Article 5 Key Cases

Question 1

Brogan v UK: facts

Answer 1

• applicant detained for 4 days and 6 hours without charge, on suspicion of terrorist activity

Question 2

Brogan v UK: principle

Answer 2

• Article 5(3) requirement to be brought “promptly” before judge breached
• court held this was too long to be considered prompt

Question 3

Fox, Campbell and Hartley v UK: facts

Answer 3

• 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

Question 4

Fox, Campbell and Hartley v UK: principle

Answer 4

1. Arresting someone on “suspicion” (of having committed offence) means “reasonable suspicion” = objective
2. 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

Question 5

Margaret Murray v UK: facts

Answer 5

• Northern Irish woman arrested and held without strong evidence against her
• she suspected that enquiries were essentially a “fishing exercise”

Question 6

Margaret Murray v UK: principle

Answer 6

• 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

Question 7

SoS for Home Dep v AF: facts

Answer 7

• material relating to detainees was withheld for national security reasons

Question 8

SoS for Home Dep v AF: principle

Answer 8

• 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

Question 9

Austin v UK: facts

Answer 9

• 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

Question 10

Austin v UK: principle

Answer 10

• Kettling was not unlawful in this case as it was held to be proportionate response
• public interest could be balanced against individual rights

Question 11

Guzzardi v Italy: facts

Answer 11

• alleged member of Italian mafia confined to small island under strict conditions and had to report to police

Question 12

Guzzardi v Italy: principle

Answer 12

• 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

Question 13

Hirst v UK: facts

Answer 13

• delay of 21 months in reviewing the detainees application

Question 14

Hirst v UK: principle

Answer 14

• this was deemed too long, and a breach of Article 5(4)

Question 15

Johnson v UK: facts

Answer 15

• 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

Question 16

Johnson v UK: principle

Answer 16

• 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

Question 17

R (McClure and Moos) v Commissioner of Police of the Metropolis: facts

Answer 17

• police kettled small, peaceful climate camp in London

- were concerned that more aggressive demonstrators at separate site would join protesters

Question 18

R (McClure and Moos) v Commissioner of Police of the Metropolis: principle

Answer 18

• Court of Appeal determined that kettling was permitted albeit that this was small scale, peaceful protest

Question 19

R (on application of Saadi) v SoS for Home Dep: facts

Answer 19

• several asylum seekers brought claims after having been detained whilst trying to gain asylum in UK

Question 20

R (on application of Saadi) v SoS for Home Dep: principle

Answer 20

• 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

Question 21

Re JJ: facts

Answer 21

• Home Sec appealed a court’s finding that 18hr a day curfew, under control order, was unlawful

Question 22

Re JJ: principle

Answer 22

• appeal unsuccessful: court held that in practice control order resulted in almost permanent isolation

Question 23

Sos for Home Dep v AP: facts

Answer 23

• AP confined to flat 150 miles from family under 16 hour a day curfew set by control order

Question 24

Sos for Home Dep v AP: principle

Answer 24

• held to be breach of Article 5 because of degree of restriction imposed on subject

Question 25

Sos for Home Dep v E: facts

Answer 25

• 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

Question 26

Sos for Home Dep v E: principle

Answer 26

• not found to be unlawful deprivation of liberty

Question 27

Serdar Mohammed v MoD; Al-Waheed v MoD: facts

Answer 27

• various individuals claimed they were unlawfully detained in Iraq and Afghanistan by British forces

Question 28

Serdar Mohammed v MoD; Al-Waheed v MoD: principle

Answer 28

• 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