ECHR Art 5 Notes - Art 5 PDF

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ECHR Art 5 Notes What does Article 5(1) stipulate? - "Everyone has the right to liberty and security of person." What are the exceptions to rights under Article 5(1) set out in Article 5(1)? - (a) The lawful detention of a person after conviction by a competent court; (b) The lawful arrest of a person for non-compliance with an obligation prescribed by the law; (c) The lawful arrest effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of them having committed an offence; (d) The detention of a minor by lawful order for the purpose of educational supervision or for the purpose of bringing him before the competent legal authority on reasonable suspicion of them having committing an offence; (e) The lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) The lawful arrest of someone entering the country illegally or of a person to be deported or extradited. Article 5(2) of the ECHR states that: ??? - "Everyone who is arrested shall be informed, in a language which he or she understands, of the reasons for his arrest and of any charge against him". Article 5(3) of the ECHR states that everyone has the: ??? - - Right to be brought promptly before a judge or other officer authorised by the law; - Right to a release on bail, except when custody is justified; - The right to be tried within a reasonable time. Article 5(4) of the ECHR states that: ??? - Everyone who is deprived of their liberty has the right to take proceedings by which the lawfulness of their detention shall be decided speedily by a court. Article 5(5) of the ECHR states what? - Everyone who has been a victim of a violation of Article 5 is entitled to compensation. Deprivation of liberty was defined as being 'under continuous supervision and control and was not free to leave' by Lady Hale in which case? - Cheshire West and Chester Council v P (2014). Confinement does not necessarily have to mean imprisonment. Lord Hope said in this case that 'a person can be deprived of his liberty even if his departure is not prevented by a locked door'. Confinement in a police cell is the paradigm example of a deprivation of liberty. - Austin v Commissioner of Police of the Metropolis (2009). In 2005, the HOL ruled that holding terror suspects without discharge or trial was unlawful. This prompted the Control orders scheme, which allows the Home Secretary to impose an almost unlimited range of restrictions on any person suspected of involvement with terrorism without

getting permission from a judge or the courts. In January 2012, control orders were replaced with what measures? - Terrorism Prevention and Investigation Measures (TPIM). TPIM measures include what? - - Overnight residential requirements; - Electronic tagging; - Restrictions on who they can meet, where they can go and internet access; - Restrictions are limited to two years in length, although it is possible to make a new order as soon as the existing one expires. TPIM has been described as 'control order lite'. In Guzzardi v Italy (1981), a man was put under special police provision and put on the isolated island of Asinara where he was required to: ??? - - Report to the authorities twice a day and whenever called to do so; - Not return to his residence later than 10pm or leave earlier than 7am; - Not frequent bars of nightclubs; - Lead and honest and law-abiding life. What was said in Guzzardi v Italy (1981) regarding the deprivation of liberty? - ECtHR held that the restrictions amounted to a deprivation of liberty and said that the distinction between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance. In this case, controlees were subjected to 18-hour house curfews and visitors had to be authorised. The ECtHR decided these restrictions amounted to a deprivation of liberty. Secretary of State for the Home Department v JJ (2007). In this case, a person was subject to a 12-hour curfew in his home where he lived with his family. There were no geographical or physical restrictions preventing him from leaving and he could meet with whomever he wanted. This did not amount to a deprivation of liberty under Article 5 ECHR - Secretary of State for the Home Department v E (2007). Who can place control orders on anyone without judicial scrutiny? - Home Secretary. Even if it is held that the initial detention of a patient is lawful under this article, which article stipulates that the lawfulness and medical necessity of their detention must be periodically reviewed? - Article 5(1)(a), Article 5(4). Which case illustrates that the lawfulness and medical necessity of the detention of patients must be periodically reviewed? - Winterwerp v Netherlands (1979). The Deprivation of Liberty Safeguards in the Mental Health Act 2007 give extra protection here also: ??? - - One key safeguard is that the person has someone appointed with legal powers to represent them; - Care homes or hospitals must ask a local authority if they can deprive a person of their liberty;

- There are six assessments which have to take place before the deprivation of liberty can go ahead: 1. Age assessment; 2. Mental health assessment; 3. Eligibility assessment; 4. There must have been no refusals in the past (e.g. written by patient before they had the mental disorder); 5. Must be in the patient's best interests; if possible, a legal representative for the patient should be put in place; 6. Mental capacity assessment: the patient must have a mental disorder preventing them from deciding for themselves. In this case, P required a high level of care and received one-to-one close personal supervision during the daytime in order to manage risks associated with certain behaviours. This was held to be restricting his personal liberty. It was also held that disabled people should not face a tougher standard for being deprived of their liberty than non-disabled people. - Cheshire West and Chester Council v P (2014). If medical evidence suggests a particular course of action amounting to a deprivation of liberty is in fact in the best interests of the patient, it will probably not be a breach of Article 5, as demonstrated by which case? - Evans v Alder Hey Children's NHS Trust (2018). There need not be physical barriers for a patient to be deprived of their liberty, as demonstrated by which case? - J E v D E (2006). Kettling is potentially justified by what? - Article 5(1)(b). In both this case and that case, kettling was found to not be in violation of Article 5. - Austin v Commissioner of Police of the Metropolis (2009) and R (Moos) v Metropolitan Police Commissioner (2011). In this case, kettling was also found to not be in violation of Article 5, although the police filming and recording the details of those leaving the kettle zone was a breach of Article 8. - Mengesha v Metropolitan Police Commissioner (2013). The reason for kettling must be proportional to the threat, as demonstrated by which case? Austin v Commissioner of Police of the Metropolis (2009). Kettling must only be used as a last resort to stop an 'imminent breach of the peace', as demonstrated by which case? - R(Moos) v Met Police Commissioner (2011). Stop and search is possibly justified under Article 5... - Article 5(1)(c)

Under this, this and that police may stop and search anyone... - s 1 PACE 1984, s 20 CJPOA 1994 and s 44 Terrorism Act 2000. The police may stop and search anyone so long as ??? - So long as they have 'reasonable grounds for suspecting' possession of (or contained in the vehicle) stolen goods, prohibited articles, prohibited fireworks, or articles made, adapted or intended for use in burglary or criminal damage. In a stop and search, the police officer must give ??? - Their name, office, station and the reason for the stop and search. If the search is in public, they can only remove these clothes; if the police want to remove more, they must do it out of public view. - Coat, jacket and gloves. Under the Terrorism Act 2000, police can also ask suspects to remove ??? - Shoes and headwear. The police must write what after a stop and search and the suspect must be given a copy if requested? - Written report. Code A of the Police Codes of Practice sets out that the police cannot use ??? - Personal factors or discrimination for a stop and search e.g. race, age, appearance. Exception to this is gang tattoos. Under the Terrorism Act 2000, the police have the power to stop and search if ??? - They reasonably suspect them to be involved in terrorist activities. Under this statute, police can randomly stop and search people in a particular area for up to 24 hours when they have reasonable grounds to believe that serious violence will take place there or someone there is carrying a dangerous object or offensive weapon. - s 60 CJPOA. Gillan and Quinton v UK (2010). - Stop and search is potentially a violation of Article 5, although the UK still has not accepted this. In this case, C was searched under the Terrorism Act 2000 due to protesting. The House of Lords found the procedure to be brief and harmless, so provided the detention was lawful the police could rely on the Article 5 exception. - R (Gillan) v Commissioner of Police of the Metropolis (2006). In this case, police searched Mrs Roberts after she tried to evade a bus ticket or provide her real name, leading police to suspect she was carrying an offensive weapon. Like in R (Gillan) v Commissioner of the Metropolis (2006) the procedure was considered by the court to be short and did not deprive her of liberty and so was ruled to be lawful. - R (Roberts) v Commissioner of Police of the Metropolis (2012).

In this case, the applicant was detained on his way to a demonstration. The applicant did not commit any offence. The government claimed he was arrested in order to prevent him from suspected terrorism. He was threatened into going to the police station. The applicant complained that this amounted to deprivation of liberty. The court held that this arbitrary arrest was in violation of Article 5(1) because of the use of coercion. - Shimovolos v Russia (2011). All arrests are justified under ??? - Article 5(1)(c). All arrests are justified under Article 5(1)(c), even where the arrest does not end in charges, as demonstrated by which case? - Hicks v Met Police (2017). Where is the law on arrest set out? - Under s 24 PACE 1984 as amended by the Serious Organised Crime and Police Act 2005, and also Code G. During arrest, the police officer must ??? - Know or reasonably suspect that the person has committed, is committing or is about to commit an offence. During arrest, the police must also justify ??? - Why it is necessary to arrest the person (the 'necessity test'). Code G states that ??? - They must inform the person they are being arrested. The arrested must be told in simple, non-technical language they can understand the legal and factual grounds for their arrest (A5(2)), as demonstrated by which case? - Taylor v CC Thames Valley Police (2004). If the arrested are not given a reason for the arrest, the arrest is unlawful, as demonstrated by which case? - Christie v Leachinsky (1947). Under this statute, where necessary, the police may use reasonable force to apprehend a suspect. - s 117 PACE 1984. In this case, a claim was made that officers had wrongfully arrested and imprisoned the claimant, as he was 10 at the time and could not understand the technical language. The court decided he had been told about his arrest in a proper way, however the delay in interviewing the boy was too long. - Taylor v CC Thames Valley Police (2004). In this case, two brothers were arrested in the USA on suspicion of supplying weapons to the IRA. The sister of the brothers, Margaret Murray, was arrested based on her relation to the brothers and not genuine suspicion. She was released after 2 hours of questioning. This amounted to an unlawful deprivation of liberty. - Murray v UK (1994). Coercion case for arrest and stop and search. - Shimovolos v Russia (2011).

Under this statute, the general rule is a suspect must be charged or released after 24 hours. A senior officer may take 36 hours. 96 hours may be allowed if authorised by a Magistrate. - PACE 1984 Code C. For terrorism offences, under the Terrorism Act 2000, the police can gain up to how many days from a judge? - 14 days. This statute states the suspect has the right to be informed of their detention (Brogan). - s 56 PACE. This statute states that the suspect has the right to legal advice of their choice. - s 58 PACE. This case stressed that delay to legal advice is only allowed where the police have strong reason to believe that the solicitor involved will alert others involved in the offence. - R v Samuel (1988). If the suspect is under 17 in an interview, then ??? - Then parents must be informed and interviews must have either parent or appropriate adult present to support suspect. Code C states cells must be adequately ??? - Heated, lit, cleaned and ventilated; Suspects should be given what upon request. in custody? - One main and two light meals in any 24 hours with drinks upon reasonable request; Suspect must be given how long to rest in custody? - 8 hours. Suspects must be allowed to consult what in custody? - Code C. 24 hours in custody: after the first ??? and then ??? intervals after, custody must be reviewed by custody officer. - 6 hours, 9-hour. In this case, D was arrested on suspicion of robbery and was denied a solicitor thanks to the ability of police to deny it if they believe the solicitor could alert other suspects, and if he had not yet been charged with a crime. By the 4th interview he had confessed and was charged, but the solicitor was still barred. The court ruled this action, as well as the former suspicion, being too flimsy to deny a solicitor, meant the final interview shouldn't have taken place and the convictions were quashed. - R v Samuel (1988). In this case, C was detained for 6 days without charge; this was a violation of Article 5(3). Brogan v UK (1988). In this case, it was held that a 3-month wait for a parole hearing violated Article 5(4). - R v SS Home Dep. ex parte Noorkoiy (2002)....