Article 5 AO1
Article 5 Right to liberty and security
Definition of liberty
Liberty does not just refer to the physical sense of freedom but extends to a
person’s right to pursue their profession or other activities without the interference
of the state – Engel v Netherlands
Definition of deprivation
The meaning of deprivation is dependant on a persons circumstance, degree
and intensity of the deprivation – Guzzardi v Italy
Any deprivation must be in accordance with the national law and must not be
arbitrary – James v UK
There needs to be a connection between the original conviction and the
continued detention – Stafford v UK
Paragraph 5(1) – make sure you reference the one which is relevant to
your scenario
No one is to be deprived of their liberty unless it is for a lawful reason outlined
under Article 5(1)(a)-(f) – Winterwerp v Netherlands. These are the following:
5(1)(a) – detention as a punishment for a criminal conviction – Stafford v
UK
5(1)(b) – the lawful arrest or detention for individuals who have failed to
follow court orders or those who have broken the law, for example, breaching
bail conditions, contempt of court or for not paying taxes etc
5(1)(c) – the lawful arrest or detention in relation to individuals who are
suspected of committing an offence – Fox, Campbell and Hartley v UK
5(1)(d) – the detention of a minor for educational purposes (such as
detention after the end of a school session on disciplinary grounds without
parental consent so as long as school has made parents and carers aware of
the policy, or for the purposes of bringing them before a court
, 5(1)(e) – the detention of individuals in order to prevent the spread of
infectious diseases (such as SARS and Coronavirus – powers under the Public
Health (Control Diseases) Act 1984 and the Coronavirus Act 2020
which permitted national lockdown), and the detention of an individual of
unsound mind (reinforced by the Mental Health Act 1983 and 2007)
5(1)(f) – arrest or detention of individuals to prevent them from illegally
entering the country or those who are subject to a deportation order (such as
Julian Assange)
Those who are in care – only discuss this if relevant to your scenario
Cheshire West and Chester Council v P UKSC – this case led to Lady
Hale‘s development of the ‘acid test’ which stated that if a person is under
continuous supervision and control and is not free to leave, there is a
deprivation, even in care settings
Those who are mentally incapacitated will have the same right to liberty as
everyone else. Their detention must be necessary and there needs to be the
persistence of the mental disorder for detention to be lawful.
Even is there is relative levels of freedom does not mean that an individual
was not deprived of their freedom if they were not free to leave – JE v DE
Those who are detained in a protest (kettling) – only discuss this if
relevant to your scenario
This is when the police detain protesters for a reasonable amount of time by
surrounding them and not allowing them to leave
Kettling is lawful, however blanket kettling is unlawful
To be lawful, the following must be satisfied:
o Kettling must be done in good faith
o Kettling must be proportionate to the potential violence – Austin v UK
o The threat of violence needs to be imminent
o The police must have exhausted all other steps
o The detention must be proportionate – the degree and intensity need to
be considered to determine proportionality – in Austin v UK the
kettling of individuals for 7 hours was proportionate
Those who are suspected of terror-related activities – only discuss this if
relevant to your scenario
Terrorism Prevention and Investigation Measures (or TPIMs) are
measures which are enforced by the Home Secretary on those who are
suspected of being involved in terror-related activities.
TPIMs can involve the following:
o Electronic tagging and a requirement to stay are a specific residence
overnight
o Restrictions on who they are able to meet in person
o Ban on travel abroad
o Maximum period not extending 5 years
Paragraph 5(2)
This paragraph is only relevant for those who have been arrested due to
, committing an offence or suspicion of committing an offence
Anyone who is arrested needs to be informed promptly in a language they
understand, the reasons for their arrest and the charges that are against
them – Fox, Campbell and Hartley v UK
Paragraph 5(3)
This paragraph is relevant for those who have been arrested and detained on
suspicion of committing a criminal offence
An individual who is arrested or detained under Article 5(1)(c) of the
Convention must be brought promptly before a judge or another authorised
judicial officer. This judge or officer must then decide if the detention is lawful
and whether the person should be released while awaiting trial or kept in
custody – Brogan and Others v UK
Paragraph 5(4)
This paragraph refers to anyone who has been arrested for a crime and
anyone who has been unlawfully detained not due to having committing a
crime (such as those detained under the Mental Health Act 1983)
Anyone who is arrested or detained must have the opportunity to contest the
legality of their detention in court. This right includes having a swift
determination of the detention's lawfulness and being released if it is deemed
unlawful – Airey v Ireland and Brogan v UK.
Paragraph 5(5)
This paragraph applies to anyone who has unlawfully been deprived of their
liberty (therefore includes those unlawfully deprived due to suspicion of
having committed an offence or after having committed an offence or
detention which does not involve a crime)
Anyone who has been unlawfully detained is entitled to compensation for the
harm they have suffered. This compensation covers physical and
psychological harm, as well as financial losses and other damages resulting
from the detention – Weeks v UK.
Article 6 AO1
Article 5 Right to liberty and security
Definition of liberty
Liberty does not just refer to the physical sense of freedom but extends to a
person’s right to pursue their profession or other activities without the interference
of the state – Engel v Netherlands
Definition of deprivation
The meaning of deprivation is dependant on a persons circumstance, degree
and intensity of the deprivation – Guzzardi v Italy
Any deprivation must be in accordance with the national law and must not be
arbitrary – James v UK
There needs to be a connection between the original conviction and the
continued detention – Stafford v UK
Paragraph 5(1) – make sure you reference the one which is relevant to
your scenario
No one is to be deprived of their liberty unless it is for a lawful reason outlined
under Article 5(1)(a)-(f) – Winterwerp v Netherlands. These are the following:
5(1)(a) – detention as a punishment for a criminal conviction – Stafford v
UK
5(1)(b) – the lawful arrest or detention for individuals who have failed to
follow court orders or those who have broken the law, for example, breaching
bail conditions, contempt of court or for not paying taxes etc
5(1)(c) – the lawful arrest or detention in relation to individuals who are
suspected of committing an offence – Fox, Campbell and Hartley v UK
5(1)(d) – the detention of a minor for educational purposes (such as
detention after the end of a school session on disciplinary grounds without
parental consent so as long as school has made parents and carers aware of
the policy, or for the purposes of bringing them before a court
, 5(1)(e) – the detention of individuals in order to prevent the spread of
infectious diseases (such as SARS and Coronavirus – powers under the Public
Health (Control Diseases) Act 1984 and the Coronavirus Act 2020
which permitted national lockdown), and the detention of an individual of
unsound mind (reinforced by the Mental Health Act 1983 and 2007)
5(1)(f) – arrest or detention of individuals to prevent them from illegally
entering the country or those who are subject to a deportation order (such as
Julian Assange)
Those who are in care – only discuss this if relevant to your scenario
Cheshire West and Chester Council v P UKSC – this case led to Lady
Hale‘s development of the ‘acid test’ which stated that if a person is under
continuous supervision and control and is not free to leave, there is a
deprivation, even in care settings
Those who are mentally incapacitated will have the same right to liberty as
everyone else. Their detention must be necessary and there needs to be the
persistence of the mental disorder for detention to be lawful.
Even is there is relative levels of freedom does not mean that an individual
was not deprived of their freedom if they were not free to leave – JE v DE
Those who are detained in a protest (kettling) – only discuss this if
relevant to your scenario
This is when the police detain protesters for a reasonable amount of time by
surrounding them and not allowing them to leave
Kettling is lawful, however blanket kettling is unlawful
To be lawful, the following must be satisfied:
o Kettling must be done in good faith
o Kettling must be proportionate to the potential violence – Austin v UK
o The threat of violence needs to be imminent
o The police must have exhausted all other steps
o The detention must be proportionate – the degree and intensity need to
be considered to determine proportionality – in Austin v UK the
kettling of individuals for 7 hours was proportionate
Those who are suspected of terror-related activities – only discuss this if
relevant to your scenario
Terrorism Prevention and Investigation Measures (or TPIMs) are
measures which are enforced by the Home Secretary on those who are
suspected of being involved in terror-related activities.
TPIMs can involve the following:
o Electronic tagging and a requirement to stay are a specific residence
overnight
o Restrictions on who they are able to meet in person
o Ban on travel abroad
o Maximum period not extending 5 years
Paragraph 5(2)
This paragraph is only relevant for those who have been arrested due to
, committing an offence or suspicion of committing an offence
Anyone who is arrested needs to be informed promptly in a language they
understand, the reasons for their arrest and the charges that are against
them – Fox, Campbell and Hartley v UK
Paragraph 5(3)
This paragraph is relevant for those who have been arrested and detained on
suspicion of committing a criminal offence
An individual who is arrested or detained under Article 5(1)(c) of the
Convention must be brought promptly before a judge or another authorised
judicial officer. This judge or officer must then decide if the detention is lawful
and whether the person should be released while awaiting trial or kept in
custody – Brogan and Others v UK
Paragraph 5(4)
This paragraph refers to anyone who has been arrested for a crime and
anyone who has been unlawfully detained not due to having committing a
crime (such as those detained under the Mental Health Act 1983)
Anyone who is arrested or detained must have the opportunity to contest the
legality of their detention in court. This right includes having a swift
determination of the detention's lawfulness and being released if it is deemed
unlawful – Airey v Ireland and Brogan v UK.
Paragraph 5(5)
This paragraph applies to anyone who has unlawfully been deprived of their
liberty (therefore includes those unlawfully deprived due to suspicion of
having committed an offence or after having committed an offence or
detention which does not involve a crime)
Anyone who has been unlawfully detained is entitled to compensation for the
harm they have suffered. This compensation covers physical and
psychological harm, as well as financial losses and other damages resulting
from the detention – Weeks v UK.
Article 6 AO1
