Paper 3.2 - Article 5

Question 1

What is Article 5?

Answer 1

The right to liberty (“and security of person.”)

Question 2

Article 5(1)(a) lists one of six exceptions to the right to liberty. What is this exception?

Answer 2

The detention of anyone convicted by a competent court.
(Prisoners)

Question 3

Article 5(1)(b) lists one of six exceptions to the right to liberty. What is this exception?

Answer 3

The detention of anyone that fails to comply with any obligations given by the court.
(Criminals violating orders)

Question 4

Article 5(1)(c) lists one of six exceptions to the right to liberty. What is this exception?

Answer 4

The detention of anyone pending a trial on reasonable suspicion of a crime.
(Defendant on remand)

Question 5

Article 5(1)(d) lists one of six exceptions to the right to liberty. What is this exception?

Answer 5

The detention of a minor for educational supervision.
(School)

Question 6

Article 5(1)(e) lists one of six exceptions to the right to liberty. What is this exception?

Answer 6

A detention that prevents the spread of disease, unsound mind, drug addicts or vagrants.
(Diseases)

Question 7

Article 5(1)(f) lists one of six exceptions to the right to liberty. What is this exception?

Answer 7

The detention of people who have illegally entered the country.
(Illegal immigrants)

Question 8

Article 5(2) states what?

Answer 8

Anyone arrested/detained should be informed promptly in a language they understand for the reasoning behind their arrest and any charge against them.
(Officers must justify arrests to arrestees)

Question 9

Article 5(2) states a detainee must be promptly informed about the reason for their detention. What is the case study of this?

Answer 9

Taylor
A 10 y/o protestor was arrested for ‘violent conduct’ they committed a previous protest. ‘Violent conduct’ was deemed a sufficient description of their crimes, no breach of A5.

Question 10

Article 5(3) states what?

Answer 10

Anyone detained during a criminal investigation [A5(1)(c)] should be brought in front of a judge or released pending trial within an 182 day limit.
(Time limit for the arrest of ‘innocent’ people)

Question 11

Article 5(3) states detainees must be promptly brought in front of a judge or released. What is the case study of this?

Answer 11

Brogan
Applicants were arrested and questioned over their involvements in terrorist offences; they were released without charge 4-6 days later. ECtHR decided this was not prompt enough; A5 was breached.

Question 12

Article 5(4) states what?

Answer 12

Anyone can challenge the lawfulness of their arrest; this should be decided speedily in a court.
(Detainees allowed to challenge)

Question 13

Article 5(5) states what?

Answer 13

Anyone who is wrongfully detained is entitled to compensation.

Question 14

What is a TPIM?

Answer 14

Terrorism Prevention and Investigation Measure
- allow Home Secretary to impose any restriction on a suspected terrorist.
- restrictions can include tagging, restricted Internet, restrictions on visitors.
- up to 2 years but can be renewed.
- aren’t under a recognised exception of Article 5(1), so often breach human rights.

Question 15

Name one case study for TPIMs.

Answer 15

Guzzardi - Suspected mafioso sent to an island; A5 violation.
JJ - 18 hour house curfew; A5 violation.
E - 12 hour house curfew; no A5 violation.

Question 16

Detention of people in care is allowed under the five Winterwerp conditions. What are these?

Answer 16

• A must suffer a medically recognised condition. (A = unsound)
• This condition is established by an expert. (disorder = real)
• The condition must be sufficient to justify detention. (arrest = deserved)
• The detention must be regularly reviewed. (arrest = necessary)
• The detention should only last for the duration of the disorder. (arrest = short as possible)

Question 17

In Chesire West, Lady Hale invented the Acid test for detaining people in care. What was this and what were the case facts?

Answer 17

LH: ‘Is the person under continuous supervision and control, and not allowed to leave?’
Chesire West
A, an elderly man, had the habit of eating his own incontinence pad. His carers placed him in a full body suit with the zipper on the back to prevent him from access to his diaper. A5 was breached.
— Deprivation of liberty depends on circumstances; it is a matter of degree and intensity. —

Question 18

Although it is not exempt from Article 5, kettling is a method of riot control that police can use to protect the public. What are the legal conditions for kettling and what case defines this?

Answer 18

Kettling must be a last resort, when violence is necessary; it must be proportionate and not be enforced for longer than necessary (Austin).