Human Rights - Article 5 Flashcards
DEFINITION
The right to liberty and security of person - no one shall be deprived of their liberty unless in accordance with a procedure prescribed by law
UNDER the European Convention on Human Rights
A(5)(1) - Liberty & Security
Not being under the direct physical or political control of another
(5)(1) - Deprivation of Liberty (cases)
- (JJ v Secretary of State for the Home Department) deprivation of liberty = combination of confinement or severe restrictions on ordinary life
- (Re DE) No requirement of physical barrier to indicate deprivation of liberty
- (Guzzardi v Italy) Must be deprived of liberty not merely restricted
A(5)(1) - Prescribed procedure
Detention carried out by a body with the authority to do so and should be justified
(1)(a) - Detention after conviction (case)
a - Detention following a conviction is permitted, but there must be a link established.
- Stafford v UK - By a competent court with no conflicts of independence
(1)(b) Arrest for noncompliance with a lawful order
Allows detention such as arrest for breaching bail
(1)(c) Arrest on suspicion/to prevent a crime + casers
- (Fox, Campbell & Hartley v UK) An honest belief is not enough
- (Shimovolos v Russia) Detention not allowed on basis of people perceived to be dangerous or likely to offend.
(1)(d) – Detention of a minor for education/to bring before a court
d - Allows detention of a minor for educational supervision or bringing
them before a court
(1)(e) – Medical grounds + Case
Allows detention for quarantine or due to mental health. This must be supported by expert opinion.
1. (HL v UK, s45 Public Health Act) To prevent the spread of infectious diseases/people of unsound mind/alcoholics/vagrants etc, allowed for 2020 lockdowns
(1)(f) – Immigration + case
Allows detention of people illegally entering a country including asylum seekers whilst applications are processed.
1. (Saadi v UK) To stop unlawful entry into a country or if someone is subject to deportation/extradition
A(5)(2) - Informed promptly, in language understands, reasons for arrest/charge + cases
- These provisions are covered in English law by the Police and Criminal Evidence Act [PACE] (1984).
i) Someone under arrest must know the reasons for the arrest, detention, and charge.
ii) These do not need to be provided in full, immediately, but must be given promptly.
1. (Christie v Leachinsky) Doesn’t have to be given in full at the exact moment of arrest but should be given promptly
2. (R v Samuel) Access to a solicitor can’t be denied after charges are given
Taylor v CC of Thames Police
Sufficient information was given of the reasons for his arrest given that his mother was present and ‘violent disorder’ was a good enough description.
A(5)(3) - Brought promptly before a judge for trial within a reasonable time with access to bail + Cases
- Bail is presumed and the argument for it gets stronger with time, court must give a reason for refusing to give bail if its denied
1. (Brogan v UK) brought before an independent judicial officer
‘Reasonable time’ depends on severity and complexity of the case but must be imminent
(5)(4) - Assess legality of detention via the courts
- Access to a court, Lawful detention & Speedy decision
- Anyone deprived of liberty by arrest/detention can bring proceedings to decide if detention if lawful
- Must be periodically reviewed when in continued detention
(5)(4) EXTRA INFO
-Can be carried out by court or relevant tribunal
-Court or tribunal needs to be impartial and independent
-Parole board determines suitability of prisoners for release after minimum term served
-Offender is entitled to know reasons for detention
-After judicial processes (i.e. appeals) complete, determinate sentences cannot be challenged in this sense
-Continued review by judiciary required for detention under indeterminate sentences such as when an offender breaches licence conditions following early release.
