Article 5

Question 1

What is protected under article 5 of the HRA?

Answer 1

Liberty and security of a person

Question 2

What classes as a deprivation of liberty?

Answer 2

Excessive time- Breach (Ammur v France)
Kettling- Not breach (Austin v UK)

RESTRICTION OF MOVEMENT NOT ENOUGH- MUST BE VALID REASON FOR DEPRIVATION.

Question 3

Two questions to consider when decided whether article 5 is engaged?

Answer 3

Has the individual been deprived of their liberty?

If so, was the deprivation “in accordance with a procedure prescribed by law”? (Art 5(1)

(Guzzardi v Italy)

Question 4

What lawful grounds for deprivation of liberty are set out in Article 5(1)?

Answer 4

Lawful detention after conviction by a competent court

(b) Lawful arrest/detention for non-compliance with a lawful order or to secure the fulfilment of any obligation prescribed by law

(c) Arrest/detention for the purpose of bringing the person before the competent legal authority on reasonable suspicion of having committed an offence

Mental Health Act 1983: governs detention for mental disorder

Mental Capacity Act 2005 + DoLS: protects liberty for those lacking capacity

Question 5

What examples fall under article 5 (1)(b) and 5(1)(c)

Answer 5

5(1)(b):

Breach of court order

Prevent breach of the peace (e.g. kettling)

Contempt of court / police disobedience

5(1)(c):

Arrest to prevent crime

Stop and search

Arrest with or without a warrant to prevent fleeing

Question 6

What are the positive and negative obligations under Article 5?

Answer 6

Negative obligation: The state must not unlawfully deprive liberty

Positive obligation: The state must take appropriate steps to safeguard individuals against arbitrary detention through law and review mechanisms

Question 7

What does Article 5(2) require when someone is arrested?

Answer 7

“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” – Article 5(2)

PACE 1984: Requires immediate explanation of grounds for arrest and access to legal counil.

Question 8

What procedural safeguards must be followed under Article 5?

Answer 8

Detention must follow “a procedure prescribed by law”

Court must be independent, competent and impartial

Sentencing must not be arbitrary

(Fox, campbell and Hartley v UK)

Question 9

What remedies are available under the Human Rights Act 1998 for a breach of Article 5

Answer 9

Section 7 HRA: Individuals can bring a claim for breach of Article 5

Section 8 HRA: Courts can grant “just satisfaction” (damages)

Section 3 HRA: Laws must be interpreted in a Convention-compliant way