Article 5: Liberty and security

Question 1

Article 5.1 says:

Answer 1

A person may only be detained:

(a) after conviction
(b) to secure fulfilment of an obilgation prescribed by law
(c) after arrest for the purposes of bringing the person before a competent authority, on reasonable suspicion of having committed an offence, or when it is reasonably considered necessary to prevent him committed an offence or fleeing afterwards
(d) a minor for educational supervision
(e) to prevent the spread of infectious diseases, or persons of unsound mind, alcoholics/drug addicts, or vagrants
(f) to prevent unauthorised entry to a country, or for deportation or extradition

Question 2

Article 5.2 says:

Answer 2

Everyone must be informed promptly of the reasons for their arrest and any charges

Question 3

Article 5.3 says:

Answer 3

Everyone detained under 5.1(c) has the right to a trial within a reasonable time, or release pending trial

Question 4

Article 5.4 says:

Answer 4

Everyone detained has the right to challenge the lawfulness of their detention before a judge and, if found to be detained unlawfully, to be released

Question 5

Article 5.5 says:

Answer 5

Anyone unlawfully detained is entitled to compensation

Question 6

HM v Switzerland (2002)

Answer 6

A woman could be forced to enter an open nursing home - this was not a deprivation of liberty

Questions were, in my view rightly, raised by dissenting judges about (1) the idea that this wasn’t a deprivation of liberty (2) this decision being taken in the woman’s “best interests” (3) the woman being declared of “unsound mind” without a proper examination

Question 7

HL v UK (2005)

Answer 7

Breach of A5.4, through Judicial Review being the only remedy available to challenge detention for someone detained as an “informal patient” instead of under MHA 1983

The patient had not resisted detention, but had no capacity to consent to it. There were no procedural safeguards (as there would have been if he’d been sectioned under MHA 1983)

Question 8

Guzzardi v Italy (1980)

Answer 8

It can amount to a deprivation of liberty if someone is held in an open air area of 2.5 sq. km - the difference between deprivation of liberty and restriction on liberty is one of degree

Question 9

Austin v UK (2011)

Answer 9

Crowd control measures like kettling are not deprivations of liberty, so A5 is not engaged

Being held within a cordon in Oxford Circus for 7 hours was ok, but only because the police were at all times seeking to use the least restrictive measure in the circumstances and let people out where they could

Question 10

Fox, Campbell & Hartley v UK (1990)

Answer 10

Police needed to provide at least some evidence to show they had “reasonable suspicion” when arresting someone, to meet A5.1(c) - simply having an honest belief was not enough if it was not based on reasonable grounds

A delay of 4 hours in informing the person of the reason for arrest did not breach A5.2

Question 11

O’Hara v UK [2002]

Answer 11

“Reasonable suspicion” requires some facts or information that would satisfy an objective observer that the person may have committed the offence

Question 12

Saadi v United Kingdom (2008)

Answer 12

A number of elements must be present for a detention to be lawful:

(1) It must be closely connected to a purpose in A5.1(a)-(f)
(2) It must be necessary (other measures cannot be used)
(3) The length isn’t more than needed
(4) Proper records of the detention are kept
(5) The detention is lawful within domestic law