Criminal law part B cases
Article 5(1) ECHR (pre-trial detention)
(3) Everyone arrested or detained in accordance with the provisions of
paragraph 1(c) of this shall be brought promptly (brogan and other v uk) before a judge or
other officer authorized by law to exercise judicial power and shall be entitled to (appear ar)
trial within a reasonable time or to release pending trial (letellier v France). Release may
beconditioned by guarantees to appear for trial
art.5(1)(c) The 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;
So, after being lawfully detained:
Rule:
Step one: Brogan and others v UK
The defendant shall be brought promptly before a judge or other officer authorized by
law to exercise judicial power.
-this means maximum 4 days
Step two: Letellier v France
The defendant shall be entitled to trial within a reasonable time or release pending
trial.
But release is not a guarantee:
1.Reasonable and persistent suspicion that the person has committed the crime
2. Relevant and sufficient grounds for continued detention:
-Necessary to prevent the defendant from influencing the witness
-necessary for the prevention of public order being disturbed
, -absconding
-Adequacy of the court supervision has to be evaluated ( could the objective been attained
through court supervision of the defendant e.g. house arrest) (if the defendant provides
sufficient guarantees that court supervision would be good enough to prevent risk of
absconding they must be released )
3.Is the Pre-trial detention period unreasonable regarding the aforementioned criteria?
Article 8 ECHR
(1) Everyone has the right to respect for his private and family life,
his home and his correspondence . (niemietz v Germany)
(2) There shall be no interference by public authority with the
exercise of this right except such as is (1) in accordance with the
law and is (3) necessary in a democratic society
(2) in the interests of national security, public safety or the economic well-
being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others (=legitimate aim)
Rule
1.Is there an interference as laid down in art 8(1) (Niemietz v Germany)
-Private life, home can also be interpreted as work place
2.Was the interference in accordance with the domestic law? (khan v UK)
Article 5(1) ECHR (pre-trial detention)
(3) Everyone arrested or detained in accordance with the provisions of
paragraph 1(c) of this shall be brought promptly (brogan and other v uk) before a judge or
other officer authorized by law to exercise judicial power and shall be entitled to (appear ar)
trial within a reasonable time or to release pending trial (letellier v France). Release may
beconditioned by guarantees to appear for trial
art.5(1)(c) The 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;
So, after being lawfully detained:
Rule:
Step one: Brogan and others v UK
The defendant shall be brought promptly before a judge or other officer authorized by
law to exercise judicial power.
-this means maximum 4 days
Step two: Letellier v France
The defendant shall be entitled to trial within a reasonable time or release pending
trial.
But release is not a guarantee:
1.Reasonable and persistent suspicion that the person has committed the crime
2. Relevant and sufficient grounds for continued detention:
-Necessary to prevent the defendant from influencing the witness
-necessary for the prevention of public order being disturbed
, -absconding
-Adequacy of the court supervision has to be evaluated ( could the objective been attained
through court supervision of the defendant e.g. house arrest) (if the defendant provides
sufficient guarantees that court supervision would be good enough to prevent risk of
absconding they must be released )
3.Is the Pre-trial detention period unreasonable regarding the aforementioned criteria?
Article 8 ECHR
(1) Everyone has the right to respect for his private and family life,
his home and his correspondence . (niemietz v Germany)
(2) There shall be no interference by public authority with the
exercise of this right except such as is (1) in accordance with the
law and is (3) necessary in a democratic society
(2) in the interests of national security, public safety or the economic well-
being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others (=legitimate aim)
Rule
1.Is there an interference as laid down in art 8(1) (Niemietz v Germany)
-Private life, home can also be interpreted as work place
2.Was the interference in accordance with the domestic law? (khan v UK)
