Personal Liberty Flashcards
What is the core definition of personal liberty according to A.V. Dicey?
According to Dicey, personal liberty is “the right not to be subject to imprisonment, arrest and any other physical coercion in any manner that does not admit of legal justification”
What does the concept of “personal liberty” encompass beyond just physical freedom?
Personal liberty extends beyond mere freedom from bodily restraint. It includes:
Rights to contract, to have an occupation, to acquire knowledge, to marry, have a home, children, to worship, enjoy and have privileges recognized at law for the happiness of free men. (Adewole v Jakande)
The ability to choose political representatives and hold dissenting views.
The right to be free from unjustified intrusions on personal security.
Why is personal liberty considered a “substantive right”?
Personal liberty is a substantive right because it is **one of the most basic of all rights upon which other rights depend.
Other rights, such as freedom of movement, freedom of assembly, right to health, right to privacy, right to food, right to livelihood, and right to education, can only be fully enjoyed when personal liberty is guaranteed.
Deprivation of liberty is a means of impairing the enjoyment of other rights.
What are some common ways personal liberty is threatened or violated?
Police custody
remand detention
imprisonment after conviction house arrest
administrative detention involuntary hospitalization.
Institutional custody of children confinement to a restricted area (like an airport)
involuntary transportation.
Solitary confinement
What is required for a lawful deprivation of liberty?
Deprivation of liberty must be based on grounds established by law and in accordance with a procedure established by law.
What do the Universal Declaration of Human Rights (UDHR) say about the right to personal liberty?
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Article 3: Everyone has the right to life, liberty, and security of person.
- Article 9: No one shall be subjected to arbitrary arrest, detention, or exile.
What key provisions regarding personal liberty are included in the International Covenant on Civil and Political Rights (ICCPR)?
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Article 9(1): Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
- Article 9(2): Anyone who is arrested shall be informed, at the time of arrest, of the reasons for their arrest and any charges.
- Article 9(4): Anyone deprived of their liberty is entitled to challenge the lawfulness of their detention before a court and to be released if the detention is unlawful.
- Article 9(5): Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
- Article 10: All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
How does the African Charter on Human and Peoples’ Rights protect personal liberty?
- Article 6: Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
What does the Nigerian Constitution (Section 35) say about personal liberty?
- (1) “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law”.
Is the right to personal liberty absolute? Under what circumstances can it be limited?
No, the right to personal liberty is not absolute. It can be limited in specific circumstances prescribed by law. These include:
* Execution of a court sentence for a criminal offense.
* Failure to comply with a court order or to fulfill a legal obligation.
* Bringing a person before a court on suspicion of committing a criminal offense.
* To prevent the spread of infectious diseases.
* For reasons of public order, public safety, public morality, or public health.
* These limitations must be necessary, proportionate, and prescribed by law.
What do “necessity” and “proportionality” mean in the context of limiting personal liberty?
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Necessity: The limitation must address a pressing social need, and be the least restrictive means to achieve a legitimate aim. It must be the last resort after considering less severe measures.
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Proportionality: There must be a fair balance between the individual’s right to liberty and the public interest. The action taken should not exceed what is necessary.
- This involves a balancing act between the rights of the individual and the needs of the state or society.
- The public health benefit of the deprivation must outweigh the moral costs of depriving an individual of their liberty.
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Proportionality: There must be a fair balance between the individual’s right to liberty and the public interest. The action taken should not exceed what is necessary.
How does the “public health exception” allow for limitations on personal liberty?
The public health exception allows for limitations to prevent the spread of infectious or contagious diseases. This is reflected in:
* Section 35(1)(e) of the Nigerian Constitution.
* Article 5(1) of the European Convention on Human Rights.
What did the court state about the meaning of “personal liberty” in the Adewole v. Jakande case?
“…privileges, immunities, or rights enjoyed by prescription or by grant. It denotes not merely freedom from bodily restraint, but rights to contact, to have an occupation, to acquire knowledge, to marry, have a home, children, to worship, enjoy and have privileges recognized at law for the happiness of free men.”
What did the U.S. Supreme Court say about liberty in Meyer v. Nebraska?
Liberty extends beyond physical freedom to include personal
autonomy in life decisions.
Background: Robert T. Meyer, a teacher, was convicted under a Nebraska law for teaching a child German in a parochial school. The law, known as the Siman Act, prohibited teaching any modern language other than English to children who had not yet completed the eighth grade.
Court’s Decision: The Supreme Court ruled that the Nebraska law violated the Due Process Clause of the Fourteenth Amendment. The Court held that the law excessively interfered with the liberty of teachers and parents to choose the language of instruction for their children. The decision emphasized that the Fourteenth Amendment protects not only freedom from physical restraint but also the right to acquire useful knowledge and to teach and learn languages other than English
In simple terms, the Court decided that the state of Nebraska couldn’t restrict what languages teachers could teach to young children because it violated their constitutional rights.
According to Ingraham v. Wright, what does liberty include?
“a right to be free from and to obtain judicial relief, for unjustified intrusions on personal security”.
Background: James Ingraham, an eighth-grade student, was subjected to corporal punishment by the principal and assistant principals at Charles R. Drew Junior High School in Florida. Ingraham was struck over 20 times with a paddle, requiring medical attention.
His family, along with the family of another student, Roosevelt Andrews, filed a lawsuit claiming that the punishment violated the Eighth Amendment’s prohibition on cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process
Court’s Decision: The Supreme Court ruled that the Eighth Amendment’s prohibition on cruel and unusual punishment did not apply to corporal punishment in public schools. The Court also held that the Fourteenth Amendment’s due process clause did not require prior notice and a hearing before administering corporal punishment
In simple terms, the Court decided that schools could use corporal punishment without violating the Constitution, as long as the punishment wasn’t excessively harsh or degrading
What did the court decide about the right to personal liberty in Ken Nwafor v. EFCC?
The right to personal liberty, like all rights (including the right to life), is not absolute and can be limited as permitted by law.
What were the key issues and findings in Enhorn v. Sweden regarding the right to liberty?
Enhorn v. Sweden established key criteria for limiting liberty in public health contexts:
* Legal certainty is paramount, and public health law that affects liberty must be clearly defined and foreseeable in its application.
* Deprivation of liberty must be proportionate, necessary, and other less restrictive measures should be considered.
* The restriction imposed must be in accordance with domestic law.
* The court stressed the importance of the absence of arbitrariness, meaning that detention must be a last resort.
* The infectious disease must pose a danger to public health or safety.
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The European Court of Human Rights (ECHR) ruled that the compulsory isolation and restrictions imposed on Eie Enhorn due to his HIV status did not amount to a violation of Article 5 of the European Convention on Human Rights (right to liberty and security). The court found that the measures taken by the Swedish authorities were justified in the context of public health and were not arbitrary or disproportionate
How are the rights to personal liberty of persons with mental disabilities (PWMD) protected in international law and in the African Charter?
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International Law: The CRPD specifically prohibits the deprivation of liberty based solely on the existence of a disability. The ICCPR and the European Convention on Human Rights also provide for the right to personal liberty of PWMD, requiring that detention be based on objective medical assessments, be necessary, and be subject to periodic review.
- African Charter: The African Commission in Purohit and Moore v The Gambia initially interpreted Article 6 narrowly, not extending its protection to those institutionalized for medical reasons. However, a draft protocol seeks to change this by stating that “the existence of a disability or perceived disability shall in no case justify deprivation of liberty”.
- Draft Protocol on Disability Rights in Africa: The protocol also provides for procedural safeguards, such as access to information, bail, and periodic review. However, concerns remain about the implementation and monitoring of such measures.
What procedural safeguards are essential when depriving someone of their liberty?
- Right to be informed of the reasons for arrest/detention.
- Right to challenge the lawfulness of detention in court (habeas corpus).
- Right to a prompt judicial review of the detention.
- Access to legal representation.
- Right to be charged within a reasonable time.
- Right to be treated with humanity and dignity.
How might the UK’s Coronavirus Act (CA) potentially infringe upon the right to personal liberty?
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Lack of Time Limits: The CA does not specify clear limits to the period for which an individual may be isolated, raising concerns about legal certainty.
- Overreach of Powers: The CA extends powers to individuals who may lack public health expertise, potentially undermining the necessity and proportionality of deprivations of liberty.
- Need for Scrutiny: It’s crucial that measures taken during a pandemic be compatible with human rights and subject to review.
What are the grounds for arrest?
• Genuine suspicion that a crime has been committed.
• Police cannot detain a person on a previous charge.
• Police cannot detain a person for longer than the maximum prescribed imprisonment for the alleged offense.
What factors do courts consider when deciding whether to grant bail, as established in the Asari-Dokubo case?
• The nature of the charge.
• The strength of the evidence.
• The gravity of the punishment.
• Previous criminal record.
• Probability the accused won’t surrender.
• Likelihood of witness interference or suppression of evidence.
• Likelihood of further charges.
• Probability of guilt.
• Detention for the protection of the accused.
• Necessity to procure medical or social report.
• Note: These criteria are not exhaustive.
Observer and Guardian v UK
The case Observer and Guardian v. the United Kingdom (1991) involved the newspapers The Observer and The Guardian challenging orders that prevented them from publishing extracts of the book “Spycatcher” by Peter Wright. The book contained sensitive information about the British security services, and the UK government sought to prevent its publication to protect national security.
The European Court of Human Rights (ECHR) ruled that the orders preventing publication constituted a violation of Article 10 of the European Convention on Human Rights, which protects the right to freedom of expression. The Court emphasized that prior restraints on publication are particularly dangerous and require the most careful scrutiny, especially when it comes to the press.
In simple terms, the Court decided that the newspapers had the right to publish the information, as preventing them from doing so would violate their freedom of expression.
Austin v UK
The case of Austin and Others v. the United Kingdom (no. 39692/09) was heard by the European Court of Human Rights. It involved a group of individuals who were “kettled” (confined within a police cordon) for around seven hours during a demonstration in central London in May 2001. The applicants argued that this amounted to a deprivation of their liberty in breach of Article 5 of the European Convention on Human Rights (right to liberty and security).
The Grand Chamber of the ECHR ruled that the containment did not constitute a deprivation of liberty under Article 5. The court took into account the type, duration, effects, and manner of implementation of the measure, as well as the context and circumstances surrounding the restrictions. The court emphasized that the purpose behind the measure and the underlying public interest motive were not relevant to determining whether there was a deprivation of liberty
Williams v Majekodunmi
The case of Williams v. Majekodunmi is significant for personal liberty as it addresses the issue of unlawful detention. The court ruled that the detention of Williams was illegal, emphasizing the importance of adhering to legal procedures and protecting individual rights against arbitrary detention. This case reinforces the principle that personal liberty is a fundamental right that must be respected and upheld by the state
The case Williams v. Majekodunmi (1962) involved Chief F.R.A. Williams, who challenged a restriction order issued under the Emergency Powers (Restriction Orders) Regulations, 1962. The order restricted his movement and residence. Williams sought an interim injunction to restrain the defendant, Dr. M.A. Majekodunmi, from enforcing the restriction order pending the determination of his motion on notice.
The court had to consider whether the restriction order and the legislation under which it was issued were valid. The court ultimately ruled in favor of Williams, granting the interim injunction and restraining the enforcement of the restriction order until the motion was heard
In simple terms, the court decided that Williams should not have his movement restricted until the court had fully reviewed the legality of the restriction order.
What are some concerns regarding the Public Health Emergency Bill 2020?
• Lack of specified time limits on restrictions.
• Potentially wide powers given to security agents.
• It does not provide for a review process for when emergency measures cease to be operational.
• The bill does not specify review processes for continued isolation/detention.
Which level of government holds legislative power over public health?
Residual legislative powers over public health belong to State Governments subject to some exceptions such as the quarantine powers of the federal government. The federal government has legislative control over quarantine matters.
What is the significance of Purohit & Moore v The Gambia in regards to mental disability and personal liberty?
It was held that the African Charter’s guarantee of personal liberty did not extend to persons with mental disabilities (PWMD) institutionalised for medical reasons. It highlighted the narrow scope of Article 6 of the African Charter in protecting the personal liberty of PWMD.
How is mental disability defined in the context of the provided sources?
Includes people who have a mental health diagnosis or are perceived to have mental illnesses, and who experience stigma, discrimination, and exclusion. It can include short-term mental impairment.
What is the significance of the Convention on the Rights of Persons with Disabilities (CRPD) regarding personal liberty and mental disability?
The CRPD states that the “existence of a disability shall in no case justify a deprivation of liberty”. It prohibits the automatic detention of PWMD based solely on their disability. Any detention must be based on legal grounds that are dissociated from the disability.
How does the European Convention on Human Rights (ECHR) address the detention of persons with mental disabilities?
Article 5(1)(e) permits the lawful detention of “persons of unsound mind”, but the confinement must follow a procedure prescribed by law. Three minimum conditions must be satisfied: objective medical assessment, the mental illness must warrant compulsory confinement, and continued confinement depends on the persistence of such disorder. Periodic review of the patient’s condition is essential.
What are the key provisions of the draft protocol on disability rights in Africa?
• Every person with a disability has a right to liberty.
• States must ensure this right is enjoyed on an equal basis and that they are not unlawfully deprived of their liberty.
• The existence of a disability cannot justify deprivation of liberty.
• It requires states to provide procedural guarantees in accordance with international law.
• It emphasizes community care rather than institutionalization.
What are some potential limitations or issues with the draft protocol on disability rights?
• Difficulty in creating legislation that is universal yet non-discriminatory against those with disabilities.
• Excessive reliance on states to take positive action.
• Lack of resources and poor implementation may undermine the effectiveness of the protocol.
• It lacks a separate regional monitoring institution.
Name some cases that have established principles on necessity and proportionality.
Enhorn v. Sweden, Austin and others v. The United Kingdom, Observer and Guardian v. The United Kingdom, Cheranci v Cheranci
What are some key powers granted under the UK’s Coronavirus Act 2020 (CA)?
• Allows for the removal and detention of individuals at hospitals or other suitable establishments.
• Enables the imposition of medical examinations.
• Requires that such powers must be necessary and proportionate for the individual’s best interests, public health, or protection of other people.
How might the Coronavirus Act 2020 conflict with Article 5(1) of the ECHR?
The absence of a time limit for isolation might fail the requirement of legal certainty. The extension of powers to non-experts may undermine assessments of necessity and proportionality.
