Article 5: The Right to Liberty and Security Flashcards
Can Article 5 be interfered with by the state?
No unless it is allowed under the subsections a-f of the state derogates.
What is the positive obligation under Article5?
On the state to explain when a person has been detained and the procedural safeguards in place
What is said inArticle 5(1)?
Everyone has the right to liberty and security. No one shall be deprived of his liberty.
What is under subsection a?
The lawful detention of a person after conviction by a competent court?
What does subsection a mean?
a person convicted by the courts can be detained however it can’t be arbitary
What is under subsection b?
The lawful arrest or detention of a person for non-compliance with the lawful order of a court.
What is under subsection c?
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.
What are the facts in Guzzardi v Italy?
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).
What are the facts of Austin and ors v UK?
police used ‘kettling’ technique and protestors were gradually released within hours, not a deprivation are police were preventing violence and damage.
What were the facts of Mengesha v MPC?
Police used ‘kettling’, however made protestors give their name and address and be video recorded before leaving, is a deprivation under 5(1).
What were the facts in Cheshire West and Cheshire Council v P?
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.
What are the rules regarding stop and question?
If the police ‘stop and question’ someone they are free to refuse to answer unless they have been arrested
What case supports this?
Rice v Connolly
What are the rules regarding stop and account?
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.
What are the rules regarding stop and search?
This police power enables officers to question a suspect and if necessary, search the person and their vehicle.
Where are these rules contained?
S1 of PACE (1984)
What does S1 of PACE say?
The police must have reasonable grounds for suspecting a person is in possession of stolen goods or prohibited articles.
What happened in Osman v DPP?
The police did not give their names and station to the suspect, the search was therefore unlawful
What is ‘in accordance with law’?
The law used must be certain and not arbitrary, a person should be able to predict or foresee when detention may occur.
What is said under S5(2)?
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.
What are the time limits for detention?
. 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.
What are the rights of the detainee?
.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.
What case supports this S58 PACE?
R v Samuel
What is said under S5(3)?
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.
