Article 5 - Right To Liberty And Security (paper 3) Flashcards
What is article 5?
Everyone has the right to liberty and security of person
No one shall be deprived of his liberty
Article 5(1) (a) (b) (c)
A statement can be justifiably deprive someone of their liberty (arrest/detain) them if the requirements are met :
(A) after conviction by a competent court
(B) after non-compliance with a court order
(C) when a suspect is committing/about to commit an offence
What does 5(1) mean?
-Any arrest/detention must be laws and in accordance with a procedure prescribed by law
-Deprivation includes being detained for any period, against your will, by the state
-liberty is a fundamental freedom in a democratic society
-security of person - cannot have liberty removed without a just cause - includes being touched, held or restrained
-Guzzardi v Italy (1980) - court will consider the degree of intensity of the deprivation and not just the “nature and substance” to decide a case
What type of situations will article 5 cover?
Arrest, detention, imprisonment, keeping a child or adult in care, secure institution/hospital, control orders.
Conditions which apply if a person is deprived of their liberty
Art 5(2) - inform asap under arrest, reason for it in a language they understand
Art 5(3) - arrested person must be brought to trial asap after arrest and must be bailed or be released in a reasonable period.
Art 5(4) - arrested person is entitled to a swift trial to decide their innocence/guilt
Art 5(5) - if an art 5 rights are infringed the person is entitled to compensation (usually ($)
Law which enables police to lawfully restrict the liberty of citizens
PACE (police and criminal evidence act 1984)
When police have not complied with PACE they may be depriving of liberty
PACE deals with stop+search of people, vehicles, premises, arrest, detention, samples and searches.
Guzzardi v Italy
Sent to isolated Italian island with restrictions on what he could do
This was a deprivation of liberty
ECtHR will consider degree and intensity of deprivation, rather than just nature and substance.
Austin v Chief comm’ of police for metropolis (2009)
Police kettled protesters and passers-but for 7 hours
Was not a deprivation of liberty
No breach
R (moos) v met police commissioner
Kettling G20 protesters for 5 hours
Was a deprivation of rights
Only kettle if believed there will be an imminent breach of the peach and that’s not the case here.
R (Gillian) v Commissioner of police for the metropolis
Stopped and searched at arms under terrorism act
Not a deprivation of rights
There was a procedure brief, not cuffed - lasted only minutes.
R (Robert’s) v commissioner or police for the metropolis
Stopped + searched under S20 of CJPO act 1994
He had refused to pay+helfd handbag closed so police searched
Not a deprivation of rights
No handcuffs, restrained and only lasted 3 minutes - no deprivation of liberty
Evaluation- situations involving stop and search and brief periods of detention
Although it is clearly a deprivation of liberty, does not seem to engage article 5 (Gillian + Robert’s)
However, stop and search does count for some derivation of liberty - courts favour the police
Stop n search is less clear than a formal arrest in section 5
Evaluation - Kettling
Has no statutory authority
Seems to be based on fear of breach of peace which has a very broad basis
Austin and Moos confirmed that kettling can be used for up to seven hours and t is not unlawful
Evaluation - control orders
Did seem to breach art 5 and was replaced with TPIM - terrorim, prevention, and investigation measures, after the HOL ruled In 2005 that control orders (that allowed suspects to be kept at home or in prison,with restrictions but without charge) did breach article 5.
Evaluation - indeterminate sentences
Could potentially breach art 5
The ECtHR considered these - they should have regular reviews not to breach art 5.
We are one of the only countries that give whole life terms without the prospect of parole
