Article 5: Right to Liberty

Question 1

What is the definition of deprivation according to Guzzardi v. Italy?

Answer 1

More than a restriction. The type, duration, effects and manner of implementation must be considered by the court.

Question 2

Which case permitted the use of ‘kettling’?

Answer 2

Austin and ors v. UK

Question 3

What case ruled that ‘kettling’, when a photograph and name was required, was a violation?

Answer 3

Mengesha v. Gloucestershire Police.

Question 4

What are the 5 possible requirements for detention of a mentally unsound individual outlined in Winterwerp v. Netherlands?

Answer 4

• Patient has a medically recognised condition
• Disorder is sufficient to justify the detention
• Detention must only be for the duration the disorder is present.
• Must be at an appropriate institution
• Must be periodically reviewed.

Question 5

What was the ruling in R (Roberts) v. Commissioner of Police for the Metropolis?

Answer 5

Being kept waiting during stop and search did not amount to a deprivation.

Question 6

Give an example of when failure of the police to follow procedures led to a conviction being quashed.

Answer 6

Osman v. DPP - police did not give their names and station.

Question 7

How long can suspects be held in custody?

Answer 7

24 hours - summary offence
36 hours - indictable
96 hours - with permission of a Magistrate

Question 8

What does s.58 PACE state?

Answer 8

The suspect has the right to a duty solicitor.

Question 9

What does s.56 PACE state?

Answer 9

The suspect has the right to have someone informed of their detention.

Question 10

What is the general rule of bail?

Answer 10

Everyone has the right to bail (s.4 bail Act 1976) though so long as they haven’t committed a serious offence such as murder or rape.

Question 11

What does Art. 5(5) state?

Answer 11

Those victim to a detention in contravention of this Article have enforceable rights to compensation.

Question 12

Discuss two benefits of Article 5.

Answer 12

• Powers of the police are havily regulated and should be used fairly - e.g. requirement to make a report of the search to ensure the individual is able to challenge their detention - however powers under s.60 have been challenged as they may be exploited in trivial cirumstances - where s.1 PACE should have been used
• ECtHR is flexible regarding terrorist suspects as it allowed the government to circumvent the illegality of detaining suspects without convictions using control orders - in JJ - 18 hour curfew was unlawful - E - 12 hour lawful - ECtHR uses a wide margin of appreciation - respects the gov’s role regarding national security.

Question 13

Discuss two disadvantages of Article 5.

Answer 13

Disadvantages:
- ‘Kettling’ is a divisive practice that has been given the imprimatur by both the HoL and ECtHR in Austin and ors v. UK - police are unjustly favoured in these cases as the exceptions under 5(1) a-f amply facilitate the police to make excuses - however, rightly so, in Mengesha - a violation for the police to require a name and photograph

• Indeterminate sentences are controversial as they delegate the role of determining the sentence to an unaccountable body - though Parole Board consists of lawyers, psychiatrists and psychologists - advantage as they are arguably in a better position to define a sentence than a judge - the use of a parole board was lauded by the ECtHR in Stafford v. UK.