article 5 Flashcards
what is this right for
Right to Liberty and Security
what type of right is this
limited
what does this mean
can be restricted in certain situations
what are these certain situations
Arrest, detention or stop and search on suspicion of having committed an offence.
Imprisonment following conviction
Hospital orders
Crowd control situations
what case backs this
Austin v Commissioner of Police of the Metropolis (2009)
what are the 3 requirements of article 5
Deprivation of liberty
Which does not fall within the exceptions
And does not come under a lawful procedure
what are the 6 valid restrictions for deprivation of liberty
A) Lawful detention after conviction by a competent court- guilty, sent to prison. Police and court powers.
B) Lawful arrest or detention for non-compliance with an order made by court- if you’ve had an injunction, fine or bail that you haven’t complied to.
C) Lawful arrest pr detention with reasonable suspicion of having committed an offence- police arresting as they’re suspected of being guilty of an offence
D) Detention of a minor foe educational supervision- can also include parents teaching life skills
E) Lawful detention to prevent infectious diseases, or people of unsound mind- like covid or people in psychiatric hospitals
F) Lawful arrest or detention to prevent unauthorized entry to a country or prior to deportation- not legally allowed in country
what does deprivation of liberty mean
physical freedom
what case backs this
Engel v Netherlands 1979
what case tells us its based upon the ‘degree and intensity’ of the restrictions, based on the type, duration and effects
Guzzardi v Italy 1981
what case tells us its whether the individual is ‘under continuous supervision and control and not free to leave’
Not based on the level of comfort in living conditions
Cheshire West v P 2014
concept of deprivation meaning
So – if someone if going to be kept under continuous supervision and control and is not free to leave, this needs to be authorized in a procedure prescribed by law.
case example of this
HL v UK 2005, HM v Switzerland 2004
whichever gng
ur doing great xx
what type of detention is not allowed
indefinate
what case tells us this
A and Others v UK 2009 (without charge)
what case tells us you cant be locked up indefinitely without a charge
James v UK 2012
what are the 3 exceptional situations
kettling
Use of Control Orders and TPIM’s
care situations
kettling case
Austin v UK (2012)
control orders case
Allows home secretary and control activities of a person suspected of involvement in terrorism
what is TPIM
(“Terrorism Prevention and Investigation Orders”) replaced these in 2012
Used against people who are suspected of being involved in terrorism, but who can’t be charged, prosecuted or deported
case example
Sec of State for Home Dept v JJ (2007)
care situations case
Cheshire Council v P (2014)
why may there be a deprivation of liberty here
if in a care facility
Lady Hale in Supreme Court held he was ‘under continuous supervision and control and was not free to leave’, and was therefore deprived of his liberty as he was not in a position to consent to these arrangements for care.
(a) lawful detention after conviction by a competent court cases (2)
case 1-Stafford v UK (2002)
case 2- Engel v Netherlands 1976
case 1 meaning
There must be a connection between the original offence and the continued detention
case 2 meaning
This can only be detention after conviction by a competent, impartial and independent court
(b) lawful arrest or detention for non-compliance with an order made by a court case
McVeigh, O’Neill and Evans v UK 1981
(c) lawful arrest or detention with reasonable suspicion of having committed an offence cases (2)
case 1-Steel v UK (1998)
case 2-Fox, Campbell and Hartley v UK (1990)
case 1 meaning
Includes breach of the peace even though this is not technically a criminal offence
case 2 meaning
Applicants arrested on suspicion of being a terrorist and detained for 72 hours
Held this suspicion was not reasonable so there was a breach of article 5
(d) detention of a minor for educational supervision case
Koniarksa v UK 2000
what does this case tell us
Refers to under 18’s being detained in certain circumstances.
(e) lawful detention to prevent the spread of infectious disease, or of people of unsound mind cases
case 1- Winterwerp v Netherlands (1979)
case 2- Ashingdone v UK (1985)
case 1 meaning
Person of unsound mind must have a “true mental disorder” to be hospitalized under this section
case 2 meaning
Involuntary hospitalization must be in an appropriate institution, e.g. a ‘therapeutic environment’
what act can be used to justify infectious diseases (think 2020 gal xx)
coronavirus act 2020
justified as a dep of liberty
(f) lawful arrest/detention to prevent unauthorised entry into a country, or to detain prior to deportation case (think ur pk friend)
Saadi v UK 2008
are people under this section criminals
People detained under this section are not criminals – however their detention is justified due their status as an illegal immigrant
whats the third requirement
Which is NOT a procedure prescribed by law
what might be prescribed (3)
police powers (stop and search, arrest, detention) under PACE
Sectioning under the mental health act
Care provisions
what 4 sections of article 5 are other provisions
Article 5(2)
Article 5(3)
Article 5(4)
Article 5(5)
Article 5(2) meaning
everyone must be informed of the reason for their arrest in a language they understand
case example (think (c) lawful arrest or detention with reasonable suspicion of having committed an offence)
Fox Campbell and Hartley v UK- delay of 7 hours was okay
Article 5 (3) meaning
everyone arrested should be brought before a judge “promptly”
how many days is a minimum
4 days
what case tells us this
McKay v UK (2006)
Article 5(4) meaning
detainee has the right to challenge the legality of the detention
Article 5(5) meaning
right to compensation for unlawful arrest and detention
