Chapter 9: ECHR Article 5

Question 1

1. Introduction

Answer 1

Article 5 ECHR protects the right to liberty and security of the person. It contains limited rights from which contracting states can seek to derogate in emergency situations under article 15
ECHR. Paragraph (1) contains the basic substantive right, and paras (2) to (5) provide additional
due process rights to which a detainee is entitled. For the purpose of this workbook, we are mainly
concerned with paras (1) to (3).

Question 2

Article 5(1)

Answer 2

Provides the basic, substantive right to liberty and the circumstances in which the state can lawfully deprive persons of their liberty, such as arrest.

Question 3

Article 5(2)

Answer 3

Governs the right for a person to be informed of the reasons for their arrest

Question 4

Article 5(3)

Answer 4

Provides that a person who has been arrested and detained shall be ‘brought
promptly before a judge’.

Question 5

Article 5(4)

Answer 5

States that a person who has been deprived of their liberty by the state ‘shall be
entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’

Question 6

Article 5(5)

Answer 6

contains an enforceable right to compensation for a victim of an article 5 breach.

Question 7

2 Article 5(1): Deprivation of liberty

Answer 7

Article 5(1) states that ‘no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’. The ‘cases’ referred to are the limitations to the right contained in sub-paragraphs (a) to (f) - in
other words, the restricted circumstances in which the state can lawfully deprive a person of their liberty.

Question 8

2 Article 5(1): Deprivation of liberty

Answer 8

The ‘cases’ cover circumstances including criminal and immigration arrest and detention. In this
workbook we will focus upon article 5(1)(c) concerning arrest for a criminal offence.

In addition to the deprivation of liberty having to fall within one of the limitations in 5(1)(a) to (f), it
must also be ‘prescribed by law’ which means that there must be a sufficiently clear legal basis for the deprivation. The ECtHR has developed a particular approach to this question which is discussed below.

Question 9

2.1 ‘Deprivation of liberty’

Answer 9

It is firstly important to note that article 5 is not engaged unless a person has been deprived of their liberty.

Question 10

Engel v Netherlands (1976) 1 EHRR 647

Answer 10

The ECtHR held that article 5(1) was not concerned with
mere restrictions on liberty; it only relates to deprivations of liberty. The court specified that the
starting point for distinguishing between a deprivation and a restriction is the ‘concrete situation’ the person is in. A range of criteria must be looked at, such as the type, duration, effects and
manner of implementation of the measure in question.

Question 11

Guzzardi v Italy (1980) 3 EHRR 333

Answer 11

The principles in Engel were reiterated by the ECtHR in Guzzardi v Italy (1980) 3 EHRR 333, which added that the difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance.

The court in that case referred to detention in prison and ‘strict’ arrest as being classic forms of deprivation of liberty but noted that it can take numerous other forms. The distinction between a deprivation of liberty and a mere restriction on liberty is discussed further below in relation to ‘kettling’ and ‘control orders’.

Question 12

2.1.1 ‘Kettling’ and article 5(1)

Austin v UK [2012] 55 EHRR 14.

Answer 12

One of the most contentious issues in this area has been the use by the police of a practice known as ‘kettling’ to control large crowds, particularly demonstrations. This involves placing a cordon
around the crowd in order to confine it to a specific area, sometimes for several hours. The compatibility of this with article 5 was addressed by the ECtHR in Austin v UK [2012] 55 EHRR 14

Question 13

Proportionate and not imposed arbitrarily

Answer 13

In the earlier House of Lords judgment, the court had considered that the cordon was comparable
to other crowd control measures such as keeping opposing supporters apart at a football match in order to prevent violence. Such measures would not be considered a deprivation of liberty so long as they were proportionate and not imposed arbitrarily.

Question 14

Grand Chamber of the ECtHR

Answer 14

The majority in the Grand Chamber of the ECtHR agreed and concluded that article 5 was not to
be interpreted in such a way as to make it impracticable for the police to fulfil their duties of
maintaining order and protecting the public, and that the imposition of an absolute cordon had
been the least intrusive and most effective crowd control measure to avoid a real risk of serious
injury or damage to property.

Question 15

Grand Chamber of the ECtHR

Answer 15

Therefore, it did not amount to a deprivation of liberty under article
5(1). The majority stressed that this conclusion was based on the specific and exceptional facts of the
case and that it may have become a deprivation, had it not remained necessary throughout the
day.

Question 16

2.1.2 Control orders and article 5(1)

Answer 16

Another way that article 5(1) has become engaged in the domestic context is through antiterrorism measures called ‘control orders’. Following the government’s defeat in the ‘Belmarsh
case’ (A and Others), control orders were introduced by the Prevention of Terrorism Act 2005. They were designed to control the movements and activities of certain individuals for the purpose of providing protection against terrorist activity.

Question 17

2.1.2 Control orders and article 5(1)

Answer 17

The Home Office’s justification for these orders was that they were not sufficiently restrictive to
amount to a deprivation of liberty in the first place and therefore there was no need for the UK to
derogate from article 5, as it had previously done in 2001.

Question 18

Re JJ [2007] UKHL 45

Answer 18

The law lords upheld the decision of the Court of Appeal that certain
‘non-derogating’ control orders imposed by the Home Secretary did in fact amount to a deprivation of liberty. They therefore engaged the protection of article 5(1) and were
subsequently declared unlawful.

Question 19

Re JJ can be contrasted with two other cases: Secretary of State for the Home Department v E
[2007] UKHL 47, and AF [2007] UKHL 46

Answer 19

Their lordships said that the starting point for considering the degree of restraint was the core issue of physical confinement. The periods of confinement
were far less than for JJ and considered cumulatively with the other restrictions, it was found that the effects of the control orders did not amount to deprivations of liberty.

Question 20

2.2 Prescribed by law (PBL)

Answer 20

A deprivation of liberty will constitute a violation of article 5(1) unless two conditions are satisfied.
The first is that the deprivation must have been prescribed by law. The ECtHR has established an
important test for determining this point which features with respect to article 5 (and also the
‘qualified rights’).

Question 21

Silver v UK (1983) 5 EHRR 347

Answer 21

Under this test it must be shown that the interference with the Convention right has some basis in
national law (Silver v UK (1983) 5 EHRR 347). That basis can be in a legislative provision or in case
law. The requirement, that the state must be able to point to a specific legal rule or regime which
authorises its conduct, gives the individual protection against arbitrary interferences with rights.
Additionally, as identified in Sunday Times v UK (1979-80) 2 EHRR 245, the identified legal basis
must have certain qualities:

Question 22

Law must be adequately accessible

Answer 22

Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to
foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

Question 23

Legal basis does not have to be absolutely clear
and precise

Answer 23

Those consequences need not be foreseeable with absolute certainty: experience shows this
to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive
rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and
whose interpretation and application are questions of practice.

Question 24

Approach to PBL in Sunday Times

Answer 24

It is worth noting that the approach to PBL in Sunday Times concerned an article 10 case, but in Steel and others v UK (2000) 28 EHRR 603 the ECtHR confirmed that the Sunday Times ‘test’
would apply to other relevant articles as well (including article 5).
Subsequent cases have provided further examples of the PBL test in Sunday Times, including guidance on how it should be interpreted and applied.

Question 25

Wingrove v UK (1997) 24 EHRR 1

Answer 25

The ECtHR rejected a submission that the criminal offence of
blasphemy was so uncertain that it was inordinately difficult to foresee whether a particular publication would constitute an offence. It held that blasphemy laws cannot by their very nature
lend themselves to precise legal definition. The applicant could have reasonably foreseen with
appropriate legal advice that his film would have fallen within the scope of the offence. (This case
related to article 10.)

Question 26

Required for the consequences to be ‘foreseeable’

Answer 26

Will depend to a considerable degree on
the content of the legal provision in issue, the field it is designed to cover, and the number and status of those to whom it is addressed (Hashman and Harrup v UK (2000) 30 EHRR 241).

Question 27

Steel and Others v UK (2000) 28 EHRR 603, and Hashman and
Harrup v UK

Answer 27

Where the ECtHR had to consider whether ‘binding over orders’ which were common law penalties, were sufficiently clear in the context of each case so as to be prescribed by law.

Question 28

ECtHR declared in
Gillan and Quinton v UK

Answer 28

For domestic law to meet these requirements [in Sunday Times] it must afford a measure of
legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary
to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise

Question 29

Key case: Gillan and Quinton v UK (2010) 50 EHRR 45

Answer 29

The case involved stop and search powers used by the Metropolitan Police under s 44 of the Terrorism Act 2000. The s 44 power allowed a senior police officer to grant a stop and search authorisation for a designated area when it was considered ‘expedient’ to do so for the prevention
of acts of terrorism. The two applicants had been stopped and searched outside an arms fair at
the Excel Centre in London.

Question 30

Key case: Gillan and Quinton v UK (2010) 50 EHRR 45

Answer 30

The ECtHR held that this power was accompanied by inadequate safeguards against arbitrary interference with rights. The word ‘expedient’ in s 44 of the Act meant no more than
‘advantageous’ or ‘helpful’. The authorisation did not even have to be considered necessary for preventing acts of terrorism. Authorisations had been made for London on a rolling basis ever
since the power was first granted.

Once granted, officers could stop and search people purely on the basis of a hunch or intuition. There was no need for that officer to suspect anything about the person who was stopped, let alone to have any objective basis for that suspicion.

Question 31

Sunday Times test

Answer 31

Thousands of people had been searched under this power. Arrests had been made for other
crimes as a result but none relating to a terrorism offence. Statistics also showed that black and
Asian persons were disproportionately subject to searches under these authorisations. The law,
under which the searches had been carried out, did not therefore meet the standard required
(under article 8) in relation to the Sunday Times test.

Question 32

Key case: R (Roberts) v Metropolitan Police Commissioner [2015] UKSC 79

Answer 32

Section 60 of the Criminal Justice and Public Order Act 1994 empowered a senior police officer to make a stop and search authorisation for 24 hours where he reasonably believed that incidents involving serious violence may take place in his locality and that it was expedient to give an
authorisation to prevent their occurrence.

Question 33

Key case: R (Roberts) v Metropolitan Police Commissioner [2015] UKSC 79

Answer 33

Once an authorisation had been granted, police
officers could stop and search any pedestrian or vehicle in that area for offensive weapons or
dangerous instruments. They did not need to have any grounds for suspecting that the individual
person or vehicle was carrying weapons. This power was challenged by a youth support worker
who had been searched, after having failed to pay a bus fare.

Question 34

Supreme Court Judgement

Answer 34

Noted the benefits of random searches in detecting weapons and held that the combination of the requirements in the 1994 Act itself, the relevant provisions of the Police and
Criminal Evidence Act 1984 (PACE), and other relevant codes, including the Equality Act, ensured
that there were stronger safeguards against abuse than were present in Gillan. The powers under
s 60 of the 1994 Act were therefore not deemed incompatible with article 8

Question 35

2.3 Article 5(1)(c)

Answer 35

The other condition for a deprivation of liberty to be lawful is that it must be justified by one of the
limitations (or ‘cases’) provided for in sub-paragraphs (a) to (f) of article 5(1). Article 5(1)(c) of the ECHR is the most important of the limitations for the purposes of this workbook

Question 36

It states that a person may be deprived of their liberty where that person is being lawfully arrested and detained:

Answer 36

for the purpose of bringing him before the competent legal authority on reasonablesuspicion
of having committed an offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so
This breaks down into two limbs. The first covers arrest and detention on reasonable suspicion of
having committed an offence.

Question 37

Key case: Fox, Campbell and Hartley v UK (1990) 13 EHRR 157

Answer 37

This is the key case on the ‘reasonable suspicion’ requirement within article 5(1)(c). Under terrorist legislation applicable in Northern Ireland in the 1970s, an arrest merely required ‘suspicion’ of an offence on the part of the police rather than ‘reasonable suspicion’. The three applicants had been arrested on suspicion of being terrorists. They complained that the real
purpose of the arrest had been to try to gather information from them.

Question 38

Key case: Fox, Campbell and Hartley v UK (1990) 13 EHRR 157

Answer 38

The ECtHR held that, even under an emergency situation, the first limb of article 5(1)(c) required
there to be reasonable suspicion, meaning that there had to be evidence of ‘facts or information
which would satisfy an objective observer that the person concerned may have committed the
offence’. It was not enough, in itself, that two of the suspects had previous convictions for terrorism. No further material had been provided upon which a suspicion could be founded. Under these
circumstances the arrests had been carried out contrary to article 5(1).

Question 39

2.3.1 Second limb of 5(1)(c)

Answer 39

The second limb of article 5(1)(c) permits arrest and detention ‘when it is reasonably considered
necessary to prevent his committing an offence or fleeing after having done so’. The ECtHR declared in Ostendorf v Germany 34 BHRC 738 that the test for reasonableness is the same as that in Fox, Campbell & Hartley v UK.

Question 40

Disagreement between the ECtHR and the UK Supreme Court over scope of 2nd limb

Answer 40

There has been a disagreement between the ECtHR and the UK Supreme Court over the scope of
this second limb. In Ostendorf, the majority of the ECtHR held that the detention of a person
under the second limb of article 5(1)(c) must be for the purpose of bringing him before a competent legal authority. It did not permit the detention of a football hooligan for the duration of
a football match in order to prevent him engaging in violence during the match.

Question 41

R (Hicks) v Commissioner of Police for the Metropolis [2017] UKSC 9

Answer 41

The Supreme Court disagreed with this analysis and chose to follow the reasoning of the minority in Ostendorf instead.

Question 42

Hicks facts

Answer 42

In Hicks several people had been arrested and detained for periods of between 2.5 and 5.5 hours in order to prevent them causing a breach of the peace by disrupting the wedding of the Duke and Duchess of Cambridge.

Question 43

Proportionate Detention for Preventive Purposes

Answer 43

The Supreme Court held that the police could rely on the second limb of article 5(1)(c). This limb should be interpreted as permitting proportionate detention for preventative purposes followed by early release. The words ‘for the purpose of bringing him before the competent legal authority’ in Article 5(1)(c) should be read as being implicitly dependent on the cause for detention continuing long enough for the person to be brought before the court

Question 44

Grand Chamber of the ECtHR in S, V & A v Denmark [2019] 68 EHRR 17

Answer 44

The issue was finally resolved by the Grand Chamber of the ECtHR in S, V & A v Denmark [2019]
68 EHRR 17 in favour of the perspective taken by the Supreme Court in Hicks. The Grand Chamber departed from Ostendorf and held that, in order to ensure that it was not impracticable for the police to fulfil their duties, the second limb of article 5(1)(c) should be capable of permitting short-term detention of a person outside of criminal proceedings for the purpose of preventing a
concrete and specific offence.

Question 45

3 Article 5(2): Reasons

Article 5(2) ECHR provides that:

Answer 45

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

Question 46

Fox, Campbell and Hartley v UK

Answer 46

The case of Fox, Campbell and Hartley v UK, referred to above, also involved discussion of article
5(2). On this point, the court held that simply informing someone at the time of their arrest that they
were being arrested on suspicion of being a terrorist, which was a broad allegation, did not
amount to a sufficient reason and therefore failed to satisfy this part of the article.

Question 47

Questioning in relation to specific offenses

Answer 47

However, subsequent questioning in relation to specific offences did provide enough detail for the persons questioned to understand why they had been arrested, within a reasonable timeframe.
Therefore, the police had not ultimately breached article 5(2) in this situation.

Question 48

4 Article 5(3): Length of detention

Answer 48

Article 5(3) is one of the most important due process guarantees. It provides the right for a person arrested and detained under article 5(1)(c) to be ‘brought promptly before a judge’. The purpose of this was described by the Grand Chamber of the ECtHR in McKay v UK (2007) 44 EHRR 41 as being to provide a safeguard against any ill-treatment and abuse of power by law enforcement
officers and to keep to a minimum any unjustified interference with individual liberty

Question 49

Brogan v UK (1989) 11 EHRR 117

Answer 49

In Brogan v UK (1989) 11 EHRR 117, the ECtHR took a restrictive approach to the requirement of promptness. The court noted that the French text of article 5(3) used the word ‘aussitôt’ which
means ‘immediately’, drawing the conclusion that there could only be a limited degree of flexibility in interpreting the word ‘promptly’.

Question 50

Period of 4-6 hours

Answer 50

It accepted that the investigation of terrorist offences presents national authorities with special
problems which can justify prolonging the detention period before an individual is brought before a judge. Nevertheless, it held that detention after arrest of a terrorism suspect, for a period of four days and six hours without judicial authorisation, was too long. Permitting detention for such a period would seriously weaken the procedural guarantee against arbitrary interferences with the
right to liberty embodied in the article.

Question 51

Grand Chamber (in McKay v UK)

Answer 51

Treated Brogan as establishing a maximum period of four days for such detention. However, the ECtHR has emphasised in subsequent cases that shorter periods of detention without judicial authorisation can still be incompatible with article 5(3).

Question 52

Ipek v Turkey (2009) App Nos 17019/02 & 30070/02

Answer 52

Which involved the detention of three 16-year-old boys for a period of three days and nine hours before they were brought before a court. Turkey sought to justify this delay by arguing that the suspects
had been arrested for terrorism offences as part of a complex case.

Question 53

ECtHR held that the detention was not sufficiently prompt

Answer 53

It emphasised that the
boys were minors at the time of the arrest. Other safeguards against arbitrary conduct by the State such as access to a lawyer were absent. Moreover, the police had failed to take any
investigative measures during the detention other than to question the boys on the second day.
As such, there were no special difficulties or exceptional circumstances which would have
prevented the authorities from bringing the applicants before a judge much sooner.

Question 54

McKay v UK

Answer 54

A much shorter period of detention was held to be compatible with article 5(3) in McKay v UK. McKay was arrested on suspicion of robbery of a petrol station and detained for 36 hours before being brought before a magistrates’ court. The ECtHR held that, as the magistrate had the
competence to examine the lawfulness of the arrest and detention, this provided satisfactory guarantees against abuse of power by the authorities and ensured compliance with article 5(3).

Question 55

Article 5(1)(c)

Answer 55

These latter cases all involved the arrest of persons on suspicion of having committed an offence. It was noted above that article 5(1)(c) can also permit the short-term detention of a person outside criminal proceedings for the purpose of preventing a concrete and specific offence.

In S, V & A v Denmark, the Grand Chamber of the ECtHR emphasised that, where a person is
subject to this form of preventative detention, the ‘promptness’ requirement in article 5(3) should
be a matter of hours rather than days.

Question 56

5 Article 5(4): Lawfulness of on-going detention

Answer 56

Article 5(4) states that a person who has been deprived of his liberty by being arrested or
detained: shall be entitled to take proceedings by which the lawfulness of his detention shall be decided
speedily by a court and his release ordered if the detention is not lawful.

Question 57

Provide a right of review of the lawfulness

Answer 57

Of the person’s ongoing detention not only by a court of law but also by other bodies of a judicial character. For example, in Hirst v UK (2001) ECHR 477, the ECtHR held that delays of 21 months and 2 years between reviews by the
Parole Board of the applicant’s continued detention amounted to a breach of article 5(4)

Question 58

Decisions concerning detention to be taken speedily

Answer 58

It reasoned that the requirement for decisions concerning detention to be taken speedily implied
that, where automatic periodic review is required by national law, those decisions must follow at
regular intervals. While the maximum period between reviews was to be determined in the light of
individual circumstances, intervals of more than one year are generally not treated as being reasonable. The periods which had elapsed between reviews in this case were not justified by
considerations of rehabilitation and monitoring

Question 59

6 Article 5(5): Compensation

Answer 59

Finally, a person who is the victim of an article 5 breach by a state is entitled under article 5(5) to claim an enforceable right to compensation. However, it is s 8 HRA which provides for a remedy in UK domestic courts. Consequently, the right in article 5(5) would only come into play if an applicant ultimately needed
to take their case to the ECtHR in Strasbourg.

Question 60

7 Summary

Answer 60

• Article 5(1) provides the basic, substantive right to liberty and sets out the circumstances in
  which the state can lawfully deprive persons of their liberty, such as arrest.
• For article 5(1) to be engaged there must be a ‘deprivation’ and not a ‘mere restriction’ of
  liberty (Engel; Guzzardi)
• There are two requirements the state (police) must show to justify the deprivation of liberty:
  ◦ One of the limitations in article 5(1) must apply. We have considered the key limitation in
  5(1)(c) (Fox, Campbell and Hartley; Hicks).
  ◦ The provision the state is relying upon must be ‘prescribed by law’ (Sunday Times; Gillan and Quinton)

Question 61

Articles 5(2) to 5(5)

Answer 61

Provide the due process guarantees to which a detained person is entitled.

Question 62

Article 5(3)

Answer 62

Provides the right, once arrested and detained, to be brought promptly before a judge (McKay; Brogan).