Article 5 Eval

Question 1

Contains fundamental values

Answer 1

Protects liberty from abuse and control by state
Detention can only be for legal reasons - s.5(1)(a)-(f) or procedure by law
Flexibility offered by ECtHR for special cases can be seen as arbitrary
e.g. Kettling - Austin - allowed but only as last measure and to avoid violence

Question 2

Violations of article 5 are high

Answer 2

Second only to article 6
3982 vios from 1959-2019, 70 in UK
Shows need for protection of right

Every states criminal justice system takes the freedom of those who commit crimes so can expect accused breaches to be high and shows need for protection to be strict

Question 3

Distinction drawn between deprivation and restriction

Answer 3

Article 5(1) says that there is a difference between dep and restriction
Guzzardi says that there is a difference and it depends on the degree and intensity of the facts - public fairness but lack of clarity on what is/isnt a deprivation

However case of Cheshire West states under continuous supervision and control and not free to leave - objective test so should help on the clarity

Question 4

Vulnerable claimants

Answer 4

Questions about those with severe disabilities or mental issues should be given same rights as those who dont

Cheshire West talked about this - Lady Hale questioning whether those who have these disabilities should be allowed to be deprived more as they require more care - answer was no, same rights as others

This shows strength of ECHR standing up for the vulnerable