Article 5: The Right to Liberty and Security

Question 1

Can Article 5 be interfered with by the state?

Answer 1

No unless it is allowed under the subsections a-f of the state derogates.

Question 2

What is the positive obligation under Article5?

Answer 2

On the state to explain when a person has been detained and the procedural safeguards in place

Question 3

What is said inArticle 5(1)?

Answer 3

Everyone has the right to liberty and security. No one shall be deprived of his liberty.

Question 4

What is under subsection a?

Answer 4

The lawful detention of a person after conviction by a competent court?

Question 5

What does subsection a mean?

Answer 5

a person convicted by the courts can be detained however it can’t be arbitary

Question 6

What is under subsection b?

Answer 6

The lawful arrest or detention of a person for non-compliance with the lawful order of a court.

Question 7

What is under subsection c?

Answer 7

the lawful arrest or detention of a person on reasonable suspicion of having committed an offence or considered necessary to prevent him committing an offence.

Question 8

What are the facts in Guzzardi v Italy?

Answer 8

Guzzardi was suspected of being in the Mafia, ordered to live on a remote island under restrictions, held to be a deprivation under 5(1).

Question 9

What are the facts of Austin and ors v UK?

Answer 9

police used ‘kettling’ technique and protestors were gradually released within hours, not a deprivation are police were preventing violence and damage.

Question 10

What were the facts of Mengesha v MPC?

Answer 10

Police used ‘kettling’, however made protestors give their name and address and be video recorded before leaving, is a deprivation under 5(1).

Question 11

What were the facts in Cheshire West and Cheshire Council v P?

Answer 11

P had downs syndrome and CP, required 24-hour care. Lady hale said that living arrangements made for people who lack a mental capacity is a deprivation of article 5.

Question 12

What are the rules regarding stop and question?

Answer 12

If the police ‘stop and question’ someone they are free to refuse to answer unless they have been arrested

Question 13

What case supports this?

Answer 13

Rice v Connolly

Question 14

What are the rules regarding stop and account?

Answer 14

Police can ask someone to ‘stop and account’ for their behaviour, actions or possession of anything. All stops must be recorded, and a copy given to the person stopped.

Question 15

What are the rules regarding stop and search?

Answer 15

This police power enables officers to question a suspect and if necessary, search the person and their vehicle.

Question 16

Where are these rules contained?

Answer 16

S1 of PACE (1984)

Question 17

What does S1 of PACE say?

Answer 17

The police must have reasonable grounds for suspecting a person is in possession of stolen goods or prohibited articles.

Question 18

What happened in Osman v DPP?

Answer 18

The police did not give their names and station to the suspect, the search was therefore unlawful

Question 19

What is ‘in accordance with law’?

Answer 19

The law used must be certain and not arbitrary, a person should be able to predict or foresee when detention may occur.

Question 20

What is said under S5(2)?

Answer 20

Everyone who is arrested shall be informed promptly, in a language which he or she understands, of the reasons for his arrest and of any charge against him.

Question 21

What are the time limits for detention?

Answer 21

. Summary offence - must be charged or released after 24 hours
. Indictable offence - must be charged or released after 36 hours
. Further extension can be made up to 96 hours if authorised by a magistrate.

Question 22

What are the rights of the detainee?

Answer 22

.S56 PACE states the suspect has the right to have someone informed of their detention (exception for indictable offences)
.S58 PACE states that the suspect must be told about the duty solicitor and be able to consult them privately.
Suspect must be allowed to consult the codes of practice.

Question 23

What case supports this S58 PACE?

Answer 23

R v Samuel

Question 24

What is said under S5(3)?

Answer 24

Everyone arrested or detained in accordance with the law shall be brought promptly before a judge. Release may be conditioned by guarantees to appear for trial.

Question 25

What happened in Brogan v UK?

Answer 25

Suspected terrorists were held for four days and 6 hours from arrest to being brought before a judge. This was considered too long.

Question 26

In Mckay v UK what was the maximum days D can be held?

Answer 26

4 days

Question 27

What is said under S5(4)?

Answer 27

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court.

Question 28

what is an officers ‘review’ duty?

Answer 28

The custody officer is under a duty to release the suspect if there are no grounds to continue the detention.

Question 29

What is an officer’s ‘record’ duty?

Answer 29

The custody officer must keep a record of times and events to ensure time limits for detention have not been exceeded.

Question 30

What is said under S5(5)?

Answer 30

Everyone who has been the victim of arrest or detention shall have rights to compensation.