Human Rights - Article 5 Flashcards
what does article 5(1) give the right to?
the right to liberty and security
deprivation of liberty depends on:
the circumstances such as intensity and type of measure imposed. there does not need to be a physical lock/barrier
test for deprivation:
‘you must be under continuous supervision and control and not free to leave’
what case examples can be used for ‘test for deprivation’?
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.
under 5(1) no one shall be deprived of liberty unless it is prescribed under one of the followings
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
5(2) covers:
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’
5(3) covers:
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.
5(4) covers:
everyone who is deprived of their liberty when detained should be allowed court access quickly to decide on the lawfulness.
5(4) covers 4 areas of detention:
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
5(5) says:
everyone who has been unlawfully arrested or detained has the right to compensation.
restrictions on article 5:
kettling (common law)
care (common law)
Police And Criminal Evidence Act 1984: Stop and Search, Arrest, Detention
Terrorist Prevention and Intervention Measure Act 2011
what is the law on kettling:
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
what case example can be used for ‘kettling’?
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.
law on care/mental health:
for mentally disordered patients, the Winterwerp conditions must be followed
Winterwerp conditions:
- 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
what case example can be used for ‘care and mental health’?
Cheshire West - ‘must be reviewed constantly’
what is the law on stop and search under S1 PACE 1984?
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.
reasonable grounds:
suspicious behaviour
info/intelligence
what case example can be used for ‘reasonable grounds’?
Tomlinson - stopped and searched because police thought it was a druggy area.
procedure:
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
limitations:
can only use reasonable force.
can only ask voluntary questions.
can only ask you to remove outer clothing.
what case example can be used for ‘limitations’?
Rice v Connelly - D refused to answer questions and was arrested. unlawful S&S
other powers:
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
when are you allowed to arrest someone under S24 PACE?
is/have/about to commit a crime
reasonable grounds for an arrest:
another officer must have also made the arrest in the same circumstances. it must be necessary to arrest.
procedure of an arrest:
Told you’re under arrest
Officially cautioned
Assigned a reason
Showed ID
Taken straight to the station
limits on an arrest:
can only use reasonable force
other powers and the case examples:
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.
what is the custody officer’s role when someone is being detained?
responsible for welfare
take possessions
sort access to lawyers
consistently review
time limits on a detention:
generally 24hrs
can be 36hrs with permission from an SI
can be 96hrs with permission from a magistrate
legal rights in detention:
S56 PACE - phone call
S58 PACE - legal representative
what case example can be used for ‘legal rights’?
Samuel - D detained for armed robbery but not given a solicitor. Unlawful detention.
procedure of an interview:
Cautioned
Appropriate adult if required
Tape recorded
Solicitor
what case example can be used for ‘interview’?
Asphinall - D had schizophrenia and was not given an appropriate adult and confessed. could not use confession.
searches and samples:
searches:
non-intimate - half and half strip search
intimate - check in holes
samples:
non-intimate - hair, nails, saliva
intimate - blood, urine, semen
Terrorism Prevention and Investigation Measures (TPIM):
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’
