Article 5

Question 1

Article 5

Answer 1

The right to liberty ad security of person, no one shall be deprived of his liberty save in the following cases and in procedure prescribed by law. The ECHR has explained that the aim of this right is to prevent any arbitrary deprivation of liberty, this means anything illegal, unnecessary, disproportionate or without reason

Question 2

Interference?

Answer 2

This is a limited right and cannot be interfered with by the state unless allowed under subjection a-f or the state derogates.

Question 3

Arbitrary detention

Answer 3

People have a right not to be arbitrarily detained by the state.

Question 4

What historical right does this link to?

Answer 4

Magna Carta 1215- the right not to be imprisoned without trial- Habeas Corpus.

Question 5

Positive obligation (security)

Answer 5

The right to security places a positive obligation on the state to explain when a person has been detained and the procedural safeguards in place.

Question 6

Section 5(1)

Answer 6

Everyone has the right to liberty and security of person. No one shall be deprived his liberty save in the following cases and in accordance with the procedure prescribed by law

Question 7

exception a

Answer 7

-a) the lawful detention of a person after conviction by a competent court

Question 8

exception b

Answer 8

-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 the law

Question 9

exception c

Answer 9

-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 offense or when it is reasonably considered necessary to prevent his committing an offense or fleeing after having done so.

Question 10

exception d,e and f

Answer 10

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 a competent legal authority.
e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics, drug addicts or vagrants.
f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into a country or of a person against whom action is taken with a view to deportation or extradition.

Question 11

Section 5(2)

Answer 11

Everyone who is arrested shall be informed promptly, in a language which he or she understands, of the reasons for his arrest or any charge against him.

Question 12

Section 5(3)

Answer 12

Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear in trial.

Question 13

Section 5(4)

Answer 13

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his released ordered if the deprivation is not lawful.

Question 14

Section 5(5)

Answer 14

Everyone who has been the victim of an arrest or detention in contravention of this article shall have enforceable rights and compensation.

Question 15

Which case illustrates that a person must be deprived of their liberty , merely restricting a persons liberty may not always be considered a deprivation.

Answer 15

Guzzardi v Italy (1981)
Guzzardi was suspected of being in the mafia. He was ordered to live on an island with limited contact with others and under curfew. The court decided that this was more than a restriction of liberty under 5(1). The decision was based on the degree of intensity. The court gave a list of what could be considered, ‘type, duration, effects and manor of importation of the matter in question.

Question 16

Case to illustrate law on deprivation during a protest.

Answer 16

Austin and ors v UK
The police used a technique known as kettling during a protest in London where protesters are blocked into a small area and gradually released over a number of hours. It was held by the HOL and later the ECHR that this did not constitute a deprivation as police were justified in doing this to prevent violence, damage or injury. This decision was widely criticised. Critics say for kettling to be considered justified it must fall into the categories of 5(1)a-f.

Question 17

Case to illustrate law on the deprivation of liberty during a riot.

Answer 17

R (Moos) v metropolitan police commissioner (201)
The high court ruled that kettling of the G20 protestors was unlawful however the CoA decided that the police had acted lawfully. They ruled the police had no arbitrary power to kettle people but it should be used as a last resort when the is evidence of an imminent breach of the peace.

Question 18

Case to illustrate the law about deprivation whilst in care

Answer 18

Cheshire West and Chester Council v P (2014)
P has Cerebral Palsy and Down syndrome. He was moved to a home offering 24 hour care. The court of fist instance decided that it was a deprivation of his liberty, but in his best interests. CoA held no deprivation by the SC held he was deprived of his liberty. The deprivation was based n the fact that the applicant was ‘under continuous control and not free to leave.’ This creates an objective test. SC held capacity or disability or persons compliance is not relevant.

Question 19

Case to illustrate the law about deprivation whilst in care

Answer 19

JE v DE and Surrey County Council
JE was the wife of DE who had suffered a stroke, was blind and had dementia. DE voluntarily voluntarily moved into the first care home by his wife and taken to another care home a year later. His wife claimed this was a deprivation of liberty because he did not have the freedom to leave. ECHR held that it was a deprivation.

Question 20

A case to illustrate the law regarding deprivation and mentally disordered patients.

Answer 20

Winterwerp v Netherlands (1979)
Detention can only be justified if:
-patient has a medically recognised condition established by a medical expert
-the disorder must be sufficient to justify the detention
-detention should only be for the duration that the disorder exists.
-detention must be at an appropriate institution
-the detention must be periodically reviewed.

Question 21

What are the three types of stops that the police can do?

Answer 21

stop and question
stop and account
stop and search

Question 22

Outline a stop and question

Answer 22

If the police stop and question a person they are free to refuse to answer (unless they are under arrest). In Rice v Connolly (1966) the suspect would not answer questions when acting suspiciously in an area that had suffered some burglaries. His conviction for ‘obstructing a police officer in the execution of his duty’ was quashed. However in Ricketts v Cox (1982) the suspect was very abusive and hostile when questioned, he was held guilty of ‘obstructing a police officer I the execution of his duty’.

Question 23

Stop and account

Answer 23

The police can ask someone to stop and account for their behaviour, action or presence in an area or possession of anything. All stops must be recorded, and a copy given to the person stopped. A record does not need to be made if a police officer is asking general questions like directions.

Question 24

Stop and search

Answer 24

This police power includes the ability to stop and question a suspect if necessary search the person and their vehicle. The strict rules for stop and search are contained in s.1 Police and Criminal Evidence Act (1984) and supplemented in Code A. There is also additional powers in s60 Criminal Justice and Public Orders Act (1994) and s.44 Terrorism Act 2000.

Question 25

Explain a standard stop and search

Answer 25

Takes place under s.1 PACE 'the police must have reasonable grounds for suspecting a person is in possession of stolen goods or prohibited articles. This must be done in a public place. Code A states these power must be used fairly with respect and without discrimination.

Question 26

What constitutes reasonable grounds?

Answer 26

Police must have a good reason to stop and search but reasonable grounds are not required to search a suspect under s44 of the Terrorism Act 2000 or s60 of the Criminal Justice and Public Orders Act 1994 in which a senior officer can authorise searches to take place in an area without reasonable grounds if they suspect that there is a risk of serious violence.

Question 27

When can the police suspect things?

Answer 27

Suspicion must be based on intelligence, information or the suspects behaviour. Nit their age, race, gender or previous convictions.

Question 28

What is a prohibited article?

Answer 28

Includes weapons (Fire Arms Act 1968), things used to commit burglary, drugs (Misuse of drugs act 1971, terrorism (Terrorism act 2000) or criminal damage.

Question 29

Stop and search in a public place

Answer 29

Can only ask you to remove your jacket, coat, gloves. Must move to a private place nearby if they wish you to remove more clothing. Reasonable force can be used (s.117 PACE). Stolen or prohibited articles can be seized (s.1 PACE). Shoes can be removed if under the terrorism act, a disguise can be removed under the CJ and PO Act.

Question 30

Record of the search

Answer 30

-must be made as soon as possible after the search -must include date, time, place, reason for search, self defined ethnicity, outcome, and if injury or damage was caused -a copy is to be given to the suspect

Question 31

Powers under s.60 Criminal Justice and Public Orders Act 1994

Answer 31

R (Roberts) v Commissioner of Police of The Metropolis Being kept waiting during a stop and search procedure is not a deprivation of liberty. Mrs Roberts was stopped and searched on a bus under s60 CJ&PO Act based on the possibility of having an offensive weapon. She had not been arrested, handcuffed or restrained. This was not a deprivation of liberty.

Question 32

Powers under s44 of the Terrorism Act 2000

Answer 32

A random stop and search under s44 TA 2000 was not lawful. Under s47A TA, there must be reasonable belief that an act of terrorism will occur.

Question 33

Stop and search: extra information

Answer 33

During a stop and search victim is not under arrest and is therefore not detained. If the rules of stop and search are not followed, it will not be within accordance with the law Osman v UK, police did not give their names to the suspect making the stop unlawful and Osman couldn't be charged.

Question 34

Explain the phrase 'fishing expedition'

Answer 34

This is not allowed, this is where a person is searched without reasonable rounds. The police cannot search in hope of discovering reasonable grounds to justify the search.

Question 35

What is stated in s5(1)

Answer 35

Everyone has a right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with procedure prescribed by law.

Question 36

Give extra details

Answer 36

Assuming an arrest or detention follows the procedure prescribed by English law, it is lawful under English law and doesn't breach A5. An unlawful arrest or detention contrary to the rules of PACE will breach A5. The law needs to be certain, a person should be able to foresee when an arrest will take place. The law should not be arbitrary, the ECtHR may consider law arbitrary if there is no link between the detention and the reasons for it eg Stratford v UK

Question 37

Stratford v UK

Answer 37

Indeterminate sentences are considered compatible with the A5 if there is a link between the sentenced passed by court and the reason for continuing detaining.

Question 38

Procedure of law when detection is lawful a-

Answer 38

a- the lawful detention of a person after the conviction from a competent court - Stratford v UK 2002 :a person convicted by the courts can be detained however it cannot be arbitrary.

Question 39

Procedure of law when detection is lawful b-

Answer 39

b- the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to fulfil any obligation prescribed by law: this could include detention for contempt of court, arrest for a warrant for non-payment or fines, or arrest for breach of bail condition.

Question 40

Procedure of law when detection is lawful c-

Answer 40

The lawful arrest or detention of a person effected for the purpose of bringing him before the contempt legal authority on reasonable suspicion of them having committed an offense , or when it is reasonable considered necessary to prevent his committing an offence or fleeing after having done so: the laws relating to arrest are contained in s24 PACE and s.110 Serious organised crime and police act 2005 supplemented by code G. The police must have reasonable suspicion to consider it necessary to arrest a suspect lawfully.

Question 41

Arrest (PACE)

Answer 41

s.24 PACE states- an officer may arrest: a) anyone about to commit an offence b) anyone who is in the act of committing an offense c) reasonable grounds for suspecting someone is about to commit an offense d) reasonable grounds for suspecting someone is in the act of committing on offense

Question 42

What is the necessary criteria for arrest

Answer 42

-find out someone's name and address -to prevent them from harming themselves or others ,suffering injury, damaging property, obstructing a highway or committing an offense against public decency. -to protect a child or vulnerable person -to allow a prompt and effective investigation -to prevent the suspect disappearing.