Article 5+ 6

Question 1

What is article 5 about ?

Answer 1

The right to liberty and security - which means it cannot be interfered with by the state s it is allowed under the subsections a-f or the state derogates

• The right to security places a positive obligation on the state to explain why a person has been detained

Question 2

What is a positive obligation

Question 3

What does Article 5(1) say .

Answer 3

Article 5(1) states that everyone has the right to liberty and security of person. No one shall be deprived of his liberty

Question 4

Explain what is meant by a person must be deprived of their liberty

Answer 4

This means that merely a restriction of a person’s liberty will not be sufficient. They must be deprived which was confirmed in the case of Guzzardi v Italy

Question 5

Why is the case of Guzzardi v Italy significant ?

Answer 5

Because it shows a deprivation of liberty and confirmed that a deprivation of ones ;liberty will be based on ‘degree or intensity’

• Type
• Duration
• effects and manner of implementation of the measure in question

Question 6

What cases show a deprivation of liberty during protests ?

Answer 6

R (Moos) v Metropolitan Police Commissioner - Held that ketteling during the g20 protests was seen as unlawful

Question 7

What case shows Deprivation whilst in care ?

Answer 7

Cheshire West and Chester Council v P - Which held that living arrangements based made for people who lacked mental capacity was a deprivation of liberty - LADY HALE confirmed that Deprivation was based on the fact that ‘the applicant was under continuous control and was not free to leave’ the accommodation

• JE v DE and Surrey County Council

Question 8

What is meant by deprivation and mentally disordered patients.

Answer 8

This means that patients must be held in accordance with a procedure prescribed by law which is required by 5(1)

Question 9

What case shows a mentally disordered patient being deprived of their liberty ? And what did this confirm

Answer 9

Winterwerp v Netherlands
- This case confirmed that detention canh only be justified if:
• the patient has a medically recognised mental condition established by a medical expert
• the disorder must be sufficient to justify the detention
• detention should only be for the duration that the disorder exists
• detention must be at an appropriate institution.
• The detention should be periodically reviewed

Question 10

Can a person be deprived of their liberty by by police ?

Answer 10

Yes, specifically police powers of stop and search all potentially interfere with article 5

Question 11

What does 5(2) state ?

Answer 11

5(2) Everyone who is arrested shall be informed promptly, in a language which they understand, of the reasons for his arrest ny charge against them

Question 12

What does 5(3) suggests ?

Answer 12

• Everyone arrested or detained in accordance with shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.
• This means that everyone arrested or detained need to promptly before a judge or released in a reasonable time pending trial

Question 13

What does it mean by Brought promptly before a judge ?

Answer 13

This means that any long delay put before an officer can be considered arbitrary promptly’ is interpreted by the ECtHR on a case-by-case basis. In Brogan v UK four days and 6 hours was considered as too long

Question 14

What does 5(4) mean ?

Answer 14

That the lawfulness of his detention shall be decided speedily by the4 court

Question 15

What is the definition of 5(4)

Answer 15

) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Question 16

What happens should happen at the detention at the police station ?

Answer 16

1. Reviews – the custody officer is under a duty to release the suspect if there are no grounds to continue the detention.
2. Records – the custody officer keeps a record of times and events (e.g. interviews) to ensure time limits for detention have not been exceeded.

Question 17

What is meant by the detention in prison ?

Answer 17

This means that the parole board should review and decide if a person convicted of an indeterminate sentence is eligible for release.

Question 18

What happens when a person is detained and they have an unsound mind ?

Answer 18

This means that there will be a review by a metal health review tribunal

• Everyone being detained can have the detention reviewed by a judicial body who has the power to order release R v Secretary of State for the Home Department ex parte Noorkoiv (2002

Question 19

What is 5(5) ?

Answer 19

The right to compensation

Question 20

What is the definition of 5(5)

Answer 20

) Everyone who has been the victim of arrest or detention in contravention of this article shall have enforceable rights to compensation.

Question 21

What are some evaluations to Article 5 ?

Answer 21

Restrictions permitted by the ECHR- Every individual has the right to liberty and security. It requires the state to have safeguards in place to prevent arbitrary detention and also there is a positive obligation to explain why someone is being detained in a language they understand. This is an advantage because it shows human rights are taken seriously

Police powers - stop & search, arrest and detention should be used fairly and without discrimination. There are detailed safeguards in place to protect an individual from arbitrary use of power by the police. The rules contained in PACE, other Acts of Parliament and the Codes of Practice are there to ensure rights under Article 5 are not breached

Protests - Kettling has been seen as an issue and very controversial because violations that have been alleged have been unsuccessful with the courts eg in Austin and ors v UK (2012) kettling was justified by both the House of Lords and then the ECtHR

Question 22

How can police powers be evaluated ?

Answer 22

• Article 5 enables being told the officer’s name, number and station, and being told the grounds for the search or arrest, are there to ensure that an individual can challenge their treatment if they believe there has been a violation of their rights.
• However there have been some criticisms because of the s.60 Criminal Justice and Public Order Act 1994 and s.44 Terrorism Act 2000 have been criticised because s.60 should only be authorised when there is anticipation of violence however the police force forces make use of this power in less serious situations that should be subject to the stricter rules of a s.1 PACE stop & search

Question 23

What is article 6 ?

Answer 23

This is the right to a fair trial reinforced by the Magna carta 1215 ‘to no one shall we sell, to no one shall we refuse or delay, right or justice’

• Woolmington v DPP leading case that protects the right to a fair trial

Question 24

What case is leads on ideas on protecting the right to a fair trial @?

Answer 24

Woolmington v DPP (1935) protects the presumption of innocence and puts the burden of proof on the prosecution:

Question 25

What does 6(1) cover ?

Answer 25

covers both criminal and civil cases although criminal trials are given greater protection in Article 6(2) and (3).

Question 26

What is the definition of article 6(1)

Answer 26

, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Question 27

What is meant by civil rights and obligations in 6(1)

Answer 27

These are private rights in areas such as employment law, family law, property law, personal injury etc. These are usually areas of civil law where money is involved

Question 28

What is meant by Criminal charge ?

Answer 28

The ECtHR will decide if an offence is criminal according to their definition by looking at the nature of the offence and the severity of the penalty. The ECtHR has accepted that anti-social behaviour orders

Question 29

What is meant by PUBLIC ?

Answer 29

- The right to a public hearing is in place to protect individuals from secret decisions that may breach their rights and limit their ability to appeal. Trials held ‘behind closed doors’ have the illusion of corruption and go against the notion of natural justice - However, Article 6(1) may allow cases involving national security to be held in private. In R v Incedal and Rarmoul-Bouhadjar

Question 30

What is meant by reasonable time

Answer 30

Criminal and civil cases should be heard within a reasonable time. What is considered ‘reasonable’ will depend on the complexity of the case. eg Beggs v UK (2012)- there was a violation of article 6 because his appeal took over 10 years

Question 31

What case showed a violation of article 6 because the case was not heard in a reasonable time ?

Answer 31

Beggs v UK

Question 32

What is meant by independent and impartial tribunal ?

Answer 32

This means that the decision-makers in the court must be impartial from political pressure and the parties themselves. If there is evidence of prejudice or bias in a civil case, damages will be awarded - R v Bow Street Magistrates, ex parte Pinochet Ugarte where hol bjudges railed to declare his membership

Question 33

What case can be used to show that the tribunal was not independent or impartial ?

Answer 33

R v Bow Street Magistrates, ex parte Pinochet Ugarte - Where a lord failed to declare declare his membership of Amnesty International.

Question 34

What are the seven principle's of a fair trial ?

Answer 34

1. Access to court - Golder v UK 2 Equality of arms - Steel and Morris v UK 3. Attendance at court and the right to participate - T and v V UK 4. Rules of evidence - Othman (Abu Qatada) v UK ( 5. Presumption of innocence - Murray v UK ( 6. Legal representation- Benham v UK (1 7. A reasoned and final judgement

Question 35

Explain what is mean by access to court. Give a case example

Answer 35

This means that everyone should have access to a court system in a reasonable time and see there solicitor - Golder v UK- Violation of article 6 because the right to a fair trial includes access to court.

Question 36

Explain what is meant by equality of arms as a principle of what is needed to ensure a fair trial

Answer 36

Equality of arms means that no party should be at disadvantage to the other. there should be a fair balance - Steel and Morris V UK - Violation of article 6 couldn't afford legal aid against McDonalds

Question 37

What famous case that surrounds children violates one of the seven principles regarding the right to a fair trial ?

Answer 37

T and V UK - violation 6 in that they had not had a fair trial because they were tried in the wrong court where they could not understand the proceedings

Question 38

Explain what is meant by attendance at court and the right to participate as one of the principles of the right to a fair trial.

Answer 38

The defendant has a right to attend court and participate unless it is a case of national security or the chid is a young offender ie T and V V UK - however some peoples access to court is restricted ie in steel and morris v uk even though legal aid is available it is restricted

Question 39

What case showed that access to court can be restricted ?

Answer 39

Steel and Morris v V UK

Question 40

Explain what it meant by reasonable time ?

Answer 40

This is apart of the seven principles of article 6 regarding a fair trial - Reasonable time means that civil and criminal cases should be heared within a reasonable time which will be decided on a case by case basis for example Beggs v Uk where article 6 was violated

Question 41

Explain what is meant by an independent and impartial tribunal as a element under article 6 regarding fair trials ?

Answer 41

This means that decision makers in the court must be impartial from political pressure and the parties themselves and if there is evidence of prejudice then damages will be rewarded for example R V BOW STREET MAGISTARTES EX PARTE PINCHONET UGARTE

Question 42

Explain what it means by legal representation as a principle of what is required for a fair trail under article 6

Answer 42

Legal representation is provided for in article 6(3) but also has a general aplication in 6(1) when deciding if a case is fair or not. - Although there is no absoulte right to legal representation but being unable tp afford legal representation fails the merits tests which is the interests of justice example Benham v UK vioation of article 6

Question 43

What case showed that not being eligible for legal representation was a violation of article 6 ?

Answer 43

Benham v UK

Question 44

Explain what is meant by a reasoned and final judgement as a principle of what is required for a fair trial under article 6

Answer 44

This means that a clear civil or criminal trial should have a clear final decision at the end that includes the main issues that were taken into account in the decision making process

Question 45

What is meant by article 6(2)

Answer 45

This is the idea that every one charged with a criminal offence will be presumed innocent till proven guilty according to the law

Question 46

What case does 6(2) link to

Answer 46

Only applies in criminal cases but links to common law decisions in Woolimington v DPP

Question 47

What is meant by 6(3)

Answer 47

This is the idea that everyone charged with a criminal offense has minimum rights such as a. To be informed promptley in a language that they understand b. to have adequate time and facilities to prepare for there defence c. to defend himself or have legal assistance d. to examine or have examined witnesses agaisnt him e. ASSITANCE OF AN interpreter

Answer 48

3. Right to particpate and attend court but may not be because of national security of lack of maturity ie T AND V V UK 4. Rules of evidence which is decided on the basis of the echr who decided which rules are fair ie Gafegen v Germany evidence gained through ill treatment is unfair 5. Presumption of innocence - similar to article 6(2) in relation to criminal case and 6(1) when deciding if a trail is fair. The right to silence is not an absolute right judges can draw advise inferences from it ie Murray v UK