Articles 5 & 6 Flashcards
s5(2) holds what?
Must be informed promptly of why you were detained.
FOX, CAMPBELL & HARTLEY: not told absolutely why arrested, but if you can objectively work it out then this can be circumvented.
Article 5 is not an absolute right. Under what circumstances can it be derrogated?
5(1)(c): legal arrest.
JOHNSON v UK: halfway house facilities breached.
FOX, CAMPBELL & HARTLEY: added in the word ‘reasonable’ before suspicion.
W v DONCASTER: conditional release & re-detain: no breach.
SAADI: asylum seekers cannot be detained for excessive time.
s5(4) holds what?
That one can challenge the lawfulness of the action.
HIRST: reviews too sporadic.
T&V: H/S cannot decide tariff.
s5(3) holds what?
Must be brought promptly before a judge.
BROGAN v UK: 4 days too long.
How have states tried to derogate from article 5 using control orders?
RE JJ: held to be a breach.
SSHD v E: distinguished JJ; degree of constraint was not a breach, could leave for 12 hours a day.
SSHD v AP: breached because too far from family.
Now replaced with T-PIMS.
What statutory provisions impact upon article 5?
Arrests must be made using PACE:
s37(2): power to reasonably detain to secure or preserve evidence.
Length of detention: 24 hours supervised, 36 by a court; 96; charge or release.
SOCP: S24: Arrests can be made if: FAILURE TO GIVE NAME AND ADDRESS; TO PROTECT A CHILD/INJURY.
TERRORISM ACT: s40 defines terrorism.
s41(1): can arrest if reasonably suspect.
s41: 7 day detention after arrest; in reality 48 hours: BROGAN v UK: must be authorised by magistrates.
Article 6 is a limited right that can be brought on which grounds?
6(1): independence and impartiality.
6(1) & (3): legal process.
6(3)(c): legal assistance.
s6(1) states that article 6 is engaged if there is a lack of independence and impartiality in the trial process; give case law examples.
BEESON v DORSET: BIAS.
MCGONELL: same judge as first instance.
HM ADVOCATE v JK: 28 days too slow.
Legal process infringement can engage article 6 in what ways?
BENHAM: sentence too long.
MURRAY: denied lawyer.
R v A: admissibility of evidence is a matter for the trial judge.
BRENNAN: police officer watching meeting with solicitor.
HORNCASTLE: not every witness need be cross examined.
For how long can a superintendant delay access to a solicitor?
36 hours with good reason: normally serious crime ring.
48 hours if terrorism.
How does the right to remain silent impact upon article 6 claims?
CJPO: jury can infer guilty from silence.
CONDRON: withdrawal symptoms; jury not told.
Silent until lawyer arrives is fine.
