PAPER 3: Section B - Human Rights Law (Article 5) Flashcards
What is Article 5?
That everyone has the right to liberty and security of person. No one shall be deprived of their liberty unless
What are the six exceptions for depriving someone of their liberty? (Article 5)
a) After a court conviction
b) Not complying with a court order
c) Reasonable suspicion that someone’s committed an offence or prevent a offence being carried out or fleeing after having done an offence
d) To a minor for educational supervision or before alerting legal authority
e) Of people spreading infectious diseases or alcoholics / drug addicts / vagrants
f) To prevent someone making an unauthorised entry into the country or of a person being deported or extradited.
Define ‘deprivation of liberty’ & its relevant CASES (hint: _ _ _ _ _ _ & Ally, G _ _ _ _ _ _ _ v Italy)
Austin v Metropolitan Police Commissioner - A person can be deprived of his liberty even if his departure is not prevented by a locked door or physical barrier. He may be allowed extensive social and other contact with the outside world.
Guzzardi v Italy - A man suspected of criminal activities was put under police supervision. He was sent to an isolated island and had to report to an officer twice a day, a curfew and not allowed to go to bars and nightclubs. ECtHR decided this was too harsh and a deprivation of liberty.
What test about deprivation of liberty was brought about? Name the relevant CASE (HINT - C _ _ _ _ _ _ _ _ West Council v P)
Cheshire West Council v P - ‘Is the patient under continuous supervision and not entitled to leave?’ In this case, there was a deprivarion of liberty.
What is terrorism prevention?
These measures include -
- Electronic tagging and an overnight residence requirement.
- Allow ‘controlees’ to use the internet but they can be restricted on who they can meet and where they can go. This includes travel bans.
- Are limited to two years. Can be extended if there’s new evidence.
What is public order and crowd control aka kettling. Relevant case
Kettling is where a group of people are held by police in an area to control a demonstration.
Austin v MPC - People were allowed to leave a ‘kettle’ during a demonstration with permission.
HL held that if the measures were used in good faith, proportionate and enforced for no longer than necessary, the action won’t offend Article 5.
What are police powers during stop and search?
s1 Police and Criminal Evidence Act 1984 - A constable may search any person / vehicle for stolen or prohibited articles. They can detain a person of vehicle for the search.
Officers can only request removal of outer clothing (ie jackets, hats). Any more items must be removed out of public view in front of an officer of the same sex.
What does s60 of the Criminal Justice and Public Order Act 1994 say?
Police can search people in a defined area during a specific time period when they believe that
- Serious violence will occur or has occurred
AND / OR
- A person is carrying a dangerous object or offensive weapon.
What does Section 47a of the Terrorism Act 2000 say?
Allows a senior police officer to authorise a specific area for stop and search where they suspect an act of terrorism is about to occur.
A constable can stop and search a vehicle, driver, passenger or pedestrian.
Explain each letter of the anagram GOWISELY, which police officers must use for a legal stop and search.
G - Officer needs to have reasonable GROUNDS for the stop and search.
O - The person being stopped must be informed of the OBJECT / reason of the search.
W - If in plain clothes, the officer must produce a WARRANT card.
I - The officer should reveal their IDENTITY, and introduce themselves by name.
S - Officer should name the STATION they’re attached to.
E - Explain the person is ENTITLED to a record of the stop and search.
L - Explain which act the LEGAL right to stop and search comes from.
Y - Inform the person that ‘YOU are being detained for a search’
Explain each letter of the anagram GOWISELY, which police officers must use for a legal stop and search.
G - Officer needs to have reasonable GROUNDS for the stop and search.
O - The person being stopped must be informed of the OBJECT / reason of the search.
W - If in plain clothes, the officer must produce a WARRANT card.
I - The officer should reveal their IDENTITY, and introduce themselves by name.
S - Officer should name the STATION they’re attached to.
E - Explain the person is ENTITLED to a record of the stop and search.
L - Explain which act the LEGAL right to stop and search comes from.
Y - Inform the person that ‘YOU are being detained for a search’
What does Article 5(1)(c) say about arrest and detention? What’s the relevant CASE?
There must be some facts or information which satisfy the requirement of the police having reasonable suspicion before a person can be arrested for questioning.
Shimovolos v Russia - A person cannot go on a ‘fishing expedition’. D had their ID checked on multiple occasions, was forced to go to a police station and questioned about the purpose of his trip. ECtHR ruled that he’d be been arrested in breach of Article 5(1) as he had been taken to the police station under threat of force and hadn’t been free to leave without permission.
What does s117 PACE 1984 say about force?
Police can only use reasonable force during stop and search.
The use of force amounts to a battery as in Collins v Wilcock.
What does Article 5(2) say about reasons for arrests?
Everyone who is arrested shall be informed promptly, in a language the person understands. They should be told the reasons of their arrest and any charges against them.
This is also mentioned in s28 PACE 1984 - Arrest is not lawful unless the person arrested is informed that he is under arrest as soon as is practicable after his arrest.
What does the police say about cautioning?
Before being questioned, a person must be cautioned about their right to remain silent in line with s34 CJPOA 1994.
“You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence”
