Article 5 A03 Flashcards
(15 cards)
What are the 4 WDPs for Article 5
Limited Right (intro)
Derogation
Deprivation
Kettling
Mentally incapacitated
+P1:Very difficult to interfere…
only done for national security issues so justified in protecting Article 5 as a fundamental right - prevents arbitrary detentions
+DP1: A and Ors v Uk
illustrated how the UK respects and upholds Article 5 seeing the violation in this case disproportionate
+WDP1: Very restrictive ensuring Article 5 is upheld even….
with national security issues - each individuals fundamental right to liberty and security is upheld regardless of it being national security = fair
+P2: deprivation protects the rights of the public as it is decided on a cases by cases basis
Guzzardi v Italy confirmed the court has discretion determining between restriction and deprivation = flexible and accommodating
-DP2: Lack of guidance on
what constitutes deprivation = uncertainty and ineffective protection
+WDP2: clarified in Cheshire West v P
‘continuous control and not free to leave’ provider a clearer objective standard → gives further protection
-P3: Kettling is very controversial and heavily criticised as
failing to protect individuals expressing their Article 11 right of assembly, law is confusing as Austin v UK has allowed kettling despite not being in a-f
+DP3: R(Moos) v Met Police has tried to
protect individuals by restricting police’ use of kettling - only as a last resort which upholds art 5
+WDP3: Mengesha v Met Police also tightened police powers regarding kettling,
with forcing protestors to give their name and be photographed violated Art 5 which shows how the law is ensuring the police doesn’t have excessive power
+P4: Winterwerp v Netherlandsset out clear guidelines requiring that the detention of mentally incapacitated individuals must be…
lawful, supported byobjective medical evidence, and includeprocedural safeguards, helping to preventarbitrary confinementand upholdArticle 5
+DP4: Cheshire West v Pstressed the importance of….
regular, independent reviewsto ensure that detentions do not go unchecked, reinforcing thatdeprivation of liberty laws apply equally to all individuals, including those with mental disabilities—thereby promotingequality and fairness, upholding Article 5
-WDP4:JE v DEreinforced theobjective standard of deprivationunder Article 5 by confirming that…
relative or apparent freedomdoes not negate a deprivation of liberty, affirming that mentally incapacitated individuals are equally entitled to thefundamental right to liberty, regardless of their disabilities = Article 5 is upheld
INTRO: Limited right
protects the rights of the public from arbitrary powers of the state + effective as it limits interference to a - f
INTRO: Article 5(4)
protects the public - places a positive obligation on the state to ensure that an individual can challenge their detention upholding habeas corpus
