Article 5 - Liberty and security of person

Article 5.1

Everyone has the right to liberty and security of person, no-one shall be deprived of his liberty save for 5.1(a), (b) or (c)

5.1(a)

The lawful detention of a person after conviction by a competent court

5.1(b)

The lawful arrest or detention of a person for non-compliance with a court order or order to secure the fulfilment of any obligation prescribed by law

5.1(c)

the lawful arrest or detention of a person for the the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonable considered necessary to prevent his committing of an offence or fleeing after having done it

5.2

Everyone who is arrested shall be informed promptly, in a language he understands, of the reasons for his arrest and of any charge against him

5.3

Everyone arrested or detained in accordance with 5.1(c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power, and shall be entitled to a trial within a reasonable time or to release pending trial, release may be conditioned by guarantees to appear for trial

5.4

Everyone who is deprived of his liberty by arrest or detention should be entitled to take proceedings by which the lawfulness of his detention should be decided speedily by a court and his release ordered if the detention is not lawful

5.5

Everyone who has been the victim of an arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation

The meaning of ‘deprivation of liberty’

If there is no deprivation, there is no claim. Restrictions on liberty do not always amount to a deprivation.
HM v Switzerland - for there to be a deprivation it is a question of degree and intensity, not nature and substance, the specific situation of the individual and factors such as the type, duration and manner of implementation of the measure must be considered
HL v UK - there was a deprivation as HL was under continuous supervision and control and was not able to leave the hospital
Guzzard v Italy - being confined to an island was a deprivation, being confined to an extremely small area with constant supervision and no social contact were significant factors to consider
Austin v UK - a person can be deprived even if his departure is not prevented by a locked door or other physical barrier and even if he is allowed extensive social and other contact with the outside world

English law and the right to liberty

Habeas corpus may be relied upon, in Evans and another v Alder there was no deprivation

Restrictions on the right to liberty: 5.1(a)

Thompson and Venables v UK - lawful detention after conviction must be passed by a court not a home secretary
Strafford v UK - continued detention after a conviction must be linked to the conviction and cannot be arbitrary

Restrictions on the right to liberty: 5.1(b)

A lawful order of a court may include: arrest under a warrant, contempt of court, breach of bail, breach of matrimonial order, psychiatric confinement order
Any obligation prescribed by law may include: maintaining public order for the protection of hte public, dealing with breach of the peace, stop a person speeding, detaining to administer the criminal law
Ostendorf v Germany - no deprivation as C was made aware of specific act to refrain from doing and he did it

Restrictions on the right to liberty: 5.1(c), stop and search

Under sections 1 and 2 of the Police and Criminal Evidence Act (PACE), police have the power to stop and search if they have reasonable grounds for suspecting they will find stolen items or prohibited items such as an offensive weapon or articles adapted/used for criminal offences
Reasonable grounds must exist before the suspect is stopped and is based on some intelligence, not the officer’s opinion or suspect’s behaviour

Restrictions on the right to liberty: 5.1(c), what is an arrest

An arrest is not defined under PACE however there are three main parts:
Submission by the arrested person to the police, or some physical restraint to enforce the arrest,
Officer must clearly show that he is arresting the offender as soon as practicable,
The officer must make the grounds for the arrest clear

Restrictions on the right to liberty: 5.1(c), breach of the peace

R v Howell - where there is an anticipated breach of the peace the power of arrest should only be used where there us a sufficiently serious and imminent threat, an arresting officer must identify what a breach of the peace is and that it has taken place or is imminent
Austin v UK - kettling may be used to ensure a crowd are safely dispersed
R(on the application of Hicks) v CoPftM - four people were arrested in separate incidents in various locations in London on Prince William and Kate’s wedding day to prevent a breach of the peace, they were released without charge once the wedding was over, no breach

Restrictions on the right to liberty: Arrests with/without warrents

An arrest can be made with a warrant, this is granted by the magistrates court so long as they are satisfied there are sufficient reasons to authorise arrest, it may also authorise the police to use force to enter and search the premises, seizing any property they suspect being there
The majority of arrests are made WITHOUT a warrant.
S.24 PACE allows an arrest without a warrant where:
there are reasonable ground for a persons involvement or suspected involvement or attempted involvement in the commission of a criminal offence and there are reasonable grounds for believing the arrest in necessary
Hayes v CC of Merseyside Police - two stage test to determine necessity:
The officer believed the arrest is necessary for one of the reasons (below) and the belief was reasonable (objective test)
Reasons for why arrest is necessary include: giving police time to check name and address of suspect, preventing suspect from causing or suffering injury or damage to property, allowing effective investigation of an offence, preventing person from disappearing

Restrictions on the right to liberty: 5.1(c), arrest procedure

S.28 PACE states on making an arrest the police must follow proper procedure,
including identifying themselves as police officers,
Informing the person that they are under arrest in a language they understand (5.2) (Adler v CPS, the words ‘I am arresting you’ do not need to be used provided there is enough evidence that an arrest has been made)
Informing the person they are under arrest can be up to 7 hours after the arrest to allow for further inquiries and preparing for an interview (Fox, Campbell and Hartley v UK)
Issue the caution
State the grounds of arrest and why it is necessary (Murphy v Oxford, arrest was unlawful as despite telling offender he was arrested on suspicion of burglary, the date, time or that it was burglary of a hotel were not stated making it too vague

Restrictions on the right to liberty: Rights at the police station one detained

A custody officer is responsible for the welfare of a suspect while they are in detention, they will check the officer understands the reasons for arrest and arrange for an interpreter or suitable adult to ensure the arrested person is aware of his situation and rights while in custody
CJPA allows police to retain DNA samples on a database for those convicted (offenders). Only those convicted of an offence will have their fingerprint records and DNA smaples retained indefinitely (Protection of Freedoms Act) (S and Marper v UK)
Non-intimate samples can be taken without consent if the subject has been charged (fingerprints, head hair samples, mouth swab)
Intimate samples cannot be taken without consent but a court may be informed of any refusal of consent (semen, urine)
Time limits - article 5.3, an arrested person must be brought to trial, bailed to appear at trial, or released within a reasonable crime
A person is entitled to legal advice while detain, PACE limits the period of time a suspect can be detained, without charge it is 24 hours, but can be extended up to a total of 36 hours. A court may extend the time to 96 hours and in cases involving terrorism suspects can be held for up to 14 days if a court grants so.
Bail will usually be granted when the offence is a non-imprisonable one, bail may be conditional (e.g. having to report to station weekly/bi-weekly, must reside at a certain address, prevention of movement) or unconditional. If bail is refused the individual must be brought before the Magistrates at the next sitting, if it is provided a set date and time will be given to attend court, if they do not a custodial sentence for contempt of court ay be imposed and bail will be revoked until the end of the trial.