Key Provisions of the European Convention of Human Rights
Article 5: Right to Liberty and Security
Article 5 is a limited right which covers the freedom from deprivation of liberty by unlawful
detention or arrest. A person has had their liberty deprived when they are detained for a
period of time, unlawfully when they have not consented to the detention, or lawfully when
the reason for the detention is set by the state. These have been consolidated in the “acid
test” (Cheshire v P): whether an individual is ‘under continuous supervision and control and
not allowed to leave’. They can be deprived of liberty ‘even if their departure is not prevented
by a locked door or other physical barrier, and even when allowed extensive contact with the
outside world’ (Austin v Commissioner of Police).
Article 5(1) guarantees an individual’s liberty and security, protecting them against arbitrary
arrest and detention. For any detention to be lawful, it must follow a prescribed procedure
under Article 5(1)(a-f):
- a) detention after due process and conviction by court
- b) detention and arrest of those who breach court orders and/or fail to fulfil
obligations under law
- c) detention/arrest of someone suspected of having committed an offence
- d) detention of a minor for educational supervision or to bring him before a legal
authority
- e) detention to prevent the spread of infectious disease, of persons of unsound
minds, alcoholics, drug addicts or vagrants
- f) lawful arrest to prevent the unauthorised entry to a country or of a person who is to
be extradited or deported
Article 5(2) requires those who have been arrested to be given a reason, in a language they
understand, promptly after the arrest. These are most covered under the PACE Act 1984. It
must be prompt, and need not be immediate (Fox, Campbell and Hartley v UK).
Article 5(3) ensures that no one stays detained for too long before trial. They must be
brought before a judge promptly (Brogan v UK), an entitlement to bail and to be tried within
a reasonable time. Bail may be refused if Defendant is a flight risk, considered dangerous to
the public, or to protect themselves under the Bail Act.
Article 5(4) allows for any challenge to unlawful detention. This is Habeus Corpus. Anyone
deprived of their livery can take proceedings under Judicial Review to have the lawfulness of
, Key Provisions of the European Convention of Human Rights
their detention speedily decided by a court. Those detained must have their detention
regularly reviewed (Stafford v UK) and must have access to courts, impartial and
independent authority (R v Bow Street Magistrartes ex parte Pinochet), speedy decisions
(R v Sec State ex parte Noorkoiv), and determinate sentences to be reviewed regularly or
indeterminable ones allowed to be challenged.
Article 5(5) gives those who are victim to a deprivation of liberty a mandatory right to
compensation.
There are specific circumstances in which the rights under Article 5 ECHR can be limited.
One of these is in regards to terror suspects. Deprivation is a matter of ‘degree and intensity’
of involvement within terrorist activities as to whether it will be lawful or not (Guzzardi v
Italy). Originally, the courts made a declaration of incompatibility in the case of A and
Others v UK 2004, where it was held that the process of detaining terror suspects without
charge or trial was unlawful. Following this, the UK derogated its powers to bring in a control
order which offered the Home Secretary an unlimited range of restrictions upon foreign terror
suspects, avoiding the need for prosecution. These were replaced by Terrorism Prevention
and Investigation Measures (TPIMs) in 2012 which allow the Home Secretary to restrict a
person's freedom and liberty.
Another circumstance is regarding hospital and parental care. When a person of sound mind
is living with and cared for by his parents, friends, or relatives in a family home, foster care,
or in sheltered accommodation, there will normally not be a deprivation of liberty. It will
become an issue when the patient has learning difficulties or special needs (JE v DE)-
where despite having freedom to do things, he would be brought back to the home if he was
to escape, amounting to an unlawful deprivation of liberty.
Parental restrictions do not usually offend Article 5, but a two-year Secure Accommodation
order by the courts was held to be a breach.
Kettling is when people are held by the police in an area as a means of controlling a
demonstration with no statutory authority and does not expressly fall under the prescribed
procedures under Article 5(1). It was held that if kettling was done in good faith and was
proportionate and no longer than necessary, then there would not be a breach of Article 5
(Austin v Commissioner of Police of the Metropolis).
Article 5: Right to Liberty and Security
Article 5 is a limited right which covers the freedom from deprivation of liberty by unlawful
detention or arrest. A person has had their liberty deprived when they are detained for a
period of time, unlawfully when they have not consented to the detention, or lawfully when
the reason for the detention is set by the state. These have been consolidated in the “acid
test” (Cheshire v P): whether an individual is ‘under continuous supervision and control and
not allowed to leave’. They can be deprived of liberty ‘even if their departure is not prevented
by a locked door or other physical barrier, and even when allowed extensive contact with the
outside world’ (Austin v Commissioner of Police).
Article 5(1) guarantees an individual’s liberty and security, protecting them against arbitrary
arrest and detention. For any detention to be lawful, it must follow a prescribed procedure
under Article 5(1)(a-f):
- a) detention after due process and conviction by court
- b) detention and arrest of those who breach court orders and/or fail to fulfil
obligations under law
- c) detention/arrest of someone suspected of having committed an offence
- d) detention of a minor for educational supervision or to bring him before a legal
authority
- e) detention to prevent the spread of infectious disease, of persons of unsound
minds, alcoholics, drug addicts or vagrants
- f) lawful arrest to prevent the unauthorised entry to a country or of a person who is to
be extradited or deported
Article 5(2) requires those who have been arrested to be given a reason, in a language they
understand, promptly after the arrest. These are most covered under the PACE Act 1984. It
must be prompt, and need not be immediate (Fox, Campbell and Hartley v UK).
Article 5(3) ensures that no one stays detained for too long before trial. They must be
brought before a judge promptly (Brogan v UK), an entitlement to bail and to be tried within
a reasonable time. Bail may be refused if Defendant is a flight risk, considered dangerous to
the public, or to protect themselves under the Bail Act.
Article 5(4) allows for any challenge to unlawful detention. This is Habeus Corpus. Anyone
deprived of their livery can take proceedings under Judicial Review to have the lawfulness of
, Key Provisions of the European Convention of Human Rights
their detention speedily decided by a court. Those detained must have their detention
regularly reviewed (Stafford v UK) and must have access to courts, impartial and
independent authority (R v Bow Street Magistrartes ex parte Pinochet), speedy decisions
(R v Sec State ex parte Noorkoiv), and determinate sentences to be reviewed regularly or
indeterminable ones allowed to be challenged.
Article 5(5) gives those who are victim to a deprivation of liberty a mandatory right to
compensation.
There are specific circumstances in which the rights under Article 5 ECHR can be limited.
One of these is in regards to terror suspects. Deprivation is a matter of ‘degree and intensity’
of involvement within terrorist activities as to whether it will be lawful or not (Guzzardi v
Italy). Originally, the courts made a declaration of incompatibility in the case of A and
Others v UK 2004, where it was held that the process of detaining terror suspects without
charge or trial was unlawful. Following this, the UK derogated its powers to bring in a control
order which offered the Home Secretary an unlimited range of restrictions upon foreign terror
suspects, avoiding the need for prosecution. These were replaced by Terrorism Prevention
and Investigation Measures (TPIMs) in 2012 which allow the Home Secretary to restrict a
person's freedom and liberty.
Another circumstance is regarding hospital and parental care. When a person of sound mind
is living with and cared for by his parents, friends, or relatives in a family home, foster care,
or in sheltered accommodation, there will normally not be a deprivation of liberty. It will
become an issue when the patient has learning difficulties or special needs (JE v DE)-
where despite having freedom to do things, he would be brought back to the home if he was
to escape, amounting to an unlawful deprivation of liberty.
Parental restrictions do not usually offend Article 5, but a two-year Secure Accommodation
order by the courts was held to be a breach.
Kettling is when people are held by the police in an area as a means of controlling a
demonstration with no statutory authority and does not expressly fall under the prescribed
procedures under Article 5(1). It was held that if kettling was done in good faith and was
proportionate and no longer than necessary, then there would not be a breach of Article 5
(Austin v Commissioner of Police of the Metropolis).
