human rights- article 5 Flashcards
(21 cards)
what does article 5 do?
. article places a positive obligation on the state to ensure where detention happens, safeguards are put in place
> all people have right not to be detained arbitrarily by the state
what must happen to breach the right?
. it must be more than just a restriction of liberty- a deprivation must be more
how does a deprivation of liberty happen?
. Gizzard v Italy> a question of degree + intensity of the restriction placed on individual
. Cheshire West and Chester Council v P, UKSC- ‘a glided cage is still a cage’, deprivation where person is:
- not free to leave
- subject to continuous/ complete supervision + control
- they lack the capacity to consent to the arrangements
examples of deprivation
. Guzzardi v Italy- a man, under suspicion of being in mafia> placed on remote island- had 2.5k space, report to authorities 2x day, curfew between 10pm-7am, not to go in nightclubs + lead an honest + law-abiding life
. SSHD v JJ- C subjected to 18-hour curfew, authorised visitors during 6 hours permitted to leave house + limits on movement
non deprivation examples
. SSHD v E- a control order that subjected the C to a 12 hour curfew, in his home with family, with no restrictions on who he met or where he went outside these times
5(1)(a)
. the lawful detention of a person after conviction by a component court
. detention must be in relation to the conviction- Stafford v UK
5(1)(b)
. the lawful arrest/detention of a person for non-compliance with the lawful order of court
. or in order to secure the fulfilment of any obligations prescribed by law
. obligations includes non-payment of council tax or breach of bail conditions
. procedure described in Police and Criminal Evidence Act 1984
5(1)(c)
. enables arrest of those suspected of an offence
. honest belief is not enough for 5(1)(c) to apply- Fox, Campbell and Hartley v UK
. procedures prescribed by PACE 1984
5(1)(d)
. detention of a minor by lawful order for the purpose of educational supervision or is lawful detention for the purpose of bringing him to the competent legal authority
. the procedures are descried in PACE 1984
5(1)(e)
. lawful detention of persons for the prevention of spreading infectious diseases, of persons of unsound mind, alcoholics/ drug users or vagrants
. enables detention of persons listed
. apply to the measures in Covid lockdown
. detention for a person with autism was unlawful- HL v UK 2004
. power contained within s45 Public Health (Control of Diseases) Act 1984- pandemic regulations
. procedures are prescribed by PACE 1984
5(1)(f)
. the lawful arrest/detention of a person to prevent his effective authorised entry into the country
. or of a person against whom action is being taken with a view to deportation or extradition
. detaining asylum seekers whilst dealing with applications is compatible if quick process- Saadi v UK
. procedures prescribed in PACE 1984
5(2)
. a person who is arrested should be given the reason for their arrest promptly
. mainly covered by PACE 1984
. reasons don’t need to be given immediately but must be promptly
. a 7 hour delay has been acceptable- Fox, Campbell and Hartley v UK
. those arrested should be informed of the arrest at the time or as soon as reasonably practical- s28 PACE 1984
5(3)
. everyone detained should be brought promptly before a judge or judicial officer
. shall be entitled to a trial within a reasonable time or to release pending trial
5(3)- promptly
. interpreted on case-by-case basis
. suspected terrorist had to wait 4 days, 6 hours> not prompt- Brogan. v UK
. 4 days is max time- McKay v UK
5(3)- judge or another officer
. must be independent + not involved in the case
5(3)- a reasonable time or to release pending trial
. a presumption of bail which gets stronger, the longer the detention
. if bail denied> courts must explain why
. time starts when D is first remanded in custody + ends when court gives a judgement
. what’s reasonable depends on the circumstances of the case, including the severity of the charge
5(4)
. detained person has the right for the lawfulness of their detention to be decided speedily by a court + his release to be ordered if it’s not
. a positive obligation on the state
. continuous detention must be continually reviewed- Stafford v UK
. whole life orders don’t infringe on article 5 if it’s subject to regular review- Vinter and Others v UK
. the Parole Board review prison sentences
5(4)- speedily is context specific
. a standard 3 month wait is not speedy- R v Secretary of Home Department
. where there are procedural delays in deciding if a prisoner can be released, this may be a breach- James v UK
5(5)
. if victim of arrest/detention in contravention of this article> shall have enforceable rights of compensation
. those who have a right violated are entitled to compensation
. this is mandatory
. unlikely compensation will be awarded for feelings of disappointment or frustration
. actual financial losses caused by the detention can be recovered
evaluation- article 5 is one of most breached rights across Council of Europe
.between 1959-2009, the UK breached this right 70 times
. UK violated right so infrequently over 50 years shows it doesn’t place unfair burden on the state
. suggests the domestic law has been able to effectively protect HR (very few cases reached ECHR)
: in current socio-economic context, its arguable whether all countries have the same public infrastructure to facilitate the need for speed in article 5 – especially article 5(1)(f) (in relation to Asylum seekers) and the requirement set out in Saadi
- and Russia (one of highest breaching states) was removed from Council go Europe following Ukraine war> ECHR has no enforceability if states leave or are expelled
evaluation-state is able to derogate meaning individual circumstances of nations can be taken into account
. done in the UK during times of Troubles NI
. means wider public protection, which is one of main duties of state
. also means serious criminals (eg. terrorists) cannot use HR law to limit authority’s ability to enforce law
