Article 5: Right to Liberty and Security

Definition of Liberty and Deprivation

Liberty - physical freedom - not social or political autonomy (Engel v Netherlands)

Deprivation - depends on degree and intensity of restrictions (Guzzardi v Italy)

Acid test

Continuous supervision + not free to leave = deprivation (Cheshire West)

Lady Hale (comfort)

A gilded cage is still a cage

Lord Hope (barriers)

A person can be deprived of his liberty even if his departure is not prevented by a locked door or other physical barrier and even though he may be allowed extensive social and other contact with the outside world

JJ v SSHD (2007)

Deprivation - severe restrictions and confinement (control orders)

Austin v Commissioner (2009)

No need for locked doors - social contact doesn’t remove deprivation

Article 5.1 (exceptions list)

Article	Exception	Case / Example
(a)	Detention after conviction	Stafford v UK (2002) – parole refusal unlawful
(b)	Non-compliance with court orders/legal obligations	non-payment of tax/contempt/ breach of bail
(c)	Lawful arrest for suspicion of crime	Fox, Campbell and Hartley v UK (1990) - honest belief not enough
(d)	Detention of a minor for supervision/court appearance
(e)	Detention to prevent disease spread or of “unsound mind”	HL v UK (2004) - autistic patient unlawfully detained
(f)	Immigration/deportation/extradition	Saadi v UK (2008) - asylum detention fine if quick

Article 5.2 - Prompt reasons given

• Must be told reasons promptly and in a language understood

• Set out in PACE 1984

• Fox, Campbell and Hartley (1990) - 7 hour delay acceptable

Article 5.3 - Brought promptly before a judicial officer

1. Promptly - Brogan v UK (1988) - 4 days 6 hours was too long

2. Independent judge - cannot be part of investigation

3. Reasonable time/bail - presumption strengthens as detention continues

Article 5.4 - Right to challenge lawfulness of detention

• Must have access to court and speedy decision

• Detention must be reviewed regularly

  • Stafford v UK

• Applies to both domestic law and Convention rights

• Tribunal/judge must be independent and impartial

• No need for oral hearing in every case - written review can suffice

Determinate and indeterminate sentences

• Determinate sentence - fixed so after appeals and such no right to re-review

• Indeterminate - must have periodic review as it’s a minimum sentence 

James v UK (2012)

Needed to attend rehab courses but not provided - breached 5.1/5.4/13

Vintner v UK (2013)

Whole life tariff fine if periodically reviewed

R v SSHD ex parte Noorkoiv (2002)

3 month delay was a breach after the expiry of a tariff period of a life sentence

R (KB) v MHRT (2002)

Delays in mental health hearings is a breach

Article 5.5 - Right to compensation

• Unlawful arrest/detention - right to mandatory compensation

• Covers financial loss NOT emotional distress

Control Orders and TPIMs

• A and Others v UK (2004) - detention of foreign terror suspects unlawful without trial - led to unlimited Control Orders

• TPIMs (2012) replaced them - lighter restrictions still outside criminal system

  • Can include tagging/curfew/travel bans

  • Last 2 years but renewable with new evidence

  • Don’t fit cleanly into Article 5.1 exceptions

Guzzardi v Italy (1981)

Mafia suspect confined to 2.5km island - curfew and reporting = deprivation of liberty

SSHD v JJ (2007)

18 hour curfew and strict movement limits - deprivation

SSHD v E (2007)

12 hour curfew but free movement otherwise - not deprivation

JE v DE (2006)

Dementia patient not free to leave care home - deprivation of liberty even without locks

Public Order and Kettling

Police containment tactic not in Article 5.1 - grouping people and holding them to gain peace before releasing slowly

Austin v Commissioner (2009) 

Kettling lawful if in good faith, proportionate and time limited

R (McClure and Moos) (2012)

Kettling must be last resort - only for imminent breach of peace

Mengesha v Met Police (2013)

Forced filming detainees before release unlawful breach of Article 8 (privacy)