7) ECHR 2, 3 and 5 Flashcards
1
Q
ECHR Art 2
A
The right to life
2
Q
ECHR Art 3
A
THe right not to be subject to torture or inhuman and degrading treatment.
3
Q
ECHR Art 5
A
Right not to be arbitarily detained
4
Q
How were articles incorportated into UK Domestic Law?
A
Human Rights Act 1998
5
Q
What is the courts duty when enforcing legislation?
A
To take into account the decisions and jurisprudence of the ECtHR
s2(1) HRA
6
Q
Giulani and Gaggio v Italy
A
The European Court of Human Rights has found that Italy failed to adequately investigate the death of a protestor by a member of the military police, or carabinieri, and this failure to investigate breached Italy’s obligations to safeguard the right to life. The Court was, however, not satisfied that the death itself involved a breach of human rights.
s2 read in conjunction with….
7
Q
McCann and Others v UK
A
- Death on the rock
- were not in violation of Article 2.
- there was a violation of Article 2 in the control and planning of the operation = managerial obligation
- The Court ruled that the authorities had failed in two further ways:
- (a) they did not stop the suspects from entering Gibraltar, and
8
Q
What are the provisions of Art 2 ECHR?
When shall deprivation of life bot be in contravention?
A
Everyone’s right to ife shall be protected by law.
* No one shall be deprived of his life intentionally….. save in the execution of a court sentence in line with the law
- Deprivation of life shall not be regarded as inflicted in contravention of the article when results from use no more than absolutely necessary
- in defence of any person from unlawful violence
- In order to effect a lawful arrest, or prevent the escape of a person lawfully detained
- In action lawfully taken for the purpose of quelling a riot or insurrection
9
Q
When shall deptivation of life not be regarded as inflicted in contravention of Art 2?
A
- Results from force that is more than absolutely necessary; and is not:
(a) in defence of any person from unlawful violence
(b) In order to effect a lawful arrest, or prevent the escape of a person lawfully detained
(c) In action lawfully taken for the purpose of quelling a riot or insurrection
10
Q
Does Art 2 allow for the death penalty?
A
- Originally yes (lawful execution)
- All signatory states have subsequently abolished this sanction
11
Q
Limits to Art 2
A
- Not permitted to derogate from Art 2 under Art 15
- Not an absolute right
- A limited right - allows the state to take life for exceptional “law enforcement purposes”
- Must show that use of force is “no more than absolutely necessary”
12
Q
Meaning of “no more than absolutely necessary”
A
Degree of force usedmust have been proportionate to achieve the legitimate aim of protecting other
13
Q
Key case providing guidance on the nature, scope and limits of state obligations under Art 2
A
McCann, Farrell and Savage v UK
14
Q
McCann, Farrell and Savage v UK
Principles
A
- “Death on the Rock” Case
- negative obligation to refrain from killing
- Investigative duty on state to fully investigate killings by state agent.
15
Q
McCann, Farrell and Savage v UK
Facts
A
- Relatives of 3 alleged IRA members shot dead in Gibraltar by SAS
- Killings had been carreid out with little warning
- No apparent effort to capture them alive
- UK Gov - believed about to detonate bomb = serious loss of life = proportionate response to perceived security risks
16
Q
McCann, Farrell and Savage v UK
Decision
A
- ECtHR found no violation of article 2, in relation to shooting themselves
- Honest belief of need - in obedience with superior orders = absolutely necessary to safeguard innocent lives.
- Violation in lack of care in control / organisation of operation
= Duty of command, control and training = MANAGERIAL OBLIGATION - Why were suspects not arrested at the border immediately after arrival in Gibralatar, if believed were intending to plant bomb.
- Should be some form of effective official investigation
17
Q
Meaning of “managerial obligation”
McCann, Farrell and Savage v UK
A
- Required state to be in a position to judge when to apply the use of deadly force
- Have mechanisms in place to avoid such force when it is not strictly required
18
Q
Which article imposes a duty to investigate situations were a state directly takes a life?
A
Article 2
* Responsibility of states themselves to investigate and remedy human rights breaches
* If proper investigation carried out, there will be no need to invoke article 2
19
Q
If the state carries out a proper investigation, will Article 2 be invoked?
A
- If proper investigation carried out, there will be no need to invoke article 2
20
Q
McCann and Investigative Duty
A
- Effective official investigation when individuals killed by result of use of force
21
Q
Investigative Duty Cases
A
- Jordan v UK
- McKerr v IK
- Kelly & Others v UK
- Dhanaghan v IK
Cases found violations of article 2 on the ground that the inquests held into security forces in Northern Ireland were flawed
22
Q
Al-Skeini v IK
Investigative duty
A
- Procedural investigotary element of Art 2 extended extra-territorially
- UK required to investigated deaths of six Iraqi civillians in 2003 in Iraq
jurisdiction applied under the HRA as UK military forces had sufficient control over the territory at the time deaths occurred
Investigative duty - extends extra-territorially
23
Q
Armani Da Silva v UK
Investigative duty
A
- Killing of Brazilian Citizen in Stockwell underground
- Decided not to prosecute individual officers
- Insufficient evidence of criminal liability
- Not because state had fully investigated all aspects of the fatal shooting.
24
Q
R(Dunne) v Independent Office for Police Conduct
Investigative duty
A
- Severe brain damage due to armed police officer
- Did not die
-
Confirmed that Art 2 rights of engaged & (art 3)
Investigatory obligation arose - Officer had used potentially lethal force in the operation
25
Investigative duty for death caused by third parties - **rather than by state agents**
* Duty to investigate
* **R(Amin) v SoS for Home Dept** = positive duty to protect lives of those in custody
26
**R(Amin) v SoS for Home Dept**
* Inmate of Feltham Young Offenders Zahid Mubarek murdered by known racist cellmate for racially motivated reasons
**Positivve duty** to protect life, **especially those under involuntary custody**
27
**R(Amin) v SoS for Home Dept**
Public Enquiry
* Home Office declined a full public enquiry - had been a prison investigation
* **No single template for such investigations**
* Irreducible core at the heart of the Art 2 duty
* **Investigation must be impartial, independent and involve full participation fo family**
= violation of Art 2 as this did not take place
28
What must investigations that relates to under Art 2?
* No single template, but
* Must be impartial
* Independent
* Involve full participation of the family
29
Positive obligation
## Footnote
Art 2
Article 2 can impose a positive obligation on the State **to protect or preserve life**
* Preventative, and operational obligations
eg Criminal Justice System that deters and punishes homicide.
30
X and Y v The Netherlands
* Lack of specific criminal sanction in Dutch law
* Allowed a man to evde conviction for sexual assault of girl with learning difficulties
**Breach of positive obligation** under art 8
* = obligation to deter
31
Operational obligation
## Footnote
Under Art 2
* Art 2 can include an **Positive Operational Obligation** on states to take preventative measures to protect individuals when their **life is at risk from others** or from **suicide**
* Liability for state authorities if **knew or ought to have known** there was a real and immediate risk to life, failed to take appropriate measures..
32
When is there an Operational Obligation incurred by state authorities?
* Liability for state authorities if **knew or ought to have known** there was a real and immediate risk to life, failed to take appropriate measures..
| **Osman v UK**
33
NHS Trust A v M;
NHS Trust B v H
## Footnote
Right to life - medical case
* Withdrawl of treatment through hydration and nutrition
* Patient in vegetatitve state
* Not a breach of Art 2
**No obligation to prolong life when prognosis is poor**
34
Pretty v UK
## Footnote
Right to life - medical case
* Assisted suicide case
* Balance between wishes not to die in "inhuman and degrading" circumstances (Art 3) and obligation to do what is reasonable to preserve life
35
Rabone v Pennine Care
## Footnote
Positive obligation
* Drs **positive duty** under art 2 to prevent "negligent" treatment leading to death of a patient.
* NHS under posititve obligations to prevent suicide when on home leave from psych ward.
* Had **assumed responsibility and control over patient**
* Failed to take reasonable steps to prevent the real and immediate risk of suicide **in breach of Art 2**
## Footnote
Positive obligation - prevent suicide
36
Maguire v His Majesty's Senior Coroner for Blackpool & Fylde
* Death under state's jurisdiction
* Downs syndrome woman lived under an order in adult care home
* Coroner did not direct "expanded verdict" - under s5(2) of the CJA 2009
* No breach of "systems duty" or "operational duty" under art 2
* Therefore enhanced procedural obligation was not necesssary
37
Difference between "systems duty" and "operational duty" under Art 2
Under Article 2, the "systems duty" requires states to have *appropriate legal and administrative systems* in place to protect the right to life generally, while the "operational duty" obligates them to t*ake specific steps to protect individuals when they are aware* of a real and immediate risk to life.
38
Enhanced Procedural Obligation
Designed to ensure proper accountability and redress.
* Not necessary in Maguire
39
Art 2 Case for negative obligations
McCann, Farrell and Savage
## Footnote
Prevent the taking of life - no more than absolutely necessary
40
Art 2 Case for Positive obligations
Osman v IK
## Footnote
protect life from non-state actors
41
Art 2 Case for secondary obligation to investigate deaths where the state is involved
McCann
Amin
## Footnote
Secondary obligation to investigat deaths involving the stte
42
Is the right to life is an absolute right in respect of which there can be no derogation or limitation on the part of the state?
It is **not possible for a state to seek to derogate** from the right to life, article 2(2)(a) to (c) provides specific circumstances in which use of fatal force by the state may not be deemed to have breached the Convention.
**Article 2 is therefore not an ‘absolute’ right.**
43
Duty for third parties
## Footnote
Art 2
Sttate could also be held subject to a positive obligation under Article 2 to protect or preserve life.
Sate liability will be limited because it will only attach to state authorities if they **knew, or ought to have known**, that there was a real and immediate risk to life but failed to take appropriate measures.
**(Osman v UK)**
44
Case where ECtHR held that where a death has been caused by a third party, rather than state agents, there will still be a duty to investigate.
R (Amin)
45
ECHR Art 3
Summary
Right not to be subject to torture or inhuman and degrading treatment pr punishment.
46
ECHR Art 3
Provision
* Prohibition of torture = **Absolute right**
* Permits no derogation
* Imposes negative and positive duty - **positive duty is not absolute**
47
Duty to not commit torture is....
Absolute
(negative)
48
Duty to prevent torture is....
Not absolute
(Positive)
49
Torture - threshold
* Higher threshold
* Agrravated, deliberate and cruel form of treatment
* Distinction from inhuman and degrading treatment **(Ireland v UK)**
50
Inhuman and degrading treatment - threshold
**A high threshold**
* Only serious ill-treatment and neglect within scope
* Must be a minimum level of severity - depends on facts of the case :
- Nature and context of treatment, manner of execution, duration, physical and mental effects, impact on health of person involved - negative and postivie (*R(B) v Responsible Medical Officer*)
* Special stigma
| R(B) v Responsible Medical Officer
51
R(B) v Responsible Medical Officer
## Footnote
Article 3 - inhuman and degrading treatment
Case concerning a patient detained under the Mental Health Act 1983, the Court of Appeal ruled that the responsible medical officer (RMO) had the authority to impose treatment without consent, provided it was in the patient's best interests and that the treatment was necessary for their health or safety.
**Not inhuman and degrading**
52
Ireland v UK
## Footnote
Art 3
European Commission
* Systematic programme of treatment to reveal information
* Five techniques - wall standing, sleep depriv, withoholding food etc.
* Combined techniues = **amounted to torture**
ECtHR
* Found inhuman and degrading, not torture
* Reluctance to classify psych techniques as torture = **considerable criticism**
## Footnote
Desire to preserve stigma of torture
53
Which case esatblished that "torture" should be regarded as qualitatively different?
* Ireland v UK
* Arose from desire to preserve stigma of torture.
54
Aksoy v Turkey
## Footnote
Art 3
* Violent
* Stripped naked
* Electrodes on genitals
* Beaten
= torture
| Torture
55
Aydin v Turkey
## Footnote
Art 3
* Raped, beaten, sprayed with water
= Torture
* Torture might have occurred, even without rape.
| Torture
56
Napier v The Scottish Ministers
## Footnote
Art 3 - Inhuman and degrading
* Lack of toilet facilities
* Exacerbated facial eczema
* Conditions and effect on physical health
= degrading treatment and violation of Art 3
* Individual basis based on phys
| Inhuman and Degrading Treatment
57
R(Spinks) v SoS Home Dept
## Footnote
Art 3 - Inhuman
* Mandatory life sentence prisoner, convicted of murder
* Cancer in colon, reeciving medication
* SoS failed to release him on compassionate grounds, interfered with chemo
* Must have been **a serious and wholly unacceptable kind**
* **Not reached in this case** = **no breach**
| Inhuman and Degrading Treatment
58
R(Q) v SoS for Home Dept
## Footnote
Art 3
* Imposes a positive duty on public authroirites to take action to **prevent individuals** being subject to torture and/or inhuman and degrading treatment
## Footnote
Positive obligation to orevent torture and/or inhuman treatment - not absolute
59
Is a **negative obligation** under Art 3 absolute?
Yes
| Torture and/or degrading treatment
60
# Tor
Is a **positive obligation** under Art 3 absolute?
* No it is not absolute
* R(Bagdanavicius) v SoS for Home Dept
* Similar approach to Art 2
| Positive obligation to orevent torture and/pr inhuman treatment - not ab
61
R(Bagdanavicius) v SoS for Home Dept
## Footnote
Art 3 - positive obligation
* Claimant may be able to establish an Art 3 positive obligation
* If can est authorities **knew or ought to know of particular circumstances**
62
Soering v UK
**Facts**
## Footnote
Art 3
* German national facing extradition on capital charge
* Failed on Art 2 at the time as was not yet outlawed
* Succeeded on Art 3 - manner of death = inhuman / degrading = can take many years, producing **debilitating psych condition, the "death row phenomenon"**
63
Chahal v UK
## Footnote
Art 3
* Deportation risk
* Activist for Sikh separatism in India. UK want ed to deport to India for criminality
* Indian Gov had indicated proper treatment
* Punjab Police = real risk of rogue elements
**Extended principle in Soering, to situations where non-state actors represent possible cause of Art 3 Mistreatment**
64
Which case extended Art 3 mistreatment to non-state actors?
**Chahal v UK**
Extended the principle in Soering
65
Refoulement
Forceable return of refugees or asylum seekers to home coutnry where there is risk of persecution and danger.
| Art 3 - Inhuman and degrading
66
R (AAA(Syria) and Others v SoS for Home Dept
Non-refoulement = core principle of International law
**Real risk of ill-treatment**
| Art 3 - Inhuman and degrading
67
Why was Rwanda scheme not allowed
* Rwanda poor human rights record
* Defects in processing asylum claims
* Failure to abide by promises in similar agreement with Israel
68
How far does the positive obligation under Art 3 extend?
* Can claim deterioriation to phys and mental health due to not accesssing same healthcare standards as in host state.
## Footnote
Not to deport - duty on medical grounds
69
AM v Zimbabwe
## Footnote
Art 3 - medical grounds
* UK's obligation not to deport on medical grounds applies when ...
* Real risk ... **serious, rapid and inrreversible decline** in health resulting in either *intense suffering* or *reduction in Life Expectancy*
| Paposhvilli v Belgium; Art 3 - Inhuman and degrading
70
Vinter and others v UK
* Whole life orders, meant that applicants could never be rleased from prison amounted to unhuman and degrading treatment.
Confliccts with AG Ref case where found that the whole-tarrif regime is compatible with Art 3
| Art 3 - Inhuman and degrading
71
Is a whole-life tariff regime compatible with art 3?
* **Vinter and Others v UK** = inhuman and degrading
* **Attorney General Ref (No 69 of 2013)** - found whole-life tariff regime is compatible
* Clear difference of opinion
| Art 3 - Inhuman and degrading
72
Investigative duty under article 3
**Key Case**
DSD and NBV v Commissioner of the Metropolis
73
DSD and NBV v Commissioner of the Metropolis
## Footnote
Investigative duty under Art 3
* Breach of police's obligation to conduct an **effective investigation** into crimes committed by former taxi-driver
* John Worboys
* Failure to prevent violation of claimants Art 3 rights
* **Operational duty to conduct a proper investigation fall on police**
74
Is the assessment of whether treatment will engage article 3 is based only on objective factors such as the manner of the treatment and its duration?
Subjective factors, such as the psychological effects on the individual person concerned, will also be taken into account
(see **R (B) v Responsible Medical Officer, Broadmoor.)**
75
What is the **secondary obligation** under Art 2?
* Investigate deaths where the state is involved
**McCann; Amin**
76
Would a positive obligation on the state arise through the individual’s intended removal to a non-ECHR member state
Soering did not limit the application of the positive obligation of the Convention to cases where the removal would be to an ECHR member state.
Soering was able to successfully argue that if the UK extradited him to the USA, it would breach its positive obligation under article 3.
77
Article 5 ECHR
Protects the **right to liberty and security of the person**
78
What level of lethal force is allowed?
* No more than absolutely necessary
**Article 2(2)**
79
Art 5 ECHR
**provisions**
* Liberty and security of the person
* Limited right
* Can derogate in emergency situations
80
What obligations are contained in Art 2, and identify supporting case law
* Negative obligation *(McCann, Farrell and Savage)*
* Positive obligation (*Osman v UK)*
81
Article 5(1)
Provides basic, substantive right to liberty and the circumstances in which the state can lawfully deprive persons of their liberty, such as arrest
82
Does Art 3 include a postive duty?
* Yes a positive duty on the state **Soering; Chahal**
* Invesigative Duty **DSD v NBV**
83
Article 5(2)
Governs the right for a person to be informed of the **reasons for their arrest**
84
Article 5(3)
A person who has been arrested and detained shall be **"brought promptly before a judge"**
85
Article 5(4)
A person who has been deprived of their liberty by the state Art 3 - Inhuman and degrading decided speedily by court, or released.
86
Article 5(5)
Contains an enforceable right to compensation for a victim of an article 5 breach
87
Deprivation of liberty
Art 5(1)
No one shall be deprived of his liberty save as prescribed by law.
eg limitations to the right which allow the lawful deprivation of liberty
*eg arrest*
88
Art 5(1)(c)
Arrest for a criminal offence
| Limitation to Art 5(1)
89
The legal basis for deprivation of rights
Must be sufficiently clear
90
When will Art 5 become engaged?
Art 5 is not engaged unless a person has been deprived of their liberty.
91
Engel v Netherlands
## Footnote
Art 5(1) - Deprivations
Art 5(1) was not concerned with mere restrictions on liberty, **only deprivations of liberty. **
* Need to look at the **concrete situation** a person is in
* Consider type, duration, effects and manner of implementation of the measure in question
| Deprivations v Restrictions on Liberty - Art 5
92
Guzzardi v Itay
## Footnote
Art 5(1) - Deprivations
* Difference between deprivation and restriction of liberty is one of **degree or intensity**, not of nature or substance.
* Deprivation = strict arrest and detention in prison
## Footnote
Deprivations v Restrictions on Liberty - Art 5
93
What key distinctions are important in relation to "kettling" and "control orders"
* Deprivation of liberty
* A mere restriction on liberty
94
Kettling and Art 5(1)
* Not a deprivation of liberty so long as **proportionate and not imposed arbitarily**
* Least intrusive and most effective crowd control measure - to avoid real risk of serious injury and damage to property.
**Not deprivation of liberty under Art 5(1)**
* Kettling may have *become deprivation* had it not **remained necessary** throughout the day.
## Footnote
* **Austin v UK**
95
What are control orders?
* **Prevention of Terrorism Act 2005**
* Designed to control the movements and activities of certain individuals for the purpose of providing protection against rerrorist activity
* Home office argued that they were *not sufficiently restrictive* to amount to a deprivation of liberty.
| Introduced after Belmarsh
96
Re JJ
## Footnote
Control orders
* Non-derogating control order imposed by the Home Sec amounted to deprivation of liberty
* Engaged protetion of art 5(1) and were unlawful
| Control Orders in Art 5(1)
97
Cases contrasting with Re JJ
## Footnote
Control order
**SoS for Home Dept v E
AF**
* Degree of restraint = core issue of physical confinement
* *Periods of confinement were far less* than than for **Re JJ**
* Considered *cumulatively* with other restrictions
* **Did not amount to deprivations of liberty**
98
PBL meaning
Prescribed by law
99
When may deprivation of liberty not constitute a violation of article 5(1)?
* Deprivation must have been prescribed by law **PBL**
* Must be justified by one of the limitations **Art 5(1)(a-f)**
100
The ECtHT has prescribed by law a test for determining whether PBL with respect to
* Article 5
* And the qualified rights
101
What is the test for PBL
* Interference with the Convention right has *some basis in national law* **Silver v UK** (statute or case law)
* Identified legal basis must have certain qualities **Sunday Times v UK**
102
What does the need for specific legal rules protect against in PBL?
Arbitrary interference with rights.
103
What were the qualities of the specific legal basis identified in **Sunday Times v UK**
* Law must be *adequately accessible*
* Must be formulated with *sufficient precision* to enable a citizen to regulate his conduct
* Must be *able to forsee*, the consequences which a given action may entail
BUT **need not be forseeable with absolute certainty**
104
Which case confirmed that the Sunday Times "test" would apply to other relevant articles?
**Steel and Others v UK**
Test applies to Art 5, and other articles
105
Wingrove v UK
## Footnote
PBL
ECtHR rejected a submission that the criminal offence of blasphemy was so uncertain that it ws inordinately difficult to forsee if there would be an offence.
**Blasphemy laws by their nature cannot lend themselves to precise legal definition**
* Applicant could have reasonably forseen that with appropriate legal advice that film = offence.
| Re PBL and Art 10
106
Hashman and Harrup v UK
## Footnote
PBL - forseeability
What is required for the consequences to be **forseeable** depends to a degree on the ontent of the legal provision in issue.
| PBL
107
Hashman v Harrup UK
## Footnote
Binding orders
ECtHR had to consider whether "binding orders" were sufficiently clear to be prescribed by law
| PBL
108
Contrast steel and others v UK and Hashman v Harrup UK???
109
Gillan and Quinton v UK
**PBL**
* To meet Sunday Times requirements
* Legal protection against arbitrary interferences by public authorities in safeguarded rights
* Unfettered power = contrary to the rule of law
* Law must indicate **with sufficient clarity** - the scope of discretion conferred on competent authorities.
| Stop and search powersd of Met Police under s44 of the Terrorism Act 200
110
Gillian and Quinton v UK
**Fact**
Stop and search powersd of Met Police under s44 of the Terrorism Act 2000
* Expedient way to prevent terrorism.
* Inadequate safeguards against arbitrary interference.
* Expedient = advantageous or helpful; **not "necessary"**
* Authorisations rolling, could stop on a hunch = **not objective**
* Arrests made, *but not for terrorirsm*
* Black and Asians disproportionately searched.
**The law did not meet the standard under art 8 in relation to the Sunday Times Test**
111
R(Roberts) v Met Police Commissioner
* s60 of the Criminal Justice and Public Order Act 1994
* Empowered a senior police officer to make stop and search authorisations for 24 hours wehre reasonably believed there would be incidents involving **serious violence**.
* Then could search any person or vehicle without grounds for suspicion
* Challengd by youth support worker who failed to pay bsu fair.
* **Benefits of random searches in detecting weapons**
* Held that there combination of requirements of the CJPO, and PACE and Equality Act ensured that there were **stronger safeguards against abuse** in **Gillian**
* NOT INCOMPATIBLE WITH ARTICLE 8
112
What case can the decision in *Gillian* be contrasted against?
*R(Roberts) v Met Police Commissioner*
Found that powers were not incompatible with art 8 as there were stronger safeguards
113
PACE
Police and Criminal Evidence Act 1984
114
Art 5(1)(c)
* A person may be deprived of their liberty where that person is being unlawfully **arrested and detained**
Must have
* Reasonable suspicion of an offence having been committed
* Or Considered it reasonably considered necessary to prevent his committing an offence.
115
Two limbs of Art 5(1)(c)
1) Arrest and detention on **reasonable suspicion** of having committed an offence
OR
2) Reasonably necessary to **prevent committing an offence** or fleeing after having done son.
116
Key case on the "reasonable suspicion" requirement within article 5(1)(c)
Fox, Campbell and Hartley v UK
117
Fox, Campbell and Hartley v UK
## Footnote
Reasonable suspicion
* Northern Ireland 1970s
* Arrest on suspicion, not reasonable suspicion.
* ECtHR held that even in emergency, require **reasonable suspicion**
* Reasonable suspicion = facts or information that would satisfy an objective observer may have committed the offence
| Art 5(1)(c) - Limb 1 - Reasonable suspicion
118
**Reasonable Suspicion** as defined in Fox, Campbell and Hartley
* Facts or information that would satisfy an objective observer. that the person concerned may have committed the offence
119
Second Limb of 5(1)(c)
* Permits arrest and detention "when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so"
120
Reasonableness Test under 2nd Limb of 5(1)(c)
* Test for reasonableness is the same as in Fox, Campbell & Hartley
* Would the facts or information satisfy an objective observer that the person concerned may have committed an offence
**Ostendorf v Germany**
121
Scope of 2nd Limb of 5(1)(c)
* Some disagreement between ECtHR and UK SC
Key Cases
* Ostendorf v Germany
* R(Hicks) v Commissioner of Police for the Metropolis
122
Ostendorf v Germany
* ECtHR majority found detention of person under second limb of art 5(1)(c) must be **for the purpose of bringing him before a competent authroirty**
* Not permitted to detain football hooligan for duration of football match to prevent violence in match
| Reasonableness Test under 2nd Limb of 5(1)(c)
123
R(Hicks) v Commissioner of Police for the Metropolis
* Several people detained for 2.5 - 5.5 hrs to prevent breach of peace by disrupting HRH Cam wedding.
* Second limb permits **proportionate detention for preventative purposes**, followed by early release.
* Bringing before a competent legal authority is = dependent on cause for detention continuing long enough.
| Reasonableness Test under 2nd Limb of 5(1)(c)
124
S, V & A v Denmark
## Footnote
Reasonableness Test under 2nd Limb of 5(1)(c)
* Favoured Hicks, departed from Ostendorf.
* **Ensure it is not impracticable for the police to fulfil their duties**
* Second limb of the article should be capable of permitting short term detention of a person outside of criminal proceedings for the purpose of **preventing a concrete and specific offence**
| Reasonableness Test under 2nd Limb of 5(1)(c)
125
Article 5(2)
* Everyone who is arrested shall be **informed promptly,** in a language which he **understands**, of the **reasons** of his arrest and of **any charge** against him
126
Fox, Campbell and Hartley v UK
**reasons for arrest**
* Art 5(2) discussions
* Broad allegation of "terrorist" did not amount to sufficient reason = failed to satisfy this part of the article.
* **Subsequent questioning** in relation to specific offences did provide enough detail for the persons questioned to understand why they had been arrested, **within a reasonable timeframe**
* No breach of art 5(2)
| Reasons for arrest
127
Art 5(3)
* Important due process guarantee
* Right for a person arrested and detained to be **"brought promptly before a judge**
| Length of detention
128
Purpose of Art 5(3)
* To **provide a safeguard against any ill-treatment** and abuse of power by law enforcement officers and to keep to a minimum any injustified interference with individual liberty
**McKay v UK**
| Length of detention 5(2)
129
Brogan v UK
## Footnote
Length of detention 5(2)
* Took a restrictive approach to requirement of promptness.
* French translation = immediately
* Limited degree of flexibility
| Length of detention 5(2)
130
In what circumstances can prolonged detention be justified
* Terrorist offences
* Can justify prolonging the detenion period
* However**, four days, and six hours** **without judicial authorisation** was too long,
* Weakens procedural guarantee agaiinst arbitray interferences
131
McKay v UK
## Footnote
Length of detention 5(2)
* Found ***Brogan***, established a maximum period of four days
* ECtHR has since emphasised that shorter periods of time can still be incompatible with art 5(3)
| Length of detention 5(2)
132
Ipek v Turkey
## Footnote
Length of detention 5(2)
* Detention of three x 16 year old bous for a period of **three days and 9 hours** before court.
* Turkey argued terrorism
* ECtHR = detention not sufficiently prompt
* Emphasised boys were minors, and other safeguards were absent.
* Police had failed to take investigative measures - other than questioning.
**No special difficulties that would have preventing authorities bringing before a judge sooner**
| Length of detention 5(2)
133
McKay v UK
## Footnote
Length of detention 5(2)
A much shorter period of detention was held to be compatible with Art 5(3)
=**36 hours**
* Arrested for robbery before magistrates.
* Magistrates had competence to examine lawfulness of arrest and detention.
* Satisfactory guarantees against abuse of power by authorities = ensured compliance.
134
S, V & A v Denmark
**promptness**
* ECtHR emphasised where a person is subject to **preventative detention**, the **promptness** should be **hours rather than days**
| Length of detention 5(2)
135
Art 5(4)
| **Lawfulness of ongoing detention**
* Person derpived of liberty by arrest / detention
* Shall be entitled to take proceedings by which lawfulness of detention shall be decided speedily by a court
* Release ordered if detention is not lawful.
| Lawfulness of ongoing detention
136
Art 5(4) has been held to provide....
a **right of review** of the lawfulness of the person's ongoing detention not only by a **court of law**, but also **other bodies of judicial character**
| Lawfulness of ongoing detention
137
Hirst v UK
## Footnote
Lawfulness of ongoing detention
* ECtHR held delays of between 21 months and two years between Parole Board reviews and applicant's continued detention amounted to a breach of art 5(4)
| Lawfulness of ongoing detention
138
Where there is an automatic periodic review required by national law....
Decisions must follow at regular intervals.
Intervals of **more than one year** are generally not reasonable.
Periods elapsed not justified by rehab/monitoring considerations
Art 5(4)
**Hirst v UK**
139
Art 5(5)
A person who is the victim of an article 5 breach by a state is entitled under art 5(5) to claim **enforceable right to compensation.**
However, **s8 of the HRA provides a remedy in UK domestic courts
**
* s5(5) only invoked if needs to be taken to ECTHR
140
What does Art 5(1) provide
* Basic, substantive right to liberty, sets out the cirucmstances whereby the state can lawfully deprive persons of their liberty such as arrest.
141
When is art 5(1) engaged
Must be **"deprivation"** and not **mere restriction** of liberty
| **ENGEL; GUZZARDI**
142
The two requirements the state must show to justify deprivation of liberty
1) Limitations in art 5(1) must apply (eg 5(1)(c)) = **Fox, Campbell and Hartley; Hicks**
2) Provision state is ruling on must be PBL (**Sunday Times; Gillian**)
143
Which articles provide the due process guarantees that a detained person is entitled to?
* Art 5(2) - 5(5)
144
Art 5(3)
Right once arrested and detained to be brought promptly before a judge
(**McKay**; **Brogan)**
145
What is meant by legal basis
Legal precedent either from **statute** or **common law **
