article 5 Flashcards
(15 cards)
general principle
protects idnivual liberty
article 5/1=
no one should be deprived of liberty unless in accordacnce with lawful procedures
meaning of liberty and deprivation.
engel v netherlands = liberty means physical liberty of the person
general test to see what constitutes a dep of liberty
- reasonable person thinks lib is restricted
- no consent to detention
- detention is state created
key factors
degree and intensity of restriction
case laws examples of deprivation
Cheshire wett v p
acid test
continuous supervision and not free to leave
lawful grounds for dep under art 5/1/a-f
a- after conviction of competent court
b- non compliant of lawful obligation
c- suspicion of committing offence
d- detention of a minor ( ed or court ap)
e- public health / unsound mind
winterwerp v Netherlands - unsound mind test
- must be of unsound mind
- detention must be necessary
- disorder must be persist
- ( therapeutic environment needed)
f- detention of illegal immigration , deportation or extradition
art 5/2
right to be informed promptly
must be told PROMPTLY the reason for arrest
fox = 7 hours delay = acceptable
art 5/3
must be brought promptly before. a judge
brogan = 4 days 6 hours = not prompt
presumption of bail unless given reason
article 5/4
right to challenge lawfulness of detention
James v uk
failure to give opportunity for release = breach
delays in parole = breach
article 5/5
right to compensation
available for unlawful detention
examples where art 5 may be breached
children and parental control - excessive restriction
mental health act 1983
section 7
can legally detain mentally unwell ppl
must follow strict safeguarding rules
police powers and art 5
kettling
not a breach if
proportionate
done in good faith
aimed at preventing violence
stop and search
pace 1984
reasonable suspicion needed to stop and search
suspicion must happen before stop
must explain why, and follow GOWISELY
grounds
object of search
warrant card
id
station
entitelemt to copy
legal power
you’re being detained for search
osman = breach for not giving id/station
outer clothes only , inner = needs station
special stop and search
s60 - crim justice and public order act 1994
allowed to s/s anyone in certain area even w/o suspicion
only allowed if police believe serious violence might’ve occurred
s44- terroism act 2000
randomly stop anyone in specific area during terrorism alert
arrest - pace
s24- allowed to arrest w/o warrant if
committing/ abt to commit or have committed serious crime
s28 -
must tell u ur being arrested
and why
if not , count as file improsionment
reasonable force
can be used only whats necessary
after arrest
s56 - right to tell someone you’ve been arrested ( Samuel )
s58-right to speak to solicitor
code c- must be checked by custody officer
