Article 5 Flashcards
What does article 5 aim?
Tries to prevent people being arbitrarily detained by the state.
What are the main principle under Article 5 ECHR?
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with procedure prescribed by law.
What is article 5 a-f expressing
A) lawful arrest w/ competent court
B) lawful arrest for noncompliance
C) lawful arrest for suspicion or having committed an offence
D) detention of a minor for education or lawful detention
E) lawful detention to prevent spreading disease
F) lawful arrest to prevent unauthorised entry to a country
What does article 5(1) express?
There are aspects to a confinement which make it a ‘deprivation of liberty’
What are the three elements stated under article 5(1) that make it a ‘deprivation of liberty’?
- The person has been detained for a period of time
- There has not been consent to the detention by the trainee
- The state has set the reason for the confinement
What amounts to a deprivation of liberty (2 cases) ?
Guzzardi v Italy –> A man who was suspected of criminal activities was sent to a remote island where he was under a curfew, the ECtHR held that these restrictions amounted to a deprivation of liberty and said that the distinction between deprivation and restriction is merely one of degree or intensity.
Murray v UK –> ECtHR held that being held in custody for less than three hours for questioning was a deprivation of liberty
What are control orders and TPIMs?
Emergency powers were introduced after 9/11 which allowed indefinite detention of anyone suspected of involvement in terrorism.
Control orders allowed various restrictions to be placed on an individuals movements including taking away their passport etc.
TPIMS are a slightly softer version of control orders which can be maximum of two years in length, however a new order can be made once the previous one expires
Cases regarding control orders and TPIMS?
A v secretary of state for the home department –> following this case, control orders were introduced under the prevention of Terrorism Act 2005
SS Home Department v JJ –> Persons under a control order were subject to an 18 hour curfew, visitors had to be authorised, and for the hours they were not under curfew, their movements were still restricted
Cases regarding mentally disordered patients?
Patients must be held ‘in accordance with a procedure prescribed by law’ as required by 5(1)
Winterwerp v Netherlands –> C was detained in a psychiatric hospital and his applications to be discharged were dismissed - he had not being given a proper hearing, and his detention was unlawful under article 5(1)(e)
Cheshire west v P –> Severe cerebral palsy and down syndrome - he was moved to live in authority accommodation, the court of appeal stated this did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities
What is Kettling?
Kettling is when the police contain protesters for an extended period, not allowing them to leave.
What are some Kettling cases?
Austin v Commissioner of police of the metropolis –> people were held for up to seven hours during a demonstration in London - There was no breach as the measures were proportionate and enforced for no longer than was necessary
Mengesha v Metropolitan police commissioner (2013) –> Kettling 100 people in a protest is valid but the filming and taking details of people before they were allowed to leave was a breach.
These cases demonstrate there are several factors relevant in determining whether there was been a deprivation of liberty.
What are the police stop and search powers?
Stop and search - A formal arrest is subject to the provisions of article 5, but the position regarding stop and searches are less clear
- Stop and search powers under s1 of the police and criminal evidence act 1984, s44 of the terrorism act 2000 and s60 of the criminal justice and public order act 1994
-Both s1 PACE and s44 Terrorism act require the police to have ‘reasonable suspicion’.
What does section 1 PACE allow?
This provision allows the right to stop and search people and vehicles in a ‘public place’.
- There must be reasonable grounds for suspicion
- The police officer must give his name and station
- They must make a written report
- Public searches s2(9) PACE - they can only remove coat jacket and gloves.
- Code A contains guidance on when stop and search powers should be used and states that the power must be used, fairly, responsibly and with respect
- There must be and objective reason for a stop and search
What does article 5(2) cover?
‘Everyone who is arrested shall be informed promptly , in a language which he understands, of the reasons for his arrest and of any charge against him.’
- Mostly covered in PACE 1984 and Code G of the Police Codes of Practice
- The explanation of the reasons for arrest doesn’t have to be given in full at the point of arrest, but should be given asap
Cases regarding article 5(2)
Christie v Leanchinsky - Failure to comply with this requirement will make an arrest unlawful and may amount to false imprisonment
Taylor v CC Thames Valley Police (2004) - A 10 year old boy was arrested for ‘violent disorder at a previous place and time’. His mother was present when he was arrested and ‘violent disorder was held to be sufficient information of the grounds of his arrest
