Human Rights - Article 5

Question 1

what does article 5(1) give the right to?

Answer 1

the right to liberty and security

Question 2

deprivation of liberty depends on:

Answer 2

the circumstances such as intensity and type of measure imposed. there does not need to be a physical lock/barrier

Question 3

test for deprivation:

Answer 3

‘you must be under continuous supervision and control and not free to leave’

Question 4

what case examples can be used for ‘test for deprivation’?

Answer 4

Cheshire West - man with learning difficulties placed in care in adult baby grows to stop him eating soiled nappies. breach as he has no say in his own care.

Guzzardi - D suspected to be member of mafia. sent to island with limits on curfew, socialising and alcohol. not mafia so breach.

Question 5

under 5(1) no one shall be deprived of liberty unless it is prescribed under one of the followings

Answer 5

a - guilty in court
b - not followed a court order
c - suspicion of a crime
d - child-court or education
e - disease, addiction, mental health
f - deportation, entry, extradite

Question 6

5(2) covers:

Answer 6

the procedures of an arrest.
‘everyone who is arrested shall be informed promptly in a language they understand of the reasons and charges against them’

Question 7

5(3) covers:

Answer 7

those arrested or detained.
the right to be brought promptly before a judge, the right to be released on bail and the right to be tried within reasonable time.

Question 8

5(4) covers:

Answer 8

everyone who is deprived of their liberty when detained should be allowed court access quickly to decide on the lawfulness.

Question 9

5(4) covers 4 areas of detention:

Answer 9

mental health/care cases - must be reviewed regularly and follow winterwerp rules
determinate sentences - fixed time
indeterminate sentences - no fixed date
no charge - cannot be detained if not charged

Question 10

5(5) says:

Answer 10

everyone who has been unlawfully arrested or detained has the right to compensation.

Question 11

restrictions on article 5:

Answer 11

kettling (common law)
care (common law)

Police And Criminal Evidence Act 1984: Stop and Search, Arrest, Detention

Terrorist Prevention and Intervention Measure Act 2011

Question 12

what is the law on kettling:

Answer 12

does not breach article 5 as long as:
- measures used in good faith and there was reasonable apprehension of a breach of peace
- implemented proportionately and necessarily
- used for a reasonable amount of time
last resort

Question 13

what case example can be used for ‘kettling’?

Answer 13

Austin v UK - kettled for 7 hours. no breach of Article 5 because it was necessary and did not go on for longer than necessary.

Question 14

law on care/mental health:

Answer 14

for mentally disordered patients, the Winterwerp conditions must be followed

Question 15

Winterwerp conditions:

Answer 15

• must be established through medical expertise that the person is of unsound mind
• condition must warrant compulsory confinement
• must be persistent
• must be in a therapeutic environment

Question 16

what case example can be used for ‘care and mental health’?

Answer 16

Cheshire West - ‘must be reviewed constantly’

Question 17

what is the law on stop and search under S1 PACE 1984?

Answer 17

police can stop and search any person or vehicle in a public place with reasonable grounds that they possess stolen goods or prohibited articles, including articles that could be used for burglary or criminal damage.

Question 18

reasonable grounds:

Answer 18

suspicious behaviour
info/intelligence

Question 19

what case example can be used for ‘reasonable grounds’?

Answer 19

Tomlinson - stopped and searched because police thought it was a druggy area.

Question 20

procedure:

Answer 20

Name - officer just give their name
Station - must give the station they work at
Reason - reason for S&S must be given
Record/Report - bodycam/written report

Question 21

limitations:

Answer 21

can only use reasonable force.
can only ask voluntary questions.
can only ask you to remove outer clothing.

Question 22

what case example can be used for ‘limitations’?

Answer 22

Rice v Connelly - D refused to answer questions and was arrested. unlawful S&S

Question 23

other powers:

Answer 23

S60 Criminal Justice and Public Order Act 1994 - gives police ability to S&S anyone in an area without reason for 24hrs

S44/S47A Terrorism Act 2000 - can S&S in a specific area without reason if there’s suspicion of terrorism

Question 24

when are you allowed to arrest someone under S24 PACE?

Answer 24

is/have/about to commit a crime

Question 25

reasonable grounds for an arrest:

Answer 25

another officer must have also made the arrest in the same circumstances. it must be necessary to arrest.

Question 26

procedure of an arrest:

Answer 26

Told you’re under arrest
Officially cautioned
Assigned a reason
Showed ID
Taken straight to the station

Question 27

limits on an arrest:

Answer 27

can only use reasonable force

Question 28

other powers and the case examples:

Answer 28

Can arrest with a warrant
Atkinson - wrong flat number on warrant so the arrest was unlawful.

Can arrest for a breach of the peace:
Howell - house party got rowdy. police made an arrest, stating if harm is done or likely to be done to a person or property, the arrest is lawful.

Question 29

what is the custody officer’s role when someone is being detained?

Answer 29

responsible for welfare
take possessions
sort access to lawyers
consistently review

Question 30

time limits on a detention:

Answer 30

generally 24hrs
can be 36hrs with permission from an SI
can be 96hrs with permission from a magistrate

Question 31

legal rights in detention:

Answer 31

S56 PACE - phone call
S58 PACE - legal representative

Question 32

what case example can be used for ‘legal rights’?

Answer 32

Samuel - D detained for armed robbery but not given a solicitor. Unlawful detention.

Question 33

procedure of an interview:

Answer 33

Cautioned
Appropriate adult if required
Tape recorded
Solicitor

Question 34

what case example can be used for ‘interview’?

Answer 34

Asphinall - D had schizophrenia and was not given an appropriate adult and confessed. could not use confession.

Question 35

searches and samples:

Answer 35

searches:
non-intimate - half and half strip search
intimate - check in holes
samples:
non-intimate - hair, nails, saliva
intimate - blood, urine, semen

Question 36

Terrorism Prevention and Investigation Measures (TPIM):

Answer 36

court will decide if justified.
can include:
used if reasonable grounds to suspect
1 year at a time can be extended to 5
monitoring such as tags/internet history
‘known to authorities’