest

(a) anyone about to commit an offence
(b) anyone who is in the act of committing an offence
(c) reasonable grounds for suspecting someone is about to commit an offence
(d) reasonable grounds for suspecting someone is in the act of committing an offence

Question 21

Step 6: Justified deprivation of liberty

Article 5 (1)(c)

An arrest may be ‘necessary’

Answer 21

An arrest may be ‘necessary’

• to find out someone’s name and address
• to prevent them from harming themselves or others, suffering injury, damaging property, obstructing the highway or committing an offence against public decency
• to protect a chidl or vulnerable person
• to allow a prompt and effective investigation
• to prevent the suspect disappearing

Shimovolos v Russia: Article 5 (1)(c) didn’t allow detention as a general policy of prevention, of people who were perceived to be dangerous or likely to offend

Question 22

Step 6: Justified deprivation of liberty

Article 5 (1)(d)

Answer 22

Allows for the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him beofre a competant legal authority

‘detention of a minor’ is given a wide meaning by the ECtHR and includes residential orders with an element of education

Question 23

Step 6: Justified deprivation of liberty

Article 5 (1)(e)

Answer 23

Allows for the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants

Most cases under the subsection involve people of unsound mind (Winterwerp v Netherlands)

Question 24

Step 6: Justified deprivation of liberty

Article 5 (1)(f)

Answer 24

Allows for the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is taken with a view to deportation or extradition

This covers asylum seekers awaiting their application to be decided

Question 25

Step 7: Article 5 (2)

Answer 25

Provides that anyone who is arrested must be informed, in a language which he or she understands, the reasons for arrest or detention and any charge brought against them

Relates to Article 5 (1)(b)(c)

Question 26

Step 7: Article 5 (2)

s.28 PACE Act 1984

Answer 26

s.28 PACE provides that on making an arrest the police must follow proper procedure including:

• identify themselves as police officers
• inform the person that they are under arrest (can be up to 7 hours after - Fox, Campbell and Hartley v UK) to make further enquiries and prepare for an interview
• the grounds of arrest and why it is necessary
• issue the caution - which also states the suspect’s rights. Doesn’t have to be done during the arrest, if it’s not possible, but should be done as soon as practicable

Question 27

Step 7: Article 5 (2)

What caution is given to someone under arrest?

Answer 27

s.34 Criminal Justice and Public Orders Act 1994

You don;t have to say anything. But, it may harm your defence if you dont mention when questioned something which you later rely on in court. Anything you do say may be given in evidence

This means that the suspect is always informed of what is happening and why. Failure to do so may amount to false imprisonment - Christie v Leachinsky

Question 28

Step 7: Article 5 (2)

Detention: Time Limits

Answer 28

Once arrested they’re usually taken to the police station where they’re detained and questioned by the police in order to gather evidence and decide whether to charge the person

A person is entitled to legal advice whilst he/she is detained (s.58 and Code C of PACE 1984)

s.56 PACE states that a suspect has the right to inform someone of their detention, however this cna be delayed for up to 36 hrs in cases of indicatable offences

PACE limits the period of time in which the person can be detained to 24 hours

Question 29

Step 7: Article 5 (2)

Detention: Time Limits

After 24 hrs

Answer 29

After 24 hours the suspect must either be released or charged

This time limit can be extended by 12 hours in serious cases taking the total time to 36 hours. A court may extend the period of time to 96 hours

In cases involving the Terrorism Act 2006 allows for suspects to be held for up to 14 days without charge (48 hrs initially and then extensions granted by the court)

R v Samuel: Refusal of access to a solicitor before the final interview was unjustified and the interview shouldn’t have taken place. Breach under s.58 PACE 1984

Question 30

Step 8: Article 5 (3)

Answer 30

Provides that anyone arrested or detained under Article 5 (1)(c) shall be brought promptly before a trial or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time

This means that an arrested person must be brought to trial, bailed (with or without conditions) to appear at trial or released within a reasonable time

A long delay from initial detention to being put beofre a judicial officer can be consider arbitrary. Word ‘promptly’ is interpreted by the ECtHR on a case-by-case basis

Brogan v UK: terrorists held for 4 days and 6 hrs from arrest to beng brought towards a judge. Considered too long

McKay v UK: court held 4 days is the maximum

Question 31

Step 8: Article 5 (3)

Bail - when can someone get bail

Answer 31

Bail = period between being charged and the trial date, free to carry on with their lives during this period

Bail Act 1976: presumption in favour of bail (s.4) as everyone is innocent until proven guilty. Only exception is if the D has commited a triable-either way or indicatable offence whislt on bail

A person will only be allowed bail for these offences where they have already served a prison sentence for such an offence

Question 32

Step 8: Article 5 (3)

Bail - when can someone not get bail

Answer 32

A D will not be granted bail if the court has substantial grounds to belive one or more of the following:

• D will fail to surrender to bail (will not turn up for next hearing)
• D is already on bail for another indictable offence
• D will interfere with witnesses
• D has broken bail conditions in the past
• need to be remanded in custody for their own protection
• D will commit more crimes if granted bail

Bail Act 1976 s.3 - officer can give conditions to bail where they believe accused may abscond, commit further offences or interfere with witness evidence

Question 33

Step 9: Right to take proceedings - Article 5 (4)

Answer 33

Article 5 (4) states anyone who is deprived of their liberty by arrest or detention has the right to bring proceedings to determine the lawfulness of his detention. This must be looked at speedily by a court and his release ordered if his detention is found unlawful

Question 34

Step 9: Right to take proceedings - Article 5 (4)

Detention at the police station

Answer 34

Should be reviewed periodically and the custody officer at the police station has two important roles:

1. Reviews: the custody officer is under a duty to release the suspect if there are no grounds to continue the detention
2. Records: the custody officer keeps a record of times and events (eg. interviews) to ensure time limits for detention have not been exceeded

Question 35

Step 9: Right to take proceedings - Article 5 (4)

Detention in prison

Answer 35

Reviewed by the Parole Board who deiced if a person convicted of an indeterminate sentence is eligible for release

Question 36

Step 9: Right to take proceedings - Article 5 (4)

Detention of people of unsound mind

Answer 36

Reviewed by a mental health review tribunal. Everyone being detained can have the detention reviewed by a judicial body who has the power to order release, if appropriate

What is considered ‘speedily’ will depend on the case

R v Secretary of State for the Home Department ex parte Noorkoiv: It was decided that a Parole Board hearing 3 months after the expiry of a tariff period of a life sentence breached Article 5(4) even though this was standard practice

Requirement for a speedy decision is also applied to reviews of detention

Question 37

Step 10: Rights to Compensation - Article 5 (5)

Answer 37

Provides that a person who has been the subject of unlawful arrest or detention is entitle to compensation provided there has been a breach ofo Article 5 (1) and 5 (4)

It is up to the court who finds the arrest or detention unlawful to decide how much to award the individual

However, it is unlikely that an award will be made for feelings of disappointment or frustration. Financial loss due to unlawful detention is recoverable