Article 5 (AO1)

Question 1

What are the 7 restrictions that could be mentioned in AO1?

Answer 1

-Terrorism Prevention and Investigation Measures
-Care Orders
-Kettling
-Police Powers to Stop and Search
-S60 Stop and Search Orders
-Police powers to arrest
-Detention After Arrest

Question 2

Which of the Restrictions would you mention (of the 7?)

Answer 2

the relevant ones (1,2 or even 3 sometimes)

Question 3

What is the Article (always write) split into?

Answer 3

-Article 5
-Article 5 (a-f)
-Article 5(3) (WHEN BAIL)
-Article 5(4)
-Article 5(5)

Question 4

What do you write for “Article 5” (4 points and 2 cases)

Answer 4

-Article 5(1) states that “Everyone has a right to liberty and security of the person”
These rights guaranteed under Article 5 were originally set out in:
-The Magna Carta
-Habeus Corpus Act 1679
-Article 5 is made to prevent any arbitrary deprivation of liberty. So there is no definitive list as to what would amount to that deprivation.
(Guzzardi v Italy 1981)
(Saadi V Uk 2008)

Question 5

What is the principle of Guzzardi V Italy 1981?

Answer 5

When deciding if there has been a deprivation of liberty the courts should take into consideration the duration and manner of implementation

Question 6

What is the principle of Saadi v Uk 2008?

Answer 6

The courts should consider whether the deprivation was necessary and proportionate

Question 7

What do you write for “Article 5(a-f)”?

Answer 7

Article 5 can be lawfully restricted under Article 5 (a-f), these sections contain the situations where a persons detention and the deprivation of liberty would be deemed lawful and not an interference with article 5…

Question 8

When do you include Article 5(3)?

Answer 8

ONLY if has bail

Question 9

What would you write in Article 5(3)?

Answer 9

Provides three elements:
1. Right to be brought promptly before a judge
2. Right to be released on bail, except when custody is justified
3.Right to be tried within reasonable time
(S4 Bail Act 1974 - Everyone should be granted a bail whilst they wait for their trial, but this is not a guaranteed right)

Question 10

What would you write in Article 5(4)?

Answer 10

This section provides that everyone who is deprived of their liberty by arrest or detention shall be able to challenge the lawfulness of this detention in a court.

Question 11

What would you write in Article 5(5)?

Answer 11

This section provides that every one who is unlawfully deprived of their liberty shall have a right to compensation.

Question 12

What would you write for Terrorism Prevention and Investigation measures? (1 point 1 case)

Answer 12

These do not initially breach Article 5 and amount to a deprivation of liberty. However, if there are too many restrictions placed on the offender, then this can be an unlawful deprivation of liberty
(SoS v JJ - The control order was too restrictive as it was unlawful to put the C on an 18 hour curfew and severely limiting his social contracts)

Question 13

What would you write for care orders? (5 points + 1 case)

Answer 13

-Anyone who is subjected to a hospital order is not deprived of their liberty as this is allowed under Act 5(1)(a) as the detention has been agreed by the court and a court order authority
-The general rule that has been agreed by courts is that human rights have a universal character and physical liberty is the same for everyone, regardless of disabilities
-If there is not an order in place the detention in the care home will be deemed unlawful (if doesn’t have freedom to leave)
-RE DE - A persons liberty is deprived in a care home setting if they do not have the freedom to leave.
-The detention will only be lawful under Article 5if that person is of unusual mind, detention must be necessary and mental disorder must be persistent.
(Cheshire Water and Chester Councils v P)

Question 14

What is the principle for care orders case - Cheshire v P?

Answer 14

The supreme court set up a test for deciding if someone has been deprived of their liberty:
1. Is the person under continuous control and supervision?
2. Are they free to leave?

Question 15

What would you write for Kettling? (2 points + 1 case)

Answer 15

-Kettling is a process that is used by the police to conttrol crowds. The process itself allows police to contain crowds during demonstrations to prevent violence.
-The general rules are that this in itself will not amount to a deprivation of liberty if it is implemented proportionally and measures used were necessary, as stated in Austin v UK

Question 16

What would you write for police powers to stop and search? (2 points)

Answer 16

-S1 PACE - This gives the police the powers to stop and search individuals in a public place if they have reasonable suspicion that they are carrying a stolen good or a prohibited article. The officer can only ask you to remove a coat, jacket and gloves on the street
-Police must adhere to the rules, if they do not then this is an unlawful deprivation of liberty (The officer must identify themselves, reason for the search, can use reasonable force)

Question 17

What would you write for S60 stop and search? (1 point 1 case)

Answer 17

-Order will be in place for 48 hours, they don’t need to have any grounds for reasonable suspicion
(R V Metropolis Police 2015 - The CofA stated that this was not a deprivation of liberty as the police used their powers under S60 proportionally and in accordance with the law)

Question 18

What would you write for police powers to arrest? (1 point 2 case)

Answer 18

-A person can be detained of their liberty if they have been unlawfully arrested, considered lawful as long as the correct procedures and rules under the Police and Criminal evidence act 1984 (PACE) and codes of practise. Unlawful arrest breaches Article 5
(Shimovoles v Russia - If the police used their powers to arrest as a phishing exercise this would be an unlawful deprivation of liberty)
(Christie v Leachinksy - HofL stated that an arrest will only be a lawful deprivation of liberty if the change is known to the arrested person0

Question 19

What would you write for Detention after arrest?

Answer 19

Summary offences - Up to 24 hours
Triable either way offences - Extra 12 hours if needed, but a senoir office must agree
Indictable offences - 96 hours with agreement from magistrates
Terror offences - up to 14 days under the Protection of Freedom Act 2012
Detainee has a right to consult privately with a lawyer, may be delayed up to 36 hours if authorised for indictable offences though