Article 5 ECHR AO1

What is Article 5 of the ECHR?

Everyone has the right to liberty and security. No one is to be deprived of their liberty, unless it is for one of the lawful reasons set out in Article 5(1)(a-f)

Article 5(1)(a-f)

A) after conviction

B) non-compliance with of a lawful obligation

C) reasonable suspicion of having committed an offence

D) educational supervision

E) prevention of spreading infectious diseases, a person of unsound mind

F) prevent those unlawfully entering the country

Article 5 (2):

A person would be informed promptly and in a language they understand (Taylor)

Article 5(3):

You must be brought promptly before a judge and entitled to a trial within a reasonable time (Brogan) within the remand time.

What is the maximum remand time limit?

182 days

Article 5(4):

You have the right to challenge deprivation of liberty speedily in court.

Article 5(5):

You are entitled to compensation (if breach has occurred)

TPIMs

Detention is allowed under a TPIM. Can include tagging, overnight residence requirements, restrictions on travel/who you can meet, can ban or restrict foreign travel.

How long can you can be detained under a TPIM for?

A maximum of 2 years- but can be renewed.

Under care

Detention is allowed whilst a person is under care (Winterwerp).

What does the case of Winterwerp state?

Winterwerp: it must be a medically recognised mental condition established by a medical expert and is sufficient enough to justify detention. The detention should be reviewed regularly and should only last for the duration of the disorder.

(Section 7 Mental Health Act 1983)

Lady Hale and the ‘Acid Test’

Cheshire West: Lady Hale created the Acid Test to decipher whether someone is being detained against their rights…

‘Is the person under continuous supervision and control and not free to leave?’

What does deprivation depend on?

Deprivation depends on circumstances and a matter of ‘degree and intensity.’

Kettling and Article 5?

Kettling can only be used as a last resort when violence is imminent.

It must be proportionate and necessary.

Can’t be enforced longer than is necessary (Austin/Moo)