Article 5

Question 1

What right does article 5 protect?

Answer 1

The right to liberty and security of person (right to not have liberty deprived by state unless to achieve legitimate aim)

Question 2

Define the key terms of the right
(HINT* dep, lib, sec)

Answer 2

• Deprivation = detained for any period, against your will, by the state (Guzzardi v Italy)
• Liberty = to go freely about your business
• Security of person = cannot have liberty removed without just cause

Question 3

What 8 circumstances constitute a deprivation of liberty?

Answer 3

• Arrest
• Stop and search
• Detention
• Keeping someone in care
• Kettling
• Imprisonment
• Secure institutions/hospitals
• Control orders

Question 4

Explain the law on keeping someone in care

Answer 4

• Cheshire West (backed by Lady Hale) established rights of people in care
• Disabled people have the same rights to liberty
• Detention must be regularly reviewed (detention means not allowed to leave: HR v UK, JE v DE)
• Must follow due process
• Consider degree/nature (Guzzardi v Italy, Hillingdon LBC v Neary)

Question 5

Explain the law on kettling

Answer 5

• Police hold group in fear of breach of the peace
• Legal if in good faith, proportionate and not longer than necessary (Austin)
• Lawful if breach is imminent and kettling is to prevent violence (Moos)
• Filming is illegal (Mangesha)

Question 6

Explain the law on imprisonment

Answer 6

• ECtHR still disapproves but states WLO’s must be reviewed regularly (Vinter v UK)
• Must be able to meet conditions for potential release (James v UK)

Question 7

Explain the law on secure institutions/hospitals

Answer 7

• Detained under the Mental Health Act 1983
• Deprivation means constant and continuous supervision (HL v UK)

Question 8

Explain the law on control orders

Answer 8

• TPIM’s (terrorism prevention and investigation measures)
  –> Tagging + overnight residency restrictions
  –> Association restrictions + foreign travel bans
  –> Cannot exceed 2 years
• Cannot hold indefinitely without charge (A+oth v UK)
• Cannot be too strict (Guzzardi v Italy, JJ v Sec of State, E v Sec of State)

Question 9

What are the 6 exceptions allowing the state to deprive liberty under Art 5(1)?

Answer 9

• a) Conviction be a competent Ct
• b) Breach of Ct orders
• c) Detention in order to bring before Ct
• d) Educational purposes
• e) Prevent the spread of infectious disease, people of unsound mind, vagrants, addicts
• f) Prevent entry into a country/lawful deportation

Question 10

What are the 4 conditions of depriving liberty the state must satisfy?

Answer 10

• 5(2) Inform promptly, reason for deprivation (in understood language)
• 5(3) Brought promptly before judge (Brogan)
• 5(4) Speedy trial to determine guilty and lawfulness of detention (Stafford)
• 5(5) Compensation for infringement of right

Question 11

Evaluate Article 5

Answer 11

• Broad scope = favour state/public body
• Uncertainty = on stop and search/police powers
• Kettling = no statutory authority, based on fear of offence not actual offence, contradicts fair labelling
• WLO = breaches Art 5
• UK prison pop = largest prison pop per capita means most deprivation of liberty
• Reduced protection = reduced definition of deprivation under Guzzardi v Italy
• Outdates = discriminatory (vagrants, unsound mind)
• Contradictions = detain unsound mind yet disabled have same rights to liberty
• Protects public = allows for derogation in times of national emergency
• TPIM’s = deprives of liberty people not convicted of a crime, breaches detention of asylum seekers for reasonable time
• Balance competing interests = between state protecting society and individuals rights (though often favours state)
• Minimum intervention = PACE 1984, fair on individuals, prevent arbitrary state power
• Common law = favours police but allows for flexibility