Article 5 – Right to Liberty and Security (deprivation of liberty) Flashcards
booklet 4
is this a limited right
yes
in what situations can this right be restricted (4)
Arrest, detention or stop and search on suspicion of having committed an offence.
Imprisonment following conviction
Hospital orders
Crowd control situations
what is a case to back this
Austin v Commissioner of Police of the Metropolis (2009)
what does this case state
Being locked up in prison is not the only way to have the right to liberty restricted – there does not need to be a locked door
in order for there to be a breach of article (3)
Deprivation of liberty
Which does not fall within the exceptions
And does not come under a lawful procedure
how many sections are there for a deprivation of liberty
6 (a-f)
what is a deprivation of liberty
Taking away someone’s freedom to do the things they want and to live where they want.
what 3 cases define a deprivation of liberty
Engel v Netherlands 1979
Guzzardi v Italy 1981
Cheshire West v P 2014
what does Engel v Netherlands 1979 state
Liberty means ‘individual liberty in the classic sense’ meaning physical freedom
Not concerned with broader ideas with liberty like personal autonomy
what does Guzzardi v Italy 1981 state
There is a distinction between a ‘deprivation’ (which is potentially a breach) and ‘restriction’
Based upon the ‘degree and intensity’ of the restrictions, based on the type, duration and effects
what does Cheshire West v P 2014 state
The key test is whether the individual is ‘under continuous supervision and control and not free to leave’
Not based on the level of comfort in living conditions
what is the concept of deprivation
if someone if going to be kept under continuous supervision and control and is not free to leave, this needs to be authorised in a procedure prescribed by law.
what are 2 cases that back this
HL v UK 2005
HM v Switzerland 2004
what does the case of HL v UK 2005 state
Informational hospitalisation of a complaint but incapacitated adult is a deprivation of liberty
The “compliant” bit relates to the fact they didn’t fight the hospitalisation, and the “incapacitated” bit means they might not have been able to fight it as they maybe weren’t conscious – so it is basically saying if someone is hospitalised and they don’t fight it because they couldn’t then this will be a deprivation of liberty.
what was the case of HM v Switzerland 2004
Deprivation of liberty (but this was allowed under one the exceptions due to the poor living conditions and improper care in her actual home)
Elderly woman in Switzerland taken to care home against her will
is indefinite detention allowed
no
what 2 cases tell us this
a and others v uk 2009
james v uk 2012
what does the case of a and others v uk 2009 tell us
cannot be locked up indefinitely without charge
what does the case of james v uk 2012 tell us
We cannot be detained forever without the proper chance of release
what are the 3 exceptional situations
Kettling
Use of Control Orders and TPIM’s
Care Situations
what is kettling
practice used by the police as a method of crowd control usually used during protests or sporting events to stop violence
what is a case to describe this
Austin v UK
what happened in this case
Four applicants were held in a ‘kettle’ after anti-globalization protests in Oxford Circus, London, three of whom were non-protestors who were shopping or on lunch breaks
Held kettling was not a deprivation of liberty here but only due to the specific and exceptional circumstances of the case
what should future courts consider (5 points)
The type and manner of the deprivation
The context
Whether threat of violence is imminent
Should only be used when all other options exhausted (used up)
It should not be used to stifle discourage protest
what 2 cases can back this
Moos v Metropolitan Police 2011
Mengesha v Metropolitan Police 2013
what happened in Moos v Metropolitan Police 2011
Here the kettling g20 protestors was unlawful because there was no ‘imminent breach of the peace’ and therefore kettling should only have been used as a last resort
what happened in Mengesha v Metropolitan Police 2013
Police lawfully kettled around 100 protesters here but when releasing them policed videoed protestors and asked them for their name and address details. Held that this requirement to give their details before they could be released from the kettle was unlawful and was against article 5 and article 8
Use of Control Orders and TPIM’s meaning
Allows home secretary and control activities of a person suspected of involvement in terrorism
almost unlimited controls
what case did the gov respond to in order to introduce ‘control orders’
a and others
what is TPIM
Terrorism Prevention and Investigation Orders
Used against people who are suspected of being involved in terrorism, but who can’t be charged, prosecuted or deported
Places conditions on a suspect’s residence, movement & activities
2 year limited but renewable
It is issued by Home Secretary on advice of UK security services
Suspects may be tagged, restricted from using the internet or meeting certain people, or from travelling abroad
what 2 cases can be used to back this
Sec of State for Home Dept v E (2007)
Sec of State for Home Dept v JJ (2007)
what happened in the case of Sec of State for Home Dept v E (2007) and was there a violation of article 5
No violation of article 5 right to liberty where suspect had a control order restricting him to his own home for 12 hours per day but with no restrictions placed on him for the time he was allowed out of the house
what happened in the case of Sec of State for Home Dept v JJ (2007) and was there a violation of article 5
Here an 18 hour curfew, with only authorised visitors, and with restrictions on where the suspect could go whilst outside of the house was held to be a violation of article 5 right to liberty
what is a care situation
Usually no deprivation of liberty if care is provided by family, relatives or legal guardians in the family home.
what case shows a deprivation of liberty due to the care situation
Cheshire Council v P (2014)
was in care and placed in baby grow which restricted what he could do. Could leave house but only with assistance. Needed help with daily life and sometimes restrained.
Lady Hale in Supreme Court held he was ‘under continuous supervision and control and was not free to leave’, and was therefore deprived of his liberty as he was not in a position to consent to these arrangements for care.
what happened in the case of P & Q v Surrey Council (2011)
p and q were sisters w learning disabilities. Often restrained during outbursts but then restrained if wanted to leave and only allowed to leave w other staff and sedated with tranquilizers. Held to be deprivation of liberty under article 5
what happened in the case of Re DE (2006)
had stroke, dementia and was blind. Had freedom to move around care home. Unable to leave care home even when he noted he wanted to.
breach of his right to liberty (5)
what happened in the case of Evans v Alder Hey Children’s NHS Fdn (2018)
baby with a brain condition. Drs wanted to end life support but parents refused to consent and wanted to continue looking for treatment. Parents claimed hospital was detaining him against will and violating article 5
court of appeal said it was right to withdraw treatment, and the ECtHR held there was no violation of human rights
If there is found to be a Deprivation of Liberty following the rules laid down in these cases, there will be a breach of Article 5…
…UNLESS…
…it falls into one of the categories in article 5(1)…
…AND…
…it is in accordance with a procedure prescribed by law.
i dont fully know what this means but it was on one note in bold and big init
what are the 6 valid restrictions
A) Lawful detention after conviction by a competent court- guilty, sent to prison. Police and court powers.
B) Lawful arrest or detention for non-compliance with an order made by court- if you’ve had an injunction, fine or bail that you haven’t complied to.
C) Lawful arrest pr detention with reasonable suspicion of having committed an offence- police arresting as they’re suspected of being guilty of an offence
D) Detention of a minor foe educational supervision- can also include parents teaching life skills
E) Lawful detention to prevent infectious diseases, or people of unsound mind- like covid or people in psychiatric hospitals
F) Lawful arrest or detention to prevent unauthorized entry to a country or prior to deportation- not legall allowed in country
