Article 5 Flashcards
What is article 5?
The right to liberty and security
What does article 5(1) state?
5(1)Everyone has the right to liberty and security of a person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed law:
What does article 5(1)(a) state?
a) the lawful detention of a person after conviction by a competent court
What does article 5(1)(b) state?
b) 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
What does article 5(1)(c) state?
c) 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 or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so
What does article 5(1)(d) state?
d)the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before a competent legal authority
What does article 5(1)(e) state?
e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of a persons unsound mind, alcoholics or drug addicts or vagrants
What does article 5(1)(f) state?
f) 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
What does article 5(2) state?
Everyone who is arrested shall be informed promptly, in a language which he or she understands, of the reasons for his arrest and of any charge against him
What does article 5(3) state?
Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial
What does article 5(4) state?
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful
What does article 5(5) state?
Everyone who has been the victim of arrest or detention in contravention of this article shall have enforceable rights to compensation
Guzzardi v Italy 1981
Guzzardi was suspected of being in the Mafia. He was ordered to live on an island with limited contact and a curfew. The court decided this was more than a restriction of liberty, it was a deprivation. The decision of deprivation is based on degree or intensity. The court gave a list of things to be considered when deciding if a person was deprived of their liberty: type, duration, effects and manner of implementation of the measure in question.
Austin and ors v UK 2012
Kettling was used during a protest in London. Protesters where blocked into a small area and gradually released over a number of hours. HOL and ECtHR decided this was NOT deprivation of liberty as police were prevention violence, damage and injury.
Moos v MPC
High Court ruled that kettling of G20 protesters was unlawful however COA decided the police acted lawfully. Kettling should only be used as a last resort where there is evidence of an imminent breach of the peace.
Cheshire West and Chester Council v P 2014
P has cerebral palsy and downs syndrome. He required 24 hour care. The court of first instance decided this was a deprivation of liberty but in his best interests. COA held there was NO deprivation of liberty, Supreme Court said it was a deprivation of liberty.
Winterwerp v Netherlands 1979
Detention can only be justified if:
-the patient has a medically recognised mental condition established by a medical expert
-the disorder must be sufficient to justify the detention
-detention should only be for the duration that the disorder exists
-detention must be at and appropriate institution
-the detention should be periodically reviewed.
If the police ‘stop and question’ a person do they have to answer?
They are entirely free to refuse to answer, Rice v Connolly 1966
What is a stop & account?
Police can ask someone to stop and account for their behaviour, actions, presence in an area or possession of anything. All stops must be recorded, and a copy given to the person stopped. A record does not have to be made if the officer is asking in general information such as directions or if they have seen a certain person
What is a stop & search?
The police can stop and question a suspect and if necessary search their person and vehicle
Where are the rules for a stop and search held?
s.1 Police and Criminal Evidence Act 1984, also additional powers in s.60 Criminal Justice and Public Order Act 1994 and under 2.44 Terrorism Act 2000
What does the s.1 PACE state?
the police must have reasonable grounds for suspecting a person is in possession of stolen goods or prohibited articles
When do the police NOT need reasonable grounds?
If a senior officer has authorised searches in an area they suspect that there could be serious violence.
What must the suspicion be based on?
Intelligence, information or the suspects behaviour. NOT age, race or previous convictions
What are prohibited articles?
Weapons (Firearms Act 1968), things used to commit burglary, drugs (Misuse of Drugs Act 1971), terrorism (Terrorism Act 2000) or criminal damage
What must the suspect be told in a stop & search?
-Why they are being stopped and search
-The officer’s name/number and station
-Explanation of the grounds of the search
-If the police officer is not in uniform, they must show ID
What happens in a public stop & search?
-Can only remove coat, jacket, gloves (must move the suspect to a nearby place out of view if they wish to remove more clothing)
-Reasonable force can be used (s.117 PACE)
-Stolen or prohibited articles can be seized (s.1 PACE)
-Shoes can be removed if searched under the Terrorism Act, a disguise can be removed under the CJ&PO Act.
What has to be included in the record of the search?
-Must be made as soon as possible after the search
-Must include date, time, place, reason for search, self-defined ethnicity, outcome and if any injury or damage was caused
-A copy is to be given to the suspect
Roberts v CPM 2012
Being kept waiting during a stop and search is not a deprivation of liberty. Mrs Roberts was stopped and searched on a bus under s.60 CJ&PO based on the possibility of her having an offensive weapon. She had not been arrested or handcuffed or restrained.
Gillan & Quinton v UK 2010
A random stop & search under s.44 Terrorism Act 2000 was not lawful. Under s47A terrorism act 2000, there must be a reasonable belief an act of terrorism will take place.
When can a police officer arrest someone?
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
What is the necessity criteria for an arrest?
- 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 child or vulnerable person
- to allow a prompt and effective investigation
- to prevent the suspect disappearing
What does release pending trial mean?
Every defendant has the right to bail (s.4 Bail Act 1976). However, there is an exception to this rule if the D has committed a triable-either way or indictable offence whilst on bail.
Who reviews detention in prison?
parole board
who reviews detention of people of unsound mind?
mental health review tribunal
who reviews detention at police station?
custody officer
Stop and search section 1
A) they have reasonable grounds to suspect a person is carrying illegal drugs, weapon, stolen property, an item to commit a crime
B) it has been approved by a senior officer and without reasonable grounds if they suspect that serious violence could take place, a person is carrying a weapon or has used one, a person in a specific area
Cases
Osman v dpp
Michaels v Highbury corner magistrates 2009
Warrants and searches s16-18
16) warrants for premises
17) entry to premises for arrest
18) entry to searching premises after arrest
Arrest without warrant section 24
Constable may arrest without warrant
A) a person is about to commit an offence
B) in the middle of committing an offence
C) has reasonable grounds to suspect someone is about to commit an offence
D) he has reasonable grounds to suspect someone is committing an offence
Bibby v chief constable of Essex police 2000
Richardson v CCWM
arrest by private citizen, the serious organised crimes and police act 2005
Must state why being arrested
Necessity test
What is the necessity test?
- to enable the persons name or address to be ascertained
- to prevent a person: causing physical injury, himself or any other person, suffering physical injury, causing damage to property, committing an offence against public decency, causing an unlawful obstruction of the highway
- to protect a child or other vulnerable person
- to allow the prompt & effective investigation of the offence or conduct
- to prevent any prosecution for the offence from being hindered by the disappearance of the prison in question
Detention without charge s41-42
S41: a person who is arrested can only be detained for 24 hours without charge
S42: 12 hour extension can be added to this detention in order to preserve evidence
- Max of 96 is possible
- a max of 14 days without charge is possible under terrorism act
A custody officer must make a report: time of arrival, why and reviews
R v Samuel, r v grant
Part IV
Provides codes of practice in connection to:
A) searches without arrest
B) detention, treatment, questioning subjects
C) searches of premises
D) seizures of property
Code A
Reasonable suspicion can never be supported on the basis of personal factors alone
Code G
A person’s involvement or suspected involvement or attempted involvement
-reasonable grounds for believing that the persons arrest is necessary
Code C
Cells must be adequately heated, cleaned, lit and ventilated. A suspect should be offered two light meals & one main meal in any 24 hours, drinks are allowed
