Article 5 – Right to Liberty and Security (deprivation of liberty) Flashcards
booklet 4 (40 cards)
is this a limited right
yes
in what situations can this right be restricted (4)
Arrest, detention or stop and search on suspicion of having committed an offence.
Imprisonment following conviction
Hospital orders
Crowd control situations
what is a case to back this
Austin v Commissioner of Police of the Metropolis (2009)
what does this case state
Being locked up in prison is not the only way to have the right to liberty restricted – there does not need to be a locked door
in order for there to be a breach of article (3)
Deprivation of liberty
Which does not fall within the exceptions
And does not come under a lawful procedure
how many sections are there for a deprivation of liberty
6 (a-f)
what is a deprivation of liberty
Taking away someone’s freedom to do the things they want and to live where they want.
what 3 cases define a deprivation of liberty
Engel v Netherlands 1979
Guzzardi v Italy 1981
Cheshire West v P 2014
what does Engel v Netherlands 1979 state
Liberty means ‘individual liberty in the classic sense’ meaning physical freedom
Not concerned with broader ideas with liberty like personal autonomy
what does Guzzardi v Italy 1981 state
There is a distinction between a ‘deprivation’ (which is potentially a breach) and ‘restriction’
Based upon the ‘degree and intensity’ of the restrictions, based on the type, duration and effects
what does Cheshire West v P 2014 state
The key test is whether the individual is ‘under continuous supervision and control and not free to leave’
Not based on the level of comfort in living conditions
what is the concept of deprivation
if someone if going to be kept under continuous supervision and control and is not free to leave, this needs to be authorised in a procedure prescribed by law.
what are 2 cases that back this
HL v UK 2005
HM v Switzerland 2004
what does the case of HL v UK 2005 state
Informational hospitalisation of a complaint but incapacitated adult is a deprivation of liberty
The “compliant” bit relates to the fact they didn’t fight the hospitalisation, and the “incapacitated” bit means they might not have been able to fight it as they maybe weren’t conscious – so it is basically saying if someone is hospitalised and they don’t fight it because they couldn’t then this will be a deprivation of liberty.
what was the case of HM v Switzerland 2004
Deprivation of liberty (but this was allowed under one the exceptions due to the poor living conditions and improper care in her actual home)
Elderly woman in Switzerland taken to care home against her will
is indefinite detention allowed
no
what 2 cases tell us this
a and others v uk 2009
james v uk 2012
what does the case of a and others v uk 2009 tell us
cannot be locked up indefinitely without charge
what does the case of james v uk 2012 tell us
We cannot be detained forever without the proper chance of release
what are the 3 exceptional situations
Kettling
Use of Control Orders and TPIM’s
Care Situations
what is kettling
practice used by the police as a method of crowd control usually used during protests or sporting events to stop violence
what is a case to describe this
Austin v UK
what happened in this case
Four applicants were held in a ‘kettle’ after anti-globalization protests in Oxford Circus, London, three of whom were non-protestors who were shopping or on lunch breaks
Held kettling was not a deprivation of liberty here but only due to the specific and exceptional circumstances of the case
what should future courts consider (5 points)
The type and manner of the deprivation
The context
Whether threat of violence is imminent
Should only be used when all other options exhausted (used up)
It should not be used to stifle discourage protest
