article 5- right to liberty and security Flashcards
what is under art 5 (1)?
everyone has the right to liberty and security. it aims to provide protection for individuals who have been unlawfully deprived of their liberty.
what are the three aims of art 5?
1- derivation of liberty
2- lawful exceptions
3- exceptional situations
what is the meaning of liberty?
physical liberty of a person. no one should be deprived of liberty in an arbitrary fashion, not border ideas of liberty such as personal autonomy.
what it meant by deprivation of liberty?
this is a question of the degree and intensity of the restrictions in place. not the nature or substance off the restrictions.
case- Gluzzardi- suspected mafia member, held on small island, had a curfew and had to report to officers. this amounted to a deprivation.
what is the criteria for finding deprivation of liberty?
It is not always obvious in appearance.
case- Cheshire west v p- p was placed in body suit to stop him from consuming his incontinece pads. deprivation is the same for everyone despite having disability.
what did Lady hale establish?
she established the acid test in the case of Cheshire west- you are unlawfully deprived of your liberty if you are under continuous supervision and control not free to leave.
what are other relevant factors for deprivation of liberty?
- consists of severe restrictions on ordinary life.
- if done in good faith, proportionate and for no longer than necessary there are no restrictions.
- no need for a physical lack/barrier for it to amount to a deprivation.
what are lawful expectations s5(1)(a)-(f)
under art 5 (1) everyone has the right to liberty and security. no one shall be deprived of this right unless…
art 5 (1)(a)- found guilty by a competent/ impartial court.
case- Stafford v uk
what is art 5 (1)(b)
arrested or detained for not following court orders. for example tax evasion or breach of bail.
what is art 5(1)(c)
arrested or detained if suspected of committing/ to prevent crimes.
must be informed promptly of the reason for arrest under PACE.
case- fox Campbell and Hartley v uk- arrested and detained under terrorism powers.
what is art 5(1)(d)
detaining minors for education/ court. secure accommodation if for the purposes of educational supervision. 2 years is not considered a breach.
what is art 5(1)(e)
this is detention for health, prevent spreading of disease/ unsound mind.
for example- public health act 1984
what is under art 5 (1)(f)
this is the detention to prevent entering country illegally to deport- asylum seekers.
case- Saadi v uk- held in detention centre for 7 days. no violation. this was necessary not arbitrary.
what does art 5(2) cover?
this is mostly covered by PACE 1984 and covers those suspected of committing a criminal offence. everyone who is arrested shall be- informed promptly, in a language they understand of the restrictions for the arrest and charge against them. police and criminal evidence act 1984.
what is art 5(3)?
this is only relevant for art 5(1)(c) for arrest and detention for criminal offences. a person suspected of a criminal offence must be brought promptly before a judge:
brogan v uk- arest was too long before they were seen by a judge
- independent judicial officer, not involved in investigation
- tried in a reasonable time, no one should spend too long in detention before trial, subject to bail act 1976.
what is art 5(4)
this creates a positive duty on states to enable anyone deprived of their liberty to challenge the lawfullness of their detention in court and applies to all cases.
1) access to court- this is a positive right to access court to challenge lawfulness or detention.
2) lawfulness of detention- the court tribunal must be independent
-mental health, unsound minds ca have detention reviewed regularly.
criminal- home secretary set tariff if convicted murderer not a judge. this can be unlawful and must be a judge, infringed on separation of powers.
1) access to court- this is a positive right to access court to challenge lawfulness or detention.
2) lawfulness of detention- the court tribunal must be independent
-mental health, unsound minds ca have detention reviewed regularly.
criminal- home secretary set tariff if convicted murderer not a judge. this can be unlawful and must be a judge, infringed on separation of powers.
3) a determinate sentence is a fixed sentence, passed and appealed, exhausted and can not be challenged. max of 2 years
4) indeterminate sentences- minimum term sentences and if offender returned to prison for breach of license.
James v uk- procedural delay in release due to attending rehabilitation that prison didn’t provide- breach.
what is a quick decision
this is where liberty is at stake and should not be delayed- poorly hearing 3 months after tariff expired- this is a breach.
remedy is compensation.
what is Art 5 (5)?
this article says that everyone who has been unlawfully arrested or detained has the right to compensation.
what are exceptional situations?
prevention of terrorism a and others v uk- a foreign terrorist suspects held in prison without charge or trial. sc held violation of art 5
control orders- imposed almost unlimited range of restrictions of any person suspected of involvement in terrorsim if they couldn’t be charged or retired to country of origin.
case - ss for HD v JJ- 18 hours curfew/visitors had to be authorised/ severe limits on movement- breach.
what is the terrorism prevention and investigation measures act?
these measures are still outside the criminal justice system and do not fit easily into thew permitted restrictions set out in art 5(1)(a)-(f). this can amount to deprivation of liberty, the courts will decide if they are justified.
includes: electronic tagging/ overnight curfews
-foreign travel bans
-restrictions on who they can meet and where they can go
-controls on access to internet
safeguards require- court authorisation requires/ limited to 2 years/ right to appeal.
what are public order and crowd control (kettling)?
kettling is a tactic used by police to contain crowds during demonstrations in order to prevent a breach of peace. it has no statutory authority and does not fit easily into the permitted restrictions set out in art 5a-f.
case- Austin, demonstrator detained in cordon for 7 hours and not free to leave.
- McClure v moos- G20 demonstrators and climate change protestors subject to kettling.
