Right to liberty - article 5 Flashcards
what are the three key elements of article 5?
5.1 - the right to liberty
5.1 (a-f) - 6 exceptional circumstances
5.2 - gives rights to those deprived of liberty in accordance with 5.1 a-f
what does 5.1 say?
everyone has the right to liberty and security of person. no one shall be deprived of this liberty save in the following cases and in accordance with a procedure prescribed by law
what are the situations where some one can be deprived of their right to liberty (5.1 a-f)?
a) The lawful detention of a person after conviction by a competent court;
b) The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so
d) The detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority
e) The lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants
f) The lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition
what is a deprivation of liberty?
more than a mere restriction on movement - HM v Switzerland [2002]
Distinguishing between a deprivation of liberty and restriction of movement is context specific and depends on the circumstances surrounding the case
what is the acid test from Cheshire West and Chester Council v P [2014]?
The acid test for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave
what are not relevant in the acid test?
(a) the person’s compliance or lack of objection
(b) the relative normality of the placement
(c)the reason or purpose behind a particular placement
What are relevant factors to look at under deprivation of liberty?
-Type
-Duration
-Effects
-Manner of implementation of the measure in question
what are some forms of deprivation of liberty?
- arrest and detention
- placed in a secure mental hospital
- house arrest
- control orders
- stop and search
- coronavirus
- free to leave situations
from cases about house arrest what appears to be okay for how long someone must remain in the house?
16 hours appears ok, but 18 is too much
SSHD v E [2007] - obliged to remain in house for 12 hours - no deprivation of liberty
requirements for exception a) the lawful detention of any person after conviction by a competent court?
- court must have the jurisdiction to try the case
- able to provide the procedural protections of a fair trial
- difficulty when someone has a successful appeal
requirements for exception b) The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
the individual in question must know of the duty and had the opportunity to perform it in her own time
requirements for exception c) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so
- vital for any system of government to be able to keep law and order
- powers need to be controlled to prevent abuse of basic rights and uphold the presumption of innocence
- detention must be proportionate in circumstances
what are the three elements under exception c?
- reasonable suspicion of having committed an offence
- reasonably necessary to prevent him committing an offence
- fleeing after having done so
what are the requirements under exception d) The detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority ?
- parents may decide it is in the child’s best interest to get treatment in a hospital
- balance between choices of a child and parental rights
- children can be arrested
requirements under exception e) The lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants
- there is a need for lawfullness
