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.
(5)(5) - Breach
If this right is found to be breached, D has an enforceable right to compensation
What makes up confinement?
-Person detained for a period of time
-Person being detained has not consented to the detention
-The reason for detention is set by the state
RESTRICTIONS: Control Orders and Kettling
- Tagging’s, curfews, limited movement/internet access
- Kettling IS a deprivation of liberty but doesn’t neatly fit into a specific restriction: as long as police deemed it necessary to kettle, courts will be reluctant to side against police
Austin v Commissioner of Police of the Metropolis:
‘A person can be deprived of his liberty even if his departure is not prevented by a…physical barrier and even though he might be allowed extensive social and other contact with the outside world’
- Also situation where deprivation of liberty takes place outside detention centres
Control Orders & Terrorism Prevention and Investigation Measures
(TPIM)
In 2012, TPIMs replaced control orders but still allow a Home Secretary, outside the criminal justice system, to restrict liberty by:
- Electronic tagging and curfews
- Restrict geographic movement
- Limit internet usage
TPIMs are limited to 2 years but, provided sufficient evidence, a new one can be instituted against a suspect immediately upon expiry of the original
Control order case: Guzzardi v Italy, SOS Home Dpt. v JJ, SOS Home dpt. v E
The ECtHR determined this amounted to a deprivation of liberty
under article 5.
E: Doesn’t amount to deprivation of liberty
Care & Liberty
- Generally, no deprivation of liberty where a person of sound mind is living with and being cared for by parents, friends, or relatives in a family home, foster home or in sheltered accommodation.
- Equally, parental restrictions usually will not contravene article 5.
Cheshire West & Cheshire council v P, P & Q v Surrey Council County
Supreme court found it to be contravention of A.5
JE v DE
The ECtHR determined that this amounted to a breach of article 5 as he was not ‘free to leave’ – There was no requirement of a physical barrier to indicate deprivation of liberty.
A Local Authority v MD and others
The court found that although there were restrictions on her movement and she was not free to leave, this was no different than any other child of the same age if she were still living at home.
