Studied by 0 people
What does article 5 of the ECHR do?
It provides a right to liberty and security
What must happen to breach this right?
A deprivation of liberty, a restriction on liberty is not sufficient
Guzzardi v Italy
When is a person deprived of their liberty?
From Cheshire West and Chester Council v P
They are not free to leave
They are subject to continuous supervision and control
They lack the capacity to consent to the arrangements
Examples of deprivation and non deprivation of liberty
Deprivation
Guzzardi v Italy - lots of things deprive his freedom, including a lack of space, a requirement to report to authorities, a curfew
SSHD v JJ - 18 hour curfew, visitors authorised, limits on movement
Non-deprivation
SSHD v E - 12 hour curfew, in his home with his family, no restrictions on who he met or where he went
When can a person’s article 5 rights be denied liberty?
When one of the exceptions are met
Section 5(1)(a) and 5(1)(f)
What is the article 5(1)(a) exception?
The lawful detention of a person after conviction by a competent court, related to the conviction (Stafford v UK).
What is the article 5(1)(b) exception?
The lawful detention of a person for non-compliance with a lawful order; ensures a person's detention is under legal authority
Non-payment of council tax or breach of bail conditions
Procedure prescribed by PACE
What is the article 5(1)(c) exception?
Enables the arrest of those suspected of an offence, needs to be a reasonable belief (honest belief is not enough)
Procedure prescribed by PACE
What is the article 5 (1)(d) exception?
The 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
Procedure prescribed by PACE
What is the article 5(1)(e) exception?
It allows for the lawful detention of individuals of unsound mind, if they pose a danger to themselves or others, under a lawful procedure.
Prevention of spreading infectious diseases, alcoholics, drug addicts or vagrants
What is the article 5(1)(f) expection?
Lawful arrest or detention of a person to prevent his effective unauthorised entry into the country
detaining asylum seekers whilst dealing with application is compatible
Safeguards in article 5
Article 5(2) to Article 5(5)
What is the article 5(2) safeguard?
It ensures that everyone who is arrested is informed promptly, in a language they understand, of the reasons for their arrest.
It need not be immediate, but prompt (7 hour delay has been deemed acceptable)
So the person knows how to defend it court
What is the article 5(3) safeguard?
Everyone who is detained should be brought promptly before a judge or a judicial officer and shall be entitled to a trial within a reasonable time or to release pending trial
Promptly - interpreted on a case-by-case basis - 4 days is the maximum time (McKay v UK)
Judge or another officer - must be independent and not involved in the case
A reasonable time or to release pending trial - a presumption of bail which gets stronger the longer the detention - if bail is denied the court must explain why - time starts when D is first remanded in custody and ends when the court gives a judgement
What is the article 5(4) safeguard?
A detained person has the right for the lawfulness of their detention to be decided speedily by a court and his release ordered if it’s not
a positive obligation on the state
Continuous detention must be continually reviewed (Stafford v UK) - circumstances may change (drug problems get better)
Whole life orders do not infringe on article 5
Speedily is context specific - a standard 3month wait is not speedy
What is the article 5(5) safeguard?
Everyone who has been the victim of arrest or detention in contravention of this article shall have enforceable rights to compensation
those who have a right violates are entitled to compensation
This is mandatory
Note 
Flashcard (196)