Article 5 - right to liberty and security

Question 1

What sort of right it article 5?

Answer 1

A limited right - it can be restricted in certain situations.

Question 2

What does article 5 say?

Answer 2

Nobody shall be deprived of their liberty.

Question 3

3 requirements for a breach in article 5

Answer 3

1. A deprivation of liberty
   2.Which does not fall within the exceptions.
   3.And does not come under a lawful procedure.

Question 4

1. Definition of deprivation of liberty:

Answer 4

Taking away someone’s freedom to do the things they want to do and live where they want to.
Engel v Netherlands: “individual liberty in the classic sense”
Cheshire v West: is the individual ‘under continuous supervision and control and not free to leave’
Guzzardi v Italy - there is a distinction between a deprivation and a restriction and this is based on the degree of intensity of the restriction based on the type, duration and effects.
Lady Hale: Not based upon comfort - ‘A gilded cage is still a cage’

Question 5

Concept of deprivation of liberty

Answer 5

If someone is going to be kept under continuous supervision and control it must be in an authorised way.
HM v Switzerland 2004 - Elderly lady taken to care home against her will.Deprivation of liberty allowed as it was under an exception due to her poor living conditions.

Question 6

Deprivation of Liberty - Indefinite detention is not allowed

Answer 6

A and Others v UK 2009 - Cannot be locked up indefinitely without charge

James v UK - We cannot be detained forever without a proper chance of release.

Question 7

Deprivation of liberty - Other exceptional situations

Answer 7

Kettling - Crowd control method used during big events to stop violence. People in a kettle may not have access to food, water or toilets for hours on end.

Austin v UK 2012 - 4 people held in a kettle after protests but they were just on their lunch break. Kettling not a deprivation of liberty here due to exceptional circumstances.

Moos v Met Police 2011 - kettling should only be used as a last resort.

Question 8

Deprivation of liberty - Use of control orders and TPIM’s.

Answer 8

Control orders allows home secretary to control actions of a person suspected of terrorism.

TPIM’s (Terrorism Protection Investigation Orders) are used against people suspected of terrorism but who cant be charged, prosecuted or deported.

Question 9

Deprivation of Liberty - Care situtions

Answer 9

No deprivation of liberty if care is given by family, relatives or legal guardians in the family home. However if in a care facility there can be a deprivation of liberty - Cheshire Council v P 2014.

Deprivation of liberty - P and Q v Surrey Council 2011

Question 10

2. Does not fall within the exceptions of Article 5(1)

a. lawful detention after conviction by a competent court

Answer 10

A long as arrest or detention follows the correct or prescribed lawful procedure then detention can be for any period without a breach of article 5.
Stafford v UK- There must be a connection between the original offence and the continued detention.

Question 11

2. Does not fall within the exceptions of article 5(1)

b. Lawful arrest or detention for non-compliance with an order made by a court

Answer 11

This would also apply if a person refused to pay a fine or breached bail conditions.

McVeigh, O’Neill and Evans v UK 1981 - Measures must be necessary as a last resort and specific and concrete not based on vague grounds.

Question 12

2. Does not fall within the exceptions of Article 5(1)

c. Lawful arrest or detention with reasonable suspicion of having committed an offence.

Answer 12

it is unlawful to deprive someone of their liberty when they are on suspicion of committing an offence.
There must be reasonable facts giving rise to the suspicion.
Steel v UK - Includes breach of the peace even though this is not technically a criminal offence.

Question 13

2. Does not fall within the exceptions of Article 5(1)

d. detention of a minor for educational supervision.

Answer 13

Refers to under 18’s being detained in certain circumstances.
Koniarska v UK 2000 - detention was covered under the exception of educational supervision.

Question 14

2. Does not fall within the exceptions of Article 5(1)

e. lawful detention to prevent he spread of infectious diseases or of people of unsound mind.

Answer 14

People can be detained to prevent disease spread of keep the and the public secure.
Witerwerp v Netherlands -People must have a ‘true mental disorder’ to be hospitalised.
Ashingdone v UK - must be a therapeutic environment

Question 15

2. Does not fall within the exceptions of Article 5(1)

f. lawful arrest/detention to prevent unauthorised entry into a country, or to detain prior to deportation

Answer 15

This section is why asylum seekers can be lawfully detained while their asylum application is considered.
Saadi v UK 2008

Question 16

3.Which is not a procedure prescribed by law

Answer 16

This might include:
Police powers (Stop and search, arrest, detention)

Sectioning under the mental health act

Care provisions.

Question 17

Article 5(2) - Everyone must be informed of their reason for arrest in a language they understand

Answer 17

• An explanation by the custody officer will be sufficient.
• Must be within a few hours unless exceptional circumstances.
• Fox, campbell & Hartley says a delay of 7 hours was okay.

Question 18

Article 5(3) - Everyone arrested should be brought before a judge ‘promptly’.

Answer 18

Trial will be within a reasonable time or bail to be given.
- McKay - 4 days as a maximum
- Brogan - 4 days, 6 hours too long = breach
Court should also consider the complexity of the case
- Chraidi - 5 and a half years delay due to international investigations.

Question 19

Article 5(4) - Detainee has the right to challenge the legality of the detention

Answer 19

Anyone deprived of their liberty is entitled to have their decision quickly made by court.
- People of unsound mind should have their detention reviewed regularly.
- If any detention is unlawful then the person will be released.
- Legality of detention is reviewed using judicial review procedures.
- Any detention review should be heard speedily - Noorkoiv 2002.

Question 20

Article 5(3) (continued)
Determinate and indeterminate sentences

Answer 20

Determinate - Fixed period of time. no right to have legality reviewed once sentence given and appeals process exhausted.

Indeterminate - Where defendant is sentenced to a minimum term after which he will only be released if the parole board is satisfied the public will be protected and the defendant will be safe.

Question 21

Article 5(5) - Right to compensation for unlawful arrest and detention

Answer 21

Mandatory compensation for anyone wrongfully detained or arrested unset A5. 1 &4
If there has been a breach compensation must be awarded.
No compensation can be claimed for feelings of disappointment or frustration.