Article 5 - Evaluation Flashcards
AO1: Introduction/Rationale
People have the right not to be artbitrarily detained by the state (links to Magna Carta 1215 and Habeas Corpus)
It is a limited right - the right cannot be interfered with unless it is allowed under the right itself, eg. (a)-(f) or the state derogates
AO1: Deprivation - Article 5 (1)
Deprivation is more than a restriction. It is decied on the facts on a case-by-case basis
Guzzardi v Italy - being kept on a desert island = deprivation
Austin v UK - being ‘kettled’ by the police = no deprivation
R (Roberts) v Commissioner of Police - being kept wiating during a stop and search = no deprivation
Cheshire West v P - being kept inc are (even if it is for their own good) = deprivation (also establishes objective test for deprivation which is ‘under continuous control and not free to leave’)
AO1: Procedure prescribed by law - Article 5 (1)
There is no deprivation if the proper procedures are followed eg. Winterwerp v Netherlands for the mentally ill and PACE for police powers
AO1: Arrest - Article 5 (2)
Cannot arbitrarily arrest people that might offend (Shimovolos v Russia - their way to a protest). Arrest regulations are in s.24 PACE, s.110 SOCPA and Code G. It must meet the necessary criteria, the suspect must be told they are under arrest, the reason for the arrest and be cautioned (s.28 PACE). All offences are arrestable but the arrest must be necessary to:
- find out suspects’ name and address
- prevent the suspect disappearing
- for the safety of the suspect
- to allow a prompt and effective investigation
AO1: Brought before a judge - Article 5 (3)
Judge or magistrate - within a reasonable period of time
McKay v UK: said 4 days was the maximum. The judge should then consider bail
Bail should be granted unless there are substantial grounds not to
Conditions can be put on the bail (conditional bail)
AO1: Lawfulness of Detention - Article 5 (4)
Decided speedily by the court
Detention at the police station is closely monitored by the custody officer who keeps records and reviews the lawfulness of the detention. Suspects are usually kept up to 24hrs (summary offences) and up to 36hrs for TEW or indictable offences if authorised by the Superintendent or 96hrs by a magistrate (warrant or further detention)
s.56 right to inform someone of arrest and s.58 right to use the duty soliticor (which cannot be delayed - R v Samuel)
Detention in prison is reviewed by the parole board. In R v Noorkoiv, a 3 month delay to a parole hearing was not considered ‘speedily’
Detention of mentally ill is reviewd by a Mental Health Review Tribunal who have the power to order release
AO1: Rights to compensation - Article 5 (5)
Any violation of Article 5 gives the applicant an enforceable right to compensation
AO3: Limited Right
One part of Article 5 that makes it effective is that it is a limited right (P).
This means that it protects the public as it stops the state interfering in anyway not specified in subsections a-f making it somewhat effective (DP).
However, there are certain practices in the UK that are not specified in a-f but the ECtHR have still said they were lawful e.g. in Austin v UK police kettling was allowing and in Stafford v UK indeterminate sentences were also approved even though both of these things could have been considered arbitrary (WDP).
AO3: Deprivation
The definition of deprivation protects the rights of the public as it will be decided on a case-by-case basis (P).
This was emphasised in Guzzardi v Italy where it was held it would be up to the court to decide if there was a deprivation of liberty rather than just a restriction, but this results in a lack of guidance as to what will and won’t be deprivation, leading to uncertainty (DP).
This being said, a clearer definition was provided in Cheshire West v P and deprivation is understood to mean ‘under continuous supervision and control and not free to leave and this is the objective standard now adopted by the courts (WDP)
AO3: Procedure prescirbed by law
This part of Article 5(1) protects the public in that any deprivation of liberty will be arbitrary if the procedures have not properly been followed (P).
Winterwerp v Netherlands gives guidelines for the procedure to follow when a person is held in care and in Cheshire West v P the rules under the Mental Capacity Act had not been followed (DP).
Furthermore, if the police don’t follow the procedures in PACE and the Codes of Practice, any convictions will be unsafe e.g. in R v Samuel refusal of D’s right to see a solicitor under s.58 PACE resulted in his conviction for robbery being quashed (WDP).
AO3: Article 5 (4)
This protects the public in that the ECHR places a positive obligation on the state to ensure that everyone being detained (at the police station, in prison and in care) can challenge the detention in a court that has the power to order immediate release (P).
This means the public are still protected by the ancient right to Habeas Corpus (DP).
Furthermore, this also extends to parole hearings and Mental Health Review Tribunals to ensure no one is arbitrarily detained (WDP).
Conclusion
In conclusion, Article 5 effectively protects the rights of the public as it ensures people are not being arbitrarily detained and if individuals feel like they have been, there are avenues for them to challenge the lawfulness of the detention.
In addition, it puts procedures in place that must be followed by the state and arms of it, e.g. police powers.
However, it remains somewhat ineffective as there remains no statutory definition of what ‘deprivation’ is and is decided on a case-by-case basis creating uncertainty
