Article 5 - Case List Flashcards
Guzzardi v Italy: Facts
D was suspected of being in the mafia. He was ordered to live on an island with limited contact with others under a curfew
Guzzardi v Italy: Decision
ECtHR held that this was more than a restriction of liberty, it was a deprivation as required by 5 (1)
Deprivation will be based on ‘degree and intensity’, and the court will consider the type, duration, effects and manner of implementation
Cheshire West and Chester Council v P: Facts
P was incontinent and had a habit of tearing pieces off his incontinence pad and eating it. His carer’s had tried to interven by getting him to open his mouth and using their fingers to try and sweep out the material
So as to prevent hum accessing the pad, he was placed in an all-body suit like a baby-grow which he couldn’t open from the front
Cheshire West and Chester Council v P: Decision
Austin and Ors v UK: Facts
Police stoof in lines across exits from Oxford Circus during a demonstration. People were allowed to leave the ‘kettle’ only with permission but many were held for more than 7 hours
This was necessary to prevent damage/injury
Austin and Ors v UK: Decision
HOL considered if measured were used in good faith, proportionate and enforced for no longer than necessary, there could be no breach
Lord Hope: ‘person can be deprived of his liberty even if his departure is not prevented by a locked door or other physical barrier and even though he may be allowed extensive social and other contact with the outside world’
R (Moos) v Metropolitan Police Commissioner: Facts
Court ruled police had acted unlawfully in ‘containing’ G20 protestors. Made clear that police must be in reasonable apprehension of an ‘imminent breach of the peace’ before taking ‘preventative action’
R (Moos) v Metropolitan Police Commissioner: Decision
Police have no arbitrary power to kettle people
Shoudd only be used as a lat resort when there is evidence of an imminent breach of the peace
JE v DE: Facts
D suffered a stroke and was blind with short term memory less, dementia and lacked ability to decide where to live
DE and JE temporarily lived together but DE then lived in many care homes despite wanting to live with JE
Deprived of liberty as he wasn’t ‘free to leave’
JE v DE: Decision
The crucial quesion is whether he is ‘free to leave’, not only for approved outings but also to permanently live where or with whom he chooses
There can be deprivation of liberty in the absence of a lock or physical barrier
Winterwerp v Netherlands: Facts
W was detained in hospital and complained his detention had divested him of his ability to administer his property therefore there had been determination of his civil liberties and obligations without guarantee of a judicial procedure
Held: ‘the individual concerned should not be deprived of his liberty unless he has reliably been shown to be of ‘sound mind’’
Winterwerp v Netherlands: Decision
Detention of a mentally disordered patient can 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
- detention should be periodically reviewed
Ricketts v Cox: Facts
Suspect was very abusive and hsotile when questionned. He was held to be guilty of ‘obstructing a police officer in the execution of his duty’
Ricketts v Cox: Decision
You can refuse to answer questions asked by the police, but it is an offence to be hostile
R (Roberts) v Commissioner of Police of the Metropolis: Facts
R was stopped and searched on a bus under s.60 CJPO based on the possibility of her having an offensive weapon. She had not been arrested or handcuffed or restrained
R (Roberts) v Commissioner of Police of the Metropolis: Decision
Being kept waiting during a stop and search procedure is not a deprivation of liberty
R (Gillian) v Commissioner of Police of the Metropolis: Facts
A random stop and search under s.44 Terrorism Act 2000 was not lawful
R (Gillian) v Commissioner of Police of the Metropolis: Decision
Under s.47 Terrorism Act 2000, there must be a reasonable belief an act of terrorism will take place
Osman v DPP
The stop and search was unlawful as the officer didn’t give their name or station to the suspect
Stafford v UK
Continued detention after a convention must be linked to the conviction and cannot be arbitrary
Shimovolos v Russia: Facts
D was Russian and his name was tagged as a potential threat and was arrested and questioned
Shimovolos v Russia: Decisions
Article 5 (1)(c) didn’t allow detention as a general policy of prevention, of people who were perceived to be dangerous or likely to offend
PACE s.24 1984
- ‘reasonable suspicion’
- ‘necessary’
Fox, Campbell and Hartley v UK: Decision
The police must inform the detainee they’re under arrest and why
This can be up to 7 hours after the arrest
Christie v Leachinsky: Decision
The police must issue the caution so they are informed of what’s happening and why. Failure to do so may amount to false imprisonment
R v Samuel: Decision
Refusal of access to a solicitor before the final interview was unjustified and the interview shouldn’t have taken place
Breach under s.58 PACE 1984
Brogan v UK: Decision
Suspected terrorists were held for 4 days and 6 hours from arrest to being brought before a judge. This was considered too long
McKay v UK: Decision
Court held 4 days is the maximum time fro arrest to being brought before a judge
R v Secretary of State for the Home Department ex parte Noorkoiv: Decision
It was decided that a Parole Board hearing 3 months after the expiry of a tariff period of alife sentence breached Article 5(4) even though this was standard practice
Requirement for a speedy decision is also applied to reviews of detention
R v Howell: Decision
there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance.
Mengesha v Commissioner of Police of the Metropolis: Decision
containment to prevent a breach of the peace was lawful but not retention of photographs and details of breach of the peace
