Article 5 – Right to Liberty and Security (does not fall within the exceptions of article 5 and Which is NOT a procedure prescribed by law) Flashcards
booklet 4
how many valid restrictions are there of deprivation of liberty (can blurt/ see how much you remember- come back to this if you need)
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
what is section a
(a) lawful detention after conviction by a competent court
what is section b
(b) lawful arrest or detention for non-compliance with an order made by a court
what is section c
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
what is section d
D) Detention of a minor foe educational supervision- can also include parents teaching life skills
what is section e
(e) lawful detention to prevent the spread of infectious disease, or of people of unsound mind
what is section f
(f) lawful arrest/detention to prevent unauthorised entry into a country, or to detain prior to deportation
what dies (a) lawful detention after conviction by a competent court mean
As long as arrest/detention follows a proper lawful prescribed procedure, detention can be for any period, without a breach of Article 5.
what is prescribed procedure
carried out by someone with authority (in the UK this would be a magistrate or judge in a courtroom)
what cases gave descriptions for this
Stafford v UK (2002)
Engel v Netherlands 1976
what did the case of Stafford v UK (2002) say
There must be a connection between the original offence and the continued detention
what did the case of Engel v Netherlands 1976 say
This can only be detention after conviction by a competent, impartial and independent court
(b) lawful arrest or detention for non-compliance with an order made by a court meaning
This would also apply if a person refused to pay a fine or breached bail conditions.
what is a case to back this
McVeigh, O’Neill and Evans v UK 1981
what does the case of McVeigh, O’Neill and Evans v UK 1981 state
Measures that were originally included in the court order must be necessary as a last resort and ‘specific and concrete’ – not based on vague ground
(c) lawful arrest or detention with reasonable suspicion of having committed an offence meaning
It is lawful to deprive someone of their liberty when they are on suspicion of committing an offence, but there must be reasonable facts giving rise to the suspicion.
what are 2 cases that back this
Steel v UK (1998)
Fox, Campbell and Hartley v UK (1990)
what does the case of Steel v UK (1998) state
Includes breach of the peace even though this is not technically a criminal offence
what does the case of Fox, Campbell and Hartley v UK (1990) state
Applicants arrested on suspicion of being a terrorist and detained for 72 hours
Held this suspicion was not reasonable so there was a breach of article 5
(d) detention of a minor for educational supervision meaning
Refers to under 18’s being detained in certain circumstances.
what is a case to back this
Koniarksa v UK 2000
what happened in the case of Koniarksa v UK 2000
A 17 year old girl with criminal record and psychotic diagnosis argued against her detention in care and in a secure facility
Court held there was no need to decide if she was really of unsound mind (for exception e) as her detention was covered by the exception for educational supervision
Also said “educational supervision” is not just classroom teaching – it also include parental-type supervision and life skills too
(e) lawful detention to prevent the spread of infectious disease, or of people of unsound mind meaning
People can also be detained to prevent the spread of infectious diseases, or to secure those of unsound mind, alcoholics, drug addicts or vagrants.
what are 2 cases to back this
Winterwerp v Netherlands (1979)
Ashingdone v UK (1985)
what did the case of Winterwerp v Netherlands (1979) say
Person of unsound mind must have a “true mental disorder” to be hospitalised under this section
what did the case of Ashingdone v UK (1985) say
Involuntary hospitalisation must be in an appropriate institution, e.g. a ‘therapeutic environment’
what 2 acts support this
Coronavirus Act 2020 (lock downs did deprive us of our liberty – but this was justified to prevent the spread of Covid)
Public Health (Control of Diseases) Act 1984 – s.45 (gave local health authorities the right to impose “health protection regulations”)
(f) lawful arrest/detention to prevent unauthorised entry into a country, or to detain prior to deportation meaning
This section is the reason that asylum seekers can be lawfully detained while their asylum application is considered, and those earmarked for deportation can be detained while their case is investigated.
People detained under this section are not criminals – however their detention is justified due their status as an illegal immigrant
what case can back this
Saadi v UK (2008)
what happened in the case of Saadi v UK (2008)
A doctor from Iraq seeking asylum in the UK was granted temporary admission but still spent 7 further days in a detention centre
This was held to not be a breach of article 5 as it was justified under (f)
However there was a breach for a 76 hour delay in giving him reasons for his detention
Under this section persons must also be given the opportunity to respond to a case against them
Which is NOT a procedure prescribed by law stuff now
what is prescribed by law (3 things)
police powers (stop and search, arrest, detention) under PACE
Sectioning under the mental health act
Care provisions
other provisions in article 5
which sections of article 5 are relevant (4)
Article 5(2)
Article 5(3)
Article 5(4)
Article 5(5)
what does article Article 5(2) say
everyone must be informed of the reason for their arrest in a language they understand
what does this mean
An explanation by the custody officer will be sufficient
Must be a few hours unless exceptional circumstances
s.28 PACE 1984 says ‘at the time or as soon as is practicable’ unless they escaped
what case stated 7 hours was okay
Fox Campbell and Hartley v UK
what does Article 5(3) say
everyone arrested should be brought before a judge “promptly”
what are 2 cases that show that trial will be within a reasonable time or bail to be given
McKay v UK (2006)
Brogan v UK (1990)
what does McKay v UK (2006)
tell us
4 days as a minimum
how does Brogan v UK (1990) support
four days and 6 hours here held to be too long and therefore a breach of 5(3) as there were no special circumstances ti warrant this delay
what case tells us Courts should also consider the complexity of the case and D’s conduct
Chraidi v Germany (2006)
what happened in the case of Chraidi v Germany (2006)
Five and a half years delay for the trail allowed as an exceptional international investigation was taking place
what does Article 5(4) tell us
detainee has the right to challenge the legality of the detention
what are further points to mention about this
Anyone deprived of their liberty by arrest/detention is entitled to have lawfulness of his detention quickly decided by court, or other relevant tribunal
E.g. Mental Health Review Tribunal
People of unsound mind should have their detention reviewed regularly
If any detention is unlawful, person will be released
Legality of detention is reviewed using judicial review procedure
Judicial review procedure ensures detainee knows reasons for detention & has opportunity to put his case before court/tribunal, but oral hearing may not be needed
Any detention review should be heard speedily
what case backs this
R v Sec for Home Dept exp Noorkoiv (2002)
what happened in this case
Parole Board hearing 3 months after tariff expired = breach of A.5(4)
what should the court/tribunal be
impartial and independent
who decides whether prisoners should be released
Parole Board decides whether prisoners should be released once they’ve served minimum term.
But appointments to Parole Board are made by Home Secretary, so this might not be sufficiently independent
what is a determinate sentence
This is a sentence set for awhat fixed period of time. No right to have legality of detention reviewed once sentence given & appeals process exhausted
what is an intermediate sentence
This is where D is sentenced to a minimum term (tariff), after which he will only be released if Parole Board are happy public will be well protected & D will be safe.
what case demonstrated an issue with intermediate sentences
james v uk
what case confirmed that life orders are allowed
Vintner v UK 2013
what does Article 5(5) say
right to compensation for unlawful arrest and detention
what does this mean
Mandatory right to compensation for anyone unlawfully arrested or detained under a.5(1) and (4)
If there has been a breach, compensation must be awarded
No compensation can usually be claimed for feelings of disappointment/frustration- only actual financial loss caused by unlawful detention can be recovered
