Article 5

Question 1

what is article 5

Answer 1

right to liberty and security of person

Question 2

no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

Answer 2

you have been found guilty of a crime and sent to prison
you have not done something a court has ordered you to do
there is reasonable suspicion that you have committed a crime, someone is trying to stop you committing a crime or they are trying to stop you running away from a crime
you have a mental health condition which makes it necessary to detain you
you are capable of spreading infectious disease
you are attempting to enter the country illegally, and
you are going to be deported or extradited (sent to a country where you have been accused of a crime).

Question 3

If arrested, HR provides you have the right to:

Answer 3

be told in a language you understand why you have been arrested and what charges you face
be taken to court promptly
bail (temporary release while the court process continues), subject to certain conditions
have a trial within a reasonable time
go to court to challenge your detention if you think it is unlawful, and
compensation if you have been unlawfully detained.

Question 4

HL V UK (2004)

Answer 4

depravation of liberty, detention for mental health, detained in a psychiatric institution as an ‘informal’ patient, consent lacking

Question 5

CONTROL ORDERS

Answer 5

TPIM (terrorism prevention and investigation measures)
a terrorist suspect may be made subject to this order, places conditions on their residence, movement and activities.
Guzzardi v Italy- ECHR decided these restrictions amounted to a depravation of his liberty

Question 6

what is kettling?

Answer 6

where a group of people are held by police in an area as a means of controlling a demonstration. has no statutory authority.
doesn’t offend A.5

Question 7

Austin v UK and kettling?

Answer 7

police use of kettling, many held for 7 hours

liberty not deprived as kettling was unavoidable, necessary and time was kept to a minimum required for that purpose

Question 8

R(moos) v UK and kettling?

Answer 8

court ruled police had acted unlawfully in containing protestors.
made clear police must be in reasonable apprehension of an ‘imminent breach of the peace’ before taking ‘preventative action’, including kettling, this should only be a last resort catering for situations about to descend into violence’.
police have no power to arbitrarily kettle protestors

Question 9

what does arbitrary mean?

Answer 9

based on random choice or personal whim, rather than any reason or system.

Question 10

Mengesha v MPC

Answer 10

considered whether police can lawfully require individuals ‘kettled’ to give details or be videoed before leaving the kettle
breach A.8
police requirement was unlawful

Question 11

Austin v UK, courts did not consider restrictions can be described as ‘deprivations of liberty’ so long as:

Answer 11

• -they were rendered unavoidable as a result of circumstances beyond control of authorities
• -necessary to avert real risk of serious injury or damage
• -were kept to a minimum required for that purpose

Question 12

meaning of deprivation of liberty

Answer 12

HM v Switzerland
confinement generally due to an arrest by public authority
Doesn’t always depend on being locked up
Austin v UK, can be deprived even when departure is not prevented by locked door or physical barrier and even if he has social contact with outside world

depends on circumstances in each case

Question 13

Amuur v France

Answer 13

holding third country nationals in transit zone of airport was deprivation of liberty

Question 14

Shimovolos v Russia

Answer 14

had been arbitrarily arrested, breach of A.5

Question 15

Kasparov v Russia

Answer 15

detained, tickets and passports confiscated, questioning at police office followed, prevented from leaving for 48hrs, armed officer guarded door
no evidence of forgery as authorities claimed, so unlawful deprivation of liberty

Question 16

Ostendorf v Germany

Answer 16

C had been ordered to stay with group of supporters and clearly warned of consequences of his failure to comply with order (he hid in toilet)
arrest and detention were lawful under 5.1(c)

not lawful under A.5.1(c) as potential Vs weren’t specified

Question 17

additional positive duty

Answer 17

positive obligation on state to protect citizens , includes:

• explaining where individual is when taking into detention
• preventing individuals disappearance
• carrying out investigation where person is held in state custody but has not been seen since

Question 18

IN ACCORDANCE WITH PROCEDURE PRESCRIBED BY LAW

conformity with domestic law

Answer 18

law will be domestic law in issue
whether action is in conformity is question for state
ECHR will look at quality of domestic law to consider whether its arbitrary

Question 19

IN ACCORDANCE WITH PROCEDURE PRESCRIBED BY LAW

is measure arbitrary

Answer 19

will be arbitrary where there’s no link between detention and reason given for it.

in UK, indeterminate sentences are compatible with A.5 as long as there’s link between it and reason for continued detention

Stafford v UK - breach of A.5, no sufficient connection between original conviction of murder and risk he may commit further non violent offences

Question 20

indeterminate sentence

Answer 20

imposed if court thinks an offender is a danger to public and it one where:
-no date set when prisoner will be released

• prisoner has to spend min amount of time in prison before considered for release (tariff)
• parole board decides if prisoner can be released-often on license

Question 21

IN ACCORDANCE WITH PROCEDURE PRESCRIBED BY LAW

is there legal certainty?

Answer 21

any measure should be based on legal rules, should not be vague, unclear, unpredictable
offender should be able to foresee what action may be taken by state

Question 22

JUSTIFIED DEPRIVATION OF LIBERTY crime

Answer 22

allows for individual to be detained following a conviction.
Stafford v UK -continued detention after conviction cannot be arbitrary, must be linked to conviction.
conviction must be made by a competent court, meaning it has to be independent and impartial

Question 23

JUSTIFIED DEPRIVATION OF LIBERTY crime, reasonable suspicion

Answer 23

must be facts which satisfies requirement of police having reasonable suspicion, person can be arrested for questioning to obtain info

Fox, Campbell and Hartley v UK - law requires constable to ‘genuinely and honestly’ suspect person of being terrorist. question for court is whether this amounted to reasonable suspicion that would satisfy objective observer.
no evidence that honest belief was strong enough to be reasonable

Murray v UK - no violation where a suspected terrorist is detained on ‘honest suspicion based on reasonable grounds’

Question 24

JUSTIFIED DEPRIVATION OF LIBERTY non compliance with court order

Answer 24

allows for lawful arrest or detention in cases like arrest under warrant for non-payment of fine, breach of bail order..
allows police to administrate criminal law like requiring driver to take drug-driving test

measure must be necessary and obligation must be ‘specific and concrete’ so detention is not based on vague grounds

Question 25

Additional requirements to justify deprivation of liberty in cases of lawful arrest or detention (PROMPTLY GIVEN REASONS)

Answer 25

everyone arrested, detained must be informed promptly in language they understand of reasons for arrest or detention.
UK- this is covered in PACE 1984
reason doesn’t have to be given in full at very moment of arrest but should be given promptly.

Fox, Campbell and Hartley v UK, ECHR decided a delay of 7 hours was acceptable as it allows police to make further enquiries and prepare for interview

ECHR are flexible on level of info to be given as long as reasons for arrest/detention are made clear from start

Question 26

Additional requirements to justify deprivation of liberty in cases of lawful arrest or detention (BROUGHT PROMPTLY BEFORE JUDICIAL OFFICER AND TRIAL WITHIN REASONABLE TIME)

Answer 26

3 parts:

1) should be brought promptly before judge or other officer authorised by law to exercise judicial power. should be able to make binding decision that can’t be overturned by govt
2) right to release on bail, except when custody is justified. right to bail not absolute, if objected to it must be justified by judge. covered by Bail Act 1976

3) right to be tried within reasonable time. purpose is to ensure no one spends too long in detention before trial. what is reasonable time depends on circumstances of each case including seriousness of charge.
necessary to consider whether continued detention awaiting trial is required or bail can be granted

Question 27

right to compensation

Answer 27

provides everyone victim to unlawful arrest or detention shall have right to compensation.
this right arises from A.5(1) and (4).
amount of compensation assessed by the court finding detention unlawful.

unlikely compensation awarded to feelings of disappointment or frustration, actual financial loss caused by unlawful detention can be recovered