Article 5 Flashcards
What is stated in Article 5.1?
Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with the law.
How is a deprivation of liberty justified under 5.1 (a)?
An individual can be detained after a conviction
How is a deprivation of liberty justified under 5.1 (b)?
An individual can be detained under a warrant for not paying a fine, being in contempt of court or for breaching bail conditions
How is a deprivation of liberty justified under 5.1 (c)?
An individual can be detained on suspicion of having committed an offence
What is stated in Article 5.2?
Everyone who is arrested should be informed promptly, in a language that they understand, the reason for their arrest and the charges against them.
What is stated in Article 5.3?
Everyone arrested under Article 5.1 (c) should be brought promptly in front of a judge and entitled to a trial within a reasonable time.
What is stated under Article 5.4?
Everyone deprived of their liberty is entitled to take proceedings to decide the lawfulness of their detention and their release order if not.
What is stated under Article 5.5?
Everyone who is the victim of an arrest in contravention to this article has an enforceable right to compensation
What was the outcome of HL v UK?
The ECtHR ruled that the claimant’s detention for mental health purposes was arbitrary because they did not have the capacity to consent and there were no safeguarding rules in place
What was the outcome of Austin v UK?
The police kettled protesters and pedestrians during anti-globalisation riots and many people didn’t have access to food, water and toilets for over seven hours during this. The ECtHR ruled that there hadn’t been a deprivation of liberty because the cordon was the least intrusive method to deal with a potentially violent and dangerous situation
What was the outcome of Shimovolos v Russia?
The ECtHR ruled that there had been a deprivation of liberty for a detention of 45 minutes because he was threatened with force to go the police station and was not allowed to leave
When would a detention be arbitrary?
If there was no connection between the detention and the reason given for it
What was the outcome of Stafford v UK?
A man was released on license for murder and was rearrested for cheque fraud. When he wasn’t released at the end of his fraud sentence, his detention became arbitrary because there was not a sufficient connection between his original conviction for murder and the risk that he would commit further non-violent offences
What was the outcome in Fox, Campbell and Hartley v UK?
The detention was arbitrary because there was not enough evidence that the police had a reasonable suspicion
What was the outcome in Murray v UK?
The detention was valid because there was reasonable evidence that the police had a reasonable suspicion
Under Article 5.2, how quickly must detained individuals be given the reasons for their arrest, in a language that they understand to be considered “prompt”?
In Fox, Campbell and Hartley v UK (1990), there was a delay of seven hours where the police didn’t explain why the individuals had been arrested which was ruled to be too long.
What is covered by ss1 and 2 of PACE 1984?
Stop and search: the police has the power to search people or vehicles. This should only be if the officer has reasonable grounds for suspecting they will find stolen or prohibited items and these reasonable grounds must exist before the person is stopped. Reasonable grounds must be based on some form of intelligence and not personal belief or the suspect’s behaviour.
What is covered by s24 PACE 1984?
It allows a police officer to arrest a suspect without a warrant if they are about to commit an offence, are committing an offence or the officer has reasonable grounds to believe that they are going to or have already committed an offence.
What is the two-part test for reasonable grounds of suspecting a person is guilty of offence?
Did the officer suspect the person was guilty? (SUBJECTIVE)
Did the officer have reasonable proof for that suspicion? (OBJECTIVE)
What is covered by s28 PACE 1984?
It provides that the arrested person must be informed that they are under arrest
What are reasonable grounds for an arrest?
1) Giving the police time to check the name or address of the detainee
2) Prevents the person from causing or suffering from harm
3) It allows the effective investigation of an offence
4) It prevents the person from disappearing
What case shows that an arrest can also be exacted to prevent a breach of the peace?
Austin v Commissioner of the Police of the Metropolis
Give an example of where the arrest was deemed unlawful?
Murphy v Oxford - the defendant was told they were being arrested for burglary but were not told which date the alleged offence was on and what the burglary was for
How was it decided that judges should set tariff periods?
In Thompson and Venables v UK (1999), the power of the Home Secretary to set tariff periods was challenged and the ECtHR confirmed that this should be a judicial power in relation to offenders under the age of 18. The same was decided in Anderson v UK (2002) for adult offenders. Since 2003, judges have set the tariff periods.
Where are the guidelines that set out how long murderers should spend in prison before being considered for parole?
Criminal Justice Act 2003
How long can a person be kept in custody when being charged with an offence under PACE 1984?
They must be charged within 24 hours or released. For more serious offences such as murder, the time period can be increased with the approval of a magistrate or senior officer. For offences of terrorism, the period is up to 14 days in custody.
Give an example of political interference with a tariff period?
For the case of Myra Hindley, the Home Secretary increased the tariff period from 25 to 30 years when she had served the majority of the 25 years.
Who set the tariff period before 2003?
Before the Criminal Justice Act 2003, the Home Secretary was responsible for setting the tariff period. This was viewed as political interference.
How many of the prison population is in pre-trial detention?
14%
What are the reasons for refusing someone’s bail?
1) concerns they would abscond
2) concerns they would commit further offences
3) concerns they would interfere with witnesses
4) if they have failed to attend court
Why are the rules surrounding bail complicated?
The Bail Act 1976 was amended by new legislation which makes it complex to follow
