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1Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law athe lawful detention of a person after conviction by a competent court bthe lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law cthe lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so dthe detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority ethe lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants fthe lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3Everyone arrested or detained in accordance with the provisions of paragraph 1c of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation. What constitutes a “Lawful Arrest Or Detention” • Johnson v UK 1997 – Detaining a recovered mental patient due to lack of support facilities was unlawful the state failed in its duty to provide adequate support. • Fox, Campbell Hartley v UK 1990 – Arresting someone merely on suspicion of terrorism is unlawful reasonable suspicion with recorded evidence is required. • Margaret Murray v UK 1994 – Police need only reasonable suspicion to justify an arrest, not extensive evidence. Case involved a woman arrested for suspected terrorism. • R W v Doncaster MBC 2005 – A person can lawfully remain detained under the Mental Health Act if the local authority cannot meet discharge conditions. • R Saadi v SoS for the Home Department 2002 – Shortterm detention of asylum seekers is lawful to verify their claims. • Serdar Mohammed v MoD AlWaheed v MoD 2017 – British forces could detain individuals in IraqAfghanistan beyond 96 hours for security reasons but the MoD had to provide procedural safeguards to prevent arbitrary detention. • A Local Authority v BF 2018 – An elderly man with capacity was lawfully required to stay in a care home over Christmas for his own protection, without breaching Article 5. • Re D A Child 2019 – Article 5 applied where a 1617yearold with mental disabilities was held in secure accommodation with restrictions beyond normal for his age parental consent was insufficient. • Re EM 2022 – A man lacking capacity had no meaningful participation in hearings about his accommodation. The court of Protection set minimum safeguards to ensure his rights were not infringed he must be joined to proceedings and have a litigation friend. CONTROL ORDERS Control Orders were measures introduced under the Prevention of Terrorism Act 2005 in the UK, allowing severe restrictions on individuals suspected of terrorismrelated activities, even without formal charges or a trial. They could include • Curfews e.g., up to 18 hours a day • Electronic tagging • Movement restrictions e.g., geographical limits • Communication bans e.g., internet and phone restrictions Due to controversies around potentially breaching Article 5, they were replaced in 2011 by Terrorism Prevention and Investigation Measures TPIMs, which impose fewer restrictions. Case law • Guzzardi v Italy 1980 – An 18hour curfew assigned to a Mafia suspect was breached Article 5. He was restricted to a 2.5 square kilometre area on a 50 square kilo island. ECtHR declared that in such matters, deprivation vs mere restriction of liberty depends on intensitylevel of restrictions imposed as opposed to the nature. Secretary of State for the Home Department v JJ 2007 Home Secretary imposed control orders on six Iranian and Iraqi nationals suspected of terroristrelated activity, restricting their movements to protect the public. The orders required them to • Wear electronic tags at all times. • Remain in their flats for 18 hours a day. • Allow police searches at any time. • Obtain Home Office approval for visitors and meetings. • Stay within restricted urban areas during their 6hour daily release. The HoL, applying the ECtHR’s approach in Guzzardi v Italy, ruled that Article 5 had been violated. It held that liberty is not just about imprisonment, but significant physical confinement and severe restrictions on daily life can also amount to a deprivation of liberty. • SoS v AP 2010 – Confinement 150 miles from family for 16 hours a day was a breach of Article 5. • Re JJ 2007 – Control order imposed harsher conditions than an open prison, breaching Article 5. • SoS for the Home Department v E 2007 – 12hour daily freedom with no geographical restriction did not breach Article 5. ARTICLES 52 55 Outline the procedures necessary to ensure that an arrest is lawful ARTICLE 52 The detainee must be informed promptly and clearly of the reasons for an arrest so that they can challenge them, e.g. Fox, Campbell Hartley v UK 1990. It is not necessary to provide the full reasoning at the time when the individual is arrested, provided it is given at a later stage. The reasoning may also become clear from questioning Fox, Campbell Hartley 1990. Art. 52 states that Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. ARTICLE 53 The detainee must be brought promptly before a judge so that confessions are not forced out of people by way of indefinite detention, refer to e.g. Brogan v UK 1988, in which detaining the victim without chargejudicial review for four days and six hours was held by the court to be too long. Art. 53 states that “Everyone arrested or detained in accordance with the provisions of paragraph 1c of this Article shall be brought promptly before a judge or other officer authorised by law t o exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial”. ARTICLE 54 Everyone who is deprived liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The detainee is entitled to challenge the lawfulness of his arrest, e.g. Thompson Venables v UK 1999 Two juveniles convicted of murder argued their detention lacked a fair review process because the Home Secretary, rather than an independent court, set their tariff minimum sentence. The ECtHR ruled this violated Article 54, emphasizing that a court, not a political figure, must review detention to ensure fairness and legality. Sos for the Home Department v AF 2008 HoL ruled that control orders imposed under terrorism laws were unlawful if the individual was not given sufficient disclosure of the case against them. Withholding evidence prevented them from effectively challenging their detention, violating Article 6 right to a fair trial Hirst v UK 2005 The ECtHR held that a 21month delay in reviewing a prisoner’s parole application was excessive and violated Article 54 right to a speedy review of detention. ARTICLE 55 Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation. DEROGATIONS FROM ARTICLE 5 It is possible to derogate from art. 5 under art. 15 derogation in time of emergency, but this is onlypermissible in exceptional circumstances. Refer to A Others v SoS Home Department 2004, where indefinite detention pending deportation was held by the court not to be a proportionate measure. The court made a s.4 HRA Declaration of Incompatibility DOI and did not allow the Governments attempted derogation. DOES UK LEGISLATION CONFLICT WITH ARTICLE 5 If you are given a problem question in the exam, compare the time limits below with those in the question and decide whether they appear compatible with the ECHR PACE TIME LIMIT Sections 41 44 Police and Criminal Evidence Act 1984 The limit to detention without charge is generally 24 hours s. 417 PACE. Beyond this up to 36 hours of detention must be authorised by a Superintendent or higher ranking officer s. 421 PACE. Beyond 36 hours, continuing detention must be authorised by a Magistrates court s. 43 PACE. Up to an absolute maximum of 96 hours to hold someone before charge or release s. 443b PACE. Sections 2325 Terrorism Act 2000 TA A person detained under the TA may be held without charge for up to 48 hours s. 413 TA. A senior judge can extend this period up to 7 days para. 293, Sch. 8 TA. This can be further extended for up to another 7 days, up to an absolute maximum of 14 days detention without charge Sch. 8 TA s. 57 Protection of Freedoms Act 2012. POLICE KETTLING Kettling is a police tactic used during demonstrations to contain large groups in a confined area, preventing them from leaving for several hours. It is intended to maintain public order but has been legally challenged as a potential breach of Article 5. Austin v UK 2012 Context Kettling used on May Day protesters. The ECtHR ruled that kettling was used as the least intrusive means to subdue protestors and thus, did not violate Article 5 since used proportionately, in good faith, and as a necessary response to public disorder. The protestors presented a substantial risk of rioting. However, excessive or arbitrary use could be unlawful. Opposing view is that kettling did deprive liberty because • Individuals were confined in a small area with severely limited movement. • There was no access to toilets, food, or water. • The cordon was enforced indiscriminately arbitrary, affecting protesters and bystanders alike. • The police had complete control over when people could leave. Ultimately, the Court ruled in favor of the police, but case highlights thin line between restriction and deprivation of liberty under Article 5. McClure Moos v MPC 2012 Kettling a small, peaceful climate camp was held by the CoA to be proportionate because of fears demonstrators could be joined by others from a more aggressive demonstration. Lawful Deprivation of Liberty under Article 51 Article 51a–f outlines six lawful grounds for depriving an individual of liberty 1. After conviction by a competent court Article 51a. 2. To ensure compliance with a court order Article 51b. 3. Arrestdetention on reasonable suspicion of a crime, to prevent an offence, or to prevent escape Article 51c – O’Hara v UK 2002 requires objective facts for reasonable suspicion. 4. Detaining minors for educational supervision Article 51d. 5. To prevent the spread of infectious diseases or for the protection of mentally ill individuals Article 51e. 6. Detention related to asylum, deportation, or extradition Article 51f. Additional Safeguards Against Arbitrary Detention Saadi v UK 2008 For detention to be lawful, it must 1. Be carried out in good faith and closely linked to one of the Article 51 purposes. 2. Be necessary, meaning less severe alternatives must have been considered. 3. Not exceed a reasonable duration for the purpose pursued. 4. Be properly documented with clear reasons for detention. 5. Be lawful under national law, with a proportionate sentence linked to the offence Article 51a.