Article 5

Article 5

Everyone has the right to liberty and security, No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.

What type of right is this

Qualified right, can be restricted in certain, limited circumstances

Origins

• 1215 Magna Carta “No free man shall be seized or imprisoned except by the lawful judgement of his equals or by the law of the land”

• 1679 Habeas Corpus Act guarantees a judge would review imprisonment.

Engel v Netherlands

Defined ‘deprivation of liberty’ - “individual liberty in a classic sense, is to say, the physical liberty of a person. It is not concerned with the broader ideas of liberty such as the sense of personal autonomy and the lack of social subordination.

5.1(a) Stafford v UK

Detention after conviction by a competent court

5.1(b) Insulate UK

Detention of individuals who breach court orders to fail to fulfil obligations prescribed by law

5.1(c) Hicks v MPC

Lawful detention of a person…. when necessary to prevent committing of an offence

5.1(d)

Allows for the detention of a minor for educational supervision or bringing him before a competent legal authority such as a court

5.1(e)

Lawful detention… for the prevention of spreading diseases, persons of unsound mind, alcoholics and drug addicts, or vagrants

5.1(f)

Lawful detention… to stop a person unlawfully entering a country or a person subject to deportation.

5.2 Christie v Leachinsky

Prompt reason for arrest/charge, case established this as common law and now is in PACE 1984

Fox, Campbell and Hartley v UK

Case provides clarity:

• ‘reasons’ - how far do we need to explain the reason for the arrest? Full reasons should be given asap, but not necessarily at arrest.

• ‘Prompt’ - what is the time frame? Margin of appreciation is very important, and depends on context, but should be asap.

General rule: a short period necessary for practical police procedures

5.3 Brogan v UK

Right to be brought promptly before judge, to bail, and trial in reasonable time

Three parts:

1. The right to be brough promptly before a judicial officer

2. The right to be tried within reasonable time

3. The right to release on bail (with conditions perhaps), except where detention in custody is justified.

5.4 P v Cheshire West & Chester

Right to legal proceedings to challenge lawfulness of detention/arrest

Applies to all types of detention (mental health)

General rule: detention should be reviewed periodically

5.5

Right to compensation for breach. Minimal amounts of compensation, more symbolic of showing ECtHR compensation is provided.

Restriction of liberty - situations

• Control order and TPIMs

• Prison and Remand

• Care

• Hospital treatment

• Police powers: stop and search

• Public order and crowd control and ‘kettling’ cases

• Police powers: arrest and detention