article 5 Flashcards
what does article 5 protest
- right to liberty and security of the person
what is the meaning of liberty under art 5
defined in engel v Netherlands as physical liberty of the person
what is the meaning of deprivation of liberty
- a persons liberty is restricted/ they’re detained
- state creates the detention
- the person doesn’t consent
- guzzardi v italy - depends on the degree and intensity
what is the acid test for deprivation of liberty in care settings
- Cheshire west v chester council v p
- persons is deprived of liberty if they are -
- under continuous supervison and control
- not free to leave
does a mentally incapacitated person have the same right to liberty
yes their rights under art 5 are the same as everyone else
what are the lawful grounds for depriving someone of liberty under art 5 1
a)0 detention after conviction
2) failure to comply with lawful obligation
3) suspicion of an offence
4) detention of a minor for educational purpose or court appearance
e) public health/mental health grounds
f) immigration control, deportation or extradition
what are the winterwerp conditions for detaining mentally disordered patients
- must be of unsound mind
- confinement must be necessary
- disorder must persist
what is the signficance of ashinghande v uk
mentally ill pplnshould be detained in a. therapeutic enviro
what does art 5 2 require when someones arrested
informed promptly of reasons of arrest, and charges against them
fox, 7 hours accepted as prompt’
what does art 5 3 guarantee
promptly before a judge , have right to trial within reasonable time / or release pending trial
Custody Time Limits (CTLs) → Protects against excessive pre-trial detention.
what case established that 4 days and 6 hours aint prompt
brogan case breach of art 5 3
what factors determine a reasonable attention period
complexity of the case
seriousness of the offence
time needed to investigate
what right does art 5 4 provide
right to challenge deprivation of liberty in court
how often must detention be reviewed
must be a regular and periodic review
stafford v uk
wat was the key issue in James v uk
prison failed to provide rehab needed for release , breach art 5 1,4 and 13
what right does art 5 5 provide
right to compensation for unlawful det
can parental restrictions on a child amount to a breach of art 5
yes depending on the degree of control
what are tpims and how do they relate to art 5
TPIMs (Terrorism Prevention & Investigation Measures) replaced Control Orders – may involve deprivation of liberty.
what is ketting, when is it lawful
- police tactic to contain crowds - lawful if
Proportionate & least intrusive (Austin case).
Necessary to prevent breach of peace (McClure & Moos).
Mengesha – Police cannot demand personal details before release.
What section of PACE 1984 governs stop and search?
Sections 1 & 2 + Code A – requires reasonable suspicion.
What must a police officer provide when conducting a stop and search?
GOWISELY:
Grounds for search.
Object of search.
Warrant card (if not in uniform).
ID of officer.
Station of officer.
Entitlement to search record.
Legal power under which search is carried out.
You are being detained for a search.
What was the key issue in Osman?
Police failed to provide ID & station, breaching Code A.
What does s60 of the Criminal Justice & Public Order Act 1994 allow?
a blanket search order for a specific area if serious violence is anticipated.
What does s44 of the Terrorism Act 2000 allow?
Random stop & search powers without suspicion
What was the ruling in Roberts?
Waiting for an s60 stop & search did not breach Article 5.
Under what law can police arrest without a warrant?
s24 PACE 1984 – Police may arrest if a person is, has, or is about to commit an offence.
What happened in Gillan?
Random search under s44 found to breach Article 5.
What must police provide on arrest?
s28 PACE – Fact & reason for arrest.
Christie v Leachinsky – Failure = false imprisonment.
What rights do detainees have under PACE Code C?
Right to a solicitor (s58 PACE).
Right to inform someone of arrest (s56 PACE – R v Samuel).
Right to consult Codes of Practice.
Custody Officer must review detention regularly.
