Article 5

Question 1

What kind of right is Article 5

Answer 1

Limited - can be taken away in certain situations
Austin - being locked up in prison is not the only way to have liberty restricted

Question 2

In order to be a breach of article 5 there must be

Answer 2

• A deprivation of liberty
• That does not fall under the exceptions
• And does not come under a lawful procedure

Question 3

A deprivation of liberty

Answer 3

Cheshire West - ‘under continuous supervision and control and not free to leave’

Guzzardi - difference between ‘restriction’ and ‘deprivation’ - depends on degree and intensity of facts

A and Others - indefinite detention without a charge is illegal. Cannot be locked up forever without chance of release.

Question 4

Deprivation of liberty - other exceptional situations

Answer 4

Kettling - Austin, Moos

TPIM - Sec State for Home Dept v E/ v JJ - 12hr vs 18hr restriction decided violation

Care Situations - usually in care - Cheshire West

Question 5

Does not fall within the exceptions of article 5(1) - list them

Answer 5

A) lawful detention after conviction by a competent court

B) lawful arrest or detention for non-compliance with an order made by a court

C) lawful arrest or detention with reasonable suspicion of having committed an offence

D) detention of a minor for educational supervision

E) lawful detention to prevent spread of infectious diseases, or people of unsound mind

F) lawful arrest or detention to prevent unauthorised entry to a country or prior to deportation

Question 6

Does not fall into exceptions - first half

Answer 6

a) lawful detention after conviction by competent court
Stafford - must be connection between original offence and ongoing detention

b) arrest or detention for non-compliance with an order made by court

Measures must be necessary as last resort and be ‘specific and concrete’ - McVeigh, O’Neill and Evans

c) lawful arrest or detention with suspicion of having committed an offence

Must be reasonable facts, includes breach of the peace (Steel)

Question 7

Does not fall into the exceptions - second half

Answer 7

D) detention of a minor for educational supervision
Koniarksa

E) lawful detention to prevent spread of infectious diseases, or people of unsound mind
Winterwerp - ‘true mental disorder’ to use exception

F) lawful arrest or detention to prevent unauthorised entry to a country or prior to deportation
Saadi

Question 8

Which is not a procedure prescribed by law

Answer 8

This might include:
Police powers (stop and search, arrest, detention)
Sectioning under the Mental Health Act
Care provisions