Article 5 Key Cases Flashcards
Brogan v UK: facts
- applicant detained for 4 days and 6 hours without charge, on suspicion of terrorist activity
Brogan v UK: principle
- Article 5(3) requirement to be brought “promptly” before judge breached
- court held this was too long to be considered prompt
Fox, Campbell and Hartley v UK: facts
- three citizens arrested in Northern Ireland under Northern Ireland (Emergency Provisions) Act 1978
- told they were suspected of terrorist activity, but not given details of specific allegations against them which were subject of investigation
Fox, Campbell and Hartley v UK: principle
- Arresting someone on “suspicion” (of having committed offence) means “reasonable suspicion” = objective
- For Article 5(2) it is not necessary to give full reasons for arrest when individual is first arrested, provided full reasons are given at later time
- by majority court concluded this standard had not been met yet
Margaret Murray v UK: facts
- Northern Irish woman arrested and held without strong evidence against her
- she suspected that enquiries were essentially a “fishing exercise”
Margaret Murray v UK: principle
- police do not need strong evidence to arrest someone
- evidence which raises the “reasonable suspicion” needed to arrest someone does not need to be of the same high standard that would be needed to secure a conviction
- no breach of Article 5
SoS for Home Dep v AF: facts
- material relating to detainees was withheld for national security reasons
SoS for Home Dep v AF: principle
- Article 5(4) requires that a person subject to deprivation of liberty is entitled to sufficient information to understand why he has been detained, and to allow him to challenge his detention
- this minimum level of disclosure is required, whether the material relates to national security or not
Austin v UK: facts
- four applicants had been “kettled” during large demonstration in London for periods between 5.5 to 7 hours
- claimed was a breach of rights under Article 5
Austin v UK: principle
- Kettling was not unlawful in this case as it was held to be proportionate response
- public interest could be balanced against individual rights
Guzzardi v Italy: facts
- alleged member of Italian mafia confined to small island under strict conditions and had to report to police
Guzzardi v Italy: principle
- deprivation of liberty under ECHR
- matter of “degree or intensity” of confinement that determines whether such a control order will be a breach of Article 5
Hirst v UK: facts
- delay of 21 months in reviewing the detainees application
Hirst v UK: principle
- this was deemed too long, and a breach of Article 5(4)
Johnson v UK: facts
- mental patient in prison on remand remained in detention at hostel for four years after he was no longer mentally unwell
- claimed were no appropriate post-release arrangements which could be made
Johnson v UK: principle
- in matters of mental health, state has particularly high duty to discharge
- state not obliged to immediately release him on his recovery but his continued detention was breach of Article 5
- adequate safeguards, to ensure his release would not be unreasonably delayed, were lacking
R (McClure and Moos) v Commissioner of Police of the Metropolis: facts
- police kettled small, peaceful climate camp in London
- were concerned that more aggressive demonstrators at separate site would join protesters
R (McClure and Moos) v Commissioner of Police of the Metropolis: principle
- Court of Appeal determined that kettling was permitted albeit that this was small scale, peaceful protest
R (on application of Saadi) v SoS for Home Dep: facts
- several asylum seekers brought claims after having been detained whilst trying to gain asylum in UK
R (on application of Saadi) v SoS for Home Dep: principle
- an asylum seeker can be lawfully detained whilst the authorities decide whether to grant asylum, as long as conditions in which he is held are reasonable, and it does not take an unreasonable amount of time to make decision
Re JJ: facts
- Home Sec appealed a court’s finding that 18hr a day curfew, under control order, was unlawful
Re JJ: principle
- appeal unsuccessful: court held that in practice control order resulted in almost permanent isolation
Sos for Home Dep v AP: facts
- AP confined to flat 150 miles from family under 16 hour a day curfew set by control order
Sos for Home Dep v AP: principle
- held to be breach of Article 5 because of degree of restriction imposed on subject
Sos for Home Dep v E: facts
- E subject to control order but was able to live at home and could be out of house for up to 12 hours per day
Sos for Home Dep v E: principle
- not found to be unlawful deprivation of liberty
Serdar Mohammed v MoD; Al-Waheed v MoD: facts
- various individuals claimed they were unlawfully detained in Iraq and Afghanistan by British forces
Serdar Mohammed v MoD; Al-Waheed v MoD: principle
- British forces have legal power to detain individuals in “non-international armed conflict” for periods exceeding 96 hours, if necessary for imperative reasons to security
- however, MOD has duty under Article 5(4) to provide adequate procedural safeguards to such detainees at all times, in order to prevent their detention becoming arbitrary.
- it had failed to comply with it