3B.3.1 Article 5

Question 1

Article 5

Answer 1

The right to liberty and security.

Question 2

What must be proved for a breach of Article 5 claim to be successful?

Answer 2

A deprivation of liberty

Question 3

What is a deprivation of liberty?

Answer 3

• A deprivation of liberty is not defined in Article 5.

Case: Engel v The Netherlands, Guzzardi v Italy, Cheshire West

Question 4

Lady Hale quote about deprivation of liberty

Answer 4

“A gilded cage is still a cage”.

Question 5

Guzzardi v Italy (1981)

Answer 5

The ECtHR explained that a deprivation of liberty was a question of the ‘degree and intensity’ of the restrictions placed on the individual.

Question 6

Cheshire West and Chester Council v P (2014)

Answer 6

It was held a deprivation of liberty is where the individual is under continuous supervision and control and not free to leave.

Question 7

Engel v The Netherlands (1976)

Answer 7

The ECtHR said that liberty relates to physical liberty of the person – it is not concerned with the broader idea of liberty.

Question 8

Article 5(1)

Answer 8

This Article guarantees the liberty and security of the person, with the aim of protecting an individual against arbitrary arrest and detention.

This article requires that a deprivation of liberty must follow a prescribed procedure and it must be lawful.

Question 9

Article 5(1)(a)-(f) – Exceptions to the Article 5 right

Answer 9

a) Allows for the detention after conviction in a competent court.
- E.g. any court within UK jurisdiction.

b) Allows for the lawful arrest or detention of individuals who breach court orders or fail to fulfil an obligation prescribed by law.
- For example, for non-payment of tax, contempt of court and breach of a bail condition.

c) Allows for the arrest or detention of a person suspected of having committed an offence.

d) Allows for the detention of a minor (child) for educational supervision or bringing before legal authority such as a court.

e) Prevention of:
a. Spreading infectious disease
b. Unsound mind
c. Alcoholics
d. Vagrants

f) Allows for the lawful arrest or detention to stop a person unlawfully entering the country, or a person subject to deportation or extradition.

Question 10

Article 5(2): Prompt reasons given for arrest/detention

Answer 10

The Police and Criminal Evidence Act 1984 (PACE) states:
Everyone arrested shall be informed, promptly and in their own language, the reasons for the arrest and charge.

• In the case of Fox, Campbell and Hartley v UK (1990): The court found that a 7 hour delay between time of arrest and time informed of reasons was acceptable.

Question 11

Article 5(3): Brough promptly before a judicial officer

Answer 11

Everyone arrested and detailed brought to a judge/authorised officer promptly, entitled to trial in reasonable time, or release pending trial. Release may be conditional.

1. Promptly: In Brogan v UK (1988), a period of four days and six hours between the arrest and being brought before a judge was too long.
2. Independent judicial officer: The officer must not be involved in the investigation.
3. Reasonable time and bail: There should be a presumption of bail which gets stronger as the detention continues. This is set out in the Bail Act 1976. If denied, a court should give reasons why it is refused.

The purpose of the third provision is to ensure that no-one spends too long in detention before trial. There is a link here with Article 6 – the right to a fair trial. Time starts when the accused is first remanded into custody and ends when the court gives judgement.

What is a reasonable time depends on the circumstances of each case, including the seriousness of the charge.

Question 12

Article 5(4): Lawful arrest/detention

Answer 12

Everyone deprived of liberty by arrest or detention is be entitled to take proceedings on its lawfulness of their detention, speedily decided by a court, and their release ordered if the detention is not lawful.
Where a person is in continued detention, it must be periodically reviewed (Stafford v UK).

Question 13

Article 5(4) - Access to a court

Answer 13

Detained people must be able to challenge their detention in court. There is a positive duty on states to make this possible. Hearings where liberty is involved, must not be delayed.

Question 14

Article 5(4) - Lawfulness of detention

Answer 14

Lawfulness can be considered under ECHR rights and domestic law – by a court or relevant tribunal.

The court or tribunal must be impartial and independent – this links to the separation of powers theory.

Question 15

Article 5(4) - Determinate and indeterminate sentences

Answer 15

A determinate sentence is a period fixed by the sentencing court. One a sentence has been passed by a court, and any appeal process ahs finished, there is no right to have the lawfulness of the sentence reviewed by another court.

Indeterminate sentences are those where the offender is sentenced to a minimum term (the tariff) but will be released only when a body such as the Parole Board is satisfied that the offender is safe to be released and the public does not need further protection. Also covered are situations when an offender is returned to prison after early release or when licence conditions have been broken.

• In James v UK (2012), there were procedural delays in the process of deciding when a prisoner could be released. James could only be considered for release after attending rehabilitation courses, which he was unable to do as the prison authorities did not provide these courses. ECtHR held a violation of Article 5.

The key principle is that a person cannot be detained forever without a proper chance of release.

• It was held in Vintner and Others v UK (2013) that imposing a whole-life tariff on prisoners is not a violation.

Question 16

Article 5(4) - Speedy decisions

Answer 16

Where liberty is at stake, hearings should not be delayed.

In R (KB) v Metal Health Review Tribunal (2002), delays in mental health cases were also in violation of Article 5.

Question 17

Article 5(5): Compensation for victims of unlawful arrest/detention

Answer 17

This Article provides that everyone who has been the victim of unlawful arrest or detention shall have a right to compensation.

This right is mandatory – if there has been a breach, compensation must be awarded. Compensation will be awarded for actual financial loss caused by the unlawful detention.

Question 18

What is a TPIM?

Answer 18

A terrorism prevention and investigation measures (TPIMs). TPIMs are similar to control orders. They lay outside the criminal justice system and initiated by the Home Secretary.

A TPIM:
- Can include electronic tagging and an overnight residence requirement
- Allows ‘controlees’ to use the internet, but they can be restricted on who they can meet an where they can go, including foreign travel bans.
- They are limited to two years in length, but they are easily renewable if there is new evidence to do so.

Question 19

Cases for the use of control orders and TPIMs

Answer 19

Guzzardi v Italy (1981)
JJ: (2007)
E: (2007)

Question 20

JJ: (2007)

Answer 20

Controlees were subjected to an 18-hour curfew, visitors had to be authorised and limits on movement when they were allow to leave their house. Held to be a depravation of liberty.

Question 21

E: (2007)

Answer 21

A person placed on a control order was subject to a 12-hour curfew, in his own home with his family. There were no geographical restrictions when he was allowed out of his house and no restriction on who he could meet. This was not a deprivation of liberty.

Question 22

Guzzardi v Italy (1981)

Answer 22

A man suspected of being an active member of the Mafia was put under police supervision on a remote island. He had a physical space of 2.5km to move around in and was required to observe a strict curfew, report to authorities twice a day and lead an honest and law-abiding life. The ECtHR decided that these restrictions amounted to a deprivation of liberty.

Question 23

Cases for care and Article 5

Answer 23

There will normally be no deprivation of liberty if a person of sound mind is living with and cared for by his parents, friends or relatives in a family home, foster care or in sheltered accommodation.

• P&Q (2011)
• Re DE (2006)
• Hillingdon

Question 24

P&Q (2011)

Answer 24

Two sisters with severe learning disabilities had to be continually supervised by carers. They were not free to leave. Held: Those with mental incapacity had the same right to liberty as everyone else.

Question 25

Re DE (2006)

Answer 25

DE suffered a stroke, was blind, had dementia and lived in car homes but wished to live with JE. The ECtHR decided he was deprived of his liberty as he was not ‘free to leave’.

Question 26

Hillingdon

Answer 26

A young man with autism and a severe learning disability was accepted into respite care with the local authority for a few days at the request of his father (as he was ill). When the father recovered, the council refused to allow the young man back into the care of his father. ECtHR held there was a deprivation of liberty.

Question 27

Cases for Stop and Search and Article 5

Answer 27

• Gillan (2006)
• Roberts (2012)

Question 28

Gillan (2006)

Answer 28

D protested at an arms fair. Held: stop and search (s44 Terrorism Act 2000) was not a deprivation of liberty as it was brief and simply person is kept waiting.

Question 29

Roberts (2012)

Answer 29

D suspected of carrying a weapon. Held: stop and search (s60 Criminal Justice and Public Order Act 1994) was not a deprivation of liberty as there was no arrest or restrain and it was approximately 3 minutes.

Question 30

Cases for Public Order and Article 5

Answer 30

• Austin (2009)
• Moos (2011)
• Mengesha (2013)

Question 31

Austin (2009)

Answer 31

Police ‘kettled’ demonstrators for over seven hours. Held: no breach of Article 5 as the measures were taken in good faith, were proportionate and enforced for no longer than necessary.

Question 32

Moos (2011)

Answer 32

G20 protestors were ‘kettled’. Held: Kettling should only be used as a last resort when violence was imminent.

Question 33

Mengesha (2013)

Answer 33

Police required demonstrators to be filmed as a condition of leaving a ‘kettle’. Held: the police requirement was unlawful and breached Article 8.

Question 34

What is ‘Kettling’?

Answer 34

Where a group of people are held by the police in an area as a means of controlling a demonstration. It is a relatively new tactic used by the police, which has no statutory authority. It does not expressly fall into any of the permitted restrictions under Article 5(1)(a-f).