Article 5 Flashcards
What is Article 5 about?
Right to Liberty and Security of Person
Definition of Article 5(1)?
No one shall be subjected to arbitrary arrest or detention and that everyone has the right to be free from unlawful detention
What can deprivation include in Article 5?
Lawful detention of a person after conviction by a competent court
Lawful arrest or detention of a person for non-compliance with the lawful order of a court or to secure the fulfilment of any obligation prescribed by law
Lawful arrest or detention of a person bring him before legal authority on reasonable suspicion on having committed an offence or considered necessary to prevent committing another offence or fleeing.
What is Article 5(2) about?
Promptly given reason
What does promptly given reason mean under Article 5?
Everyone arrested or detained shall be informed promptly, in a language which he or she understands, charges against him or her
What is Article 5(3) about?
Brought promptly before judicial officer and trial within reasonable time
What are the 3 steps in Article 5(3)?
Individual should be brought promptly before a judge or other officer authorised by law to exercise judicial power; judicial officer should not be part of investigation and make binding decision which cannot be overturned by Government.
The right to release on bail, except when custody is justified. Bail Act 1976
Right to be tried within a reasonable time, so no one spends too long in detention.
What is Article 5 (5) about?
Right to compensation
Meaning of right to compensation under Article 5?
Everyone who has been the victim of unlawful arrest or detention shall have a right to compensation, arise from breach of 5.1 – 5.4. Unlikely to be awarded for feelings of disappointment or frustration, financial loss can be recovered.
Cases involved in Article 5?
HL v UK
Ammur v France
Shimovolos v Russia
Austin v UK
Kasparov v Russia
Ostendorf v Germany
Stafford v UK
Point of law in HL v UK for Article 5?
HL was informally detained for mental health reasons and not subject to standard compulsory detention procedure. Detention was arbitrary
Point of law in Ammur v France for Article 5?
Somalis held under strict police surveillance without access to legal and social assistance, also refused asylum. Held in transit zone which is a deprivation of their liberty.
Point of law in Shimovolos v Russia for Article 5?
S questioned about the purpose of his trip. Arbitrarily arrested in breach of Article 5.1
Point of law in Austin v UK for Article 5?
No breach of Article 5 as measure was taken in good fait, proportionate and enforced for no longer then necessary.
Point of law in Kasparov v Russia for Article 5?
Confiscated tickets and passports and left in office for 48h. Unlawful deprivation of liberty which was not justified for any lawful purpose
Point of law in Ostendorf v Germany for Article 5?
Claimant had been ordered to stay with group of supporters and did not do so. Breached Article 5.1 (b) not Article 5.1(c).
Point of law in Stafford v UK for Article 5?
S was released on license from a life sentence for murder, re-sentenced for fraud and not released after end of fraud sentence. Breach of Article 5 as no connection between his original conviction
What is a indeterminate prison sentence regarding Article 5?
Imposed if a court thinks an offender is a danger to the public and is one where:
No date will be set when the prisoner will be released
Spend minimum amount of time in prison before he or she is released
Parole Board decides if the prisoner can be released – often on licence
Mental Health Act 1983 link with Article 5?
Applied on basis for detention in hospital to be ‘warranted’ it must be NECESSARY in the sense that the objective set out in the relevant statutory test cannot be achieved by less restrictive measures
Case for Mental Health Act 1983 in Article 5?
MH v United Kingdom?
Point of law in MH v United Kingdom for Article 5?
Inability of women with Down Syndrome to challenge her detention in a hospital violated her Human Rights
Code A of police powers in Article 5?
Stop and Search
When can you stop and search someone regarding to Article 5?
Reasonable grounds
Code C of police powers in Article 5?
Detention
