Article 5
- Right to liberty & security: ‘everyone has the right to security of person,
no one shall be deprived of his liberty except in accordance with a procedure prescribed in
law’.
- Liberty: Engel v Netherlands - means in the physical sense of not being directly
physically controlled by another.
> Cheshire Test (person’s liberty been deprived): the person claiming
their A5 rights have been breached will have to prove that they were ‘under continuous
supervision & control & not free to leave’.
- Deprivation: Guzzardi gives us the meaning - the courts must look at the 'degree &
intensity' of the restrictions imposed on the person (Shimovolos and Re DE).
- Qualified right: means it can be restricted - any restriction must be
proportionate.
> any restrictive measures must be necessary, as a last resort & 'specific & concrete' not
based on vague grounds.
> When they can be:
- Following conviction
- Following arrest
- Detention of a minor for educational purposes
- To prevent the spread of infectious diseases
- To deport or extradite
- For mental health, drug/alcohol reason
- Article 5(2): a person must be told in a language they understand the reason for
their arrest, detention & charge.
- Article 5(3): that you have the right to be brought/reviewed promptly (Brogan’s
case) before a judicial officer. Must also be regularly reviewed.
> Independent judicial officer: the officer deciding whether the detention is
lawful must not have been involved in the investigation.
> Presumption of bail unless reasonable grounds to believe that
if released the suspect would: fail to surrender, commit an offence, interfere
with witnesses or obstruct the course of justice.
> Tried within reasonable time (court appearance 28 days from
date of charge).
, - Article 5(4): a person can challenge the lawfulness of the detention.
> will also apply to those arrested & detained under mental health legislation.
- Challenges:
> those challenging deportation, extradition, or asylum application – Immigration Appeal
Tribunal
> if arrested – at first court hearing (Magistrates Court)
> if detained under mental health legislation – Mental Health Tribunal
- can apply Cheshire Test: were they under 'constant supervision & not entitled
to leave'?
> Lady Hale's comments in the case: people with mental incapacity have the same right to
liberty as everyone else (P & Q v Surrey CC).
> if sentenced following conviction – Parole Board
- Parole Board: offender can apply to the Parole Board for release on licence.
> also set licence conditions where a person has been released early (Stafford and James).
- Terrorism: control orders – placed restrictions on people accused of
terrorism (e.g. tagging) but replaced.
> TPIM’s (2012): by the Home Secretary & controls residence, movement & activities (2
years).
> Stop and search: stop & search with no suspicion only in exceptional
circumstances (14 days)
- Right to liberty & security: ‘everyone has the right to security of person,
no one shall be deprived of his liberty except in accordance with a procedure prescribed in
law’.
- Liberty: Engel v Netherlands - means in the physical sense of not being directly
physically controlled by another.
> Cheshire Test (person’s liberty been deprived): the person claiming
their A5 rights have been breached will have to prove that they were ‘under continuous
supervision & control & not free to leave’.
- Deprivation: Guzzardi gives us the meaning - the courts must look at the 'degree &
intensity' of the restrictions imposed on the person (Shimovolos and Re DE).
- Qualified right: means it can be restricted - any restriction must be
proportionate.
> any restrictive measures must be necessary, as a last resort & 'specific & concrete' not
based on vague grounds.
> When they can be:
- Following conviction
- Following arrest
- Detention of a minor for educational purposes
- To prevent the spread of infectious diseases
- To deport or extradite
- For mental health, drug/alcohol reason
- Article 5(2): a person must be told in a language they understand the reason for
their arrest, detention & charge.
- Article 5(3): that you have the right to be brought/reviewed promptly (Brogan’s
case) before a judicial officer. Must also be regularly reviewed.
> Independent judicial officer: the officer deciding whether the detention is
lawful must not have been involved in the investigation.
> Presumption of bail unless reasonable grounds to believe that
if released the suspect would: fail to surrender, commit an offence, interfere
with witnesses or obstruct the course of justice.
> Tried within reasonable time (court appearance 28 days from
date of charge).
, - Article 5(4): a person can challenge the lawfulness of the detention.
> will also apply to those arrested & detained under mental health legislation.
- Challenges:
> those challenging deportation, extradition, or asylum application – Immigration Appeal
Tribunal
> if arrested – at first court hearing (Magistrates Court)
> if detained under mental health legislation – Mental Health Tribunal
- can apply Cheshire Test: were they under 'constant supervision & not entitled
to leave'?
> Lady Hale's comments in the case: people with mental incapacity have the same right to
liberty as everyone else (P & Q v Surrey CC).
> if sentenced following conviction – Parole Board
- Parole Board: offender can apply to the Parole Board for release on licence.
> also set licence conditions where a person has been released early (Stafford and James).
- Terrorism: control orders – placed restrictions on people accused of
terrorism (e.g. tagging) but replaced.
> TPIM’s (2012): by the Home Secretary & controls residence, movement & activities (2
years).
> Stop and search: stop & search with no suspicion only in exceptional
circumstances (14 days)
