ARTICLE 5

Question 1

Article 5

Answer 1

Everyone has the right to liberty and security of person. No one shall be deprived of this right except for in the situations in 5(1) (a-f) and in accordance with a procedure prescribed by law

Question 2

Article 5(1) (a-c)

Answer 2

The situations when a state can lawfully deprive a person of their liberty

Question 3

The distinction between deprivation and restriction of liberty

Answer 3

There is a distinction between a deprivation of and a restriction of liberty, depending on factors such as degree and intensity (Guzzardi v Italy, type (Austin v UK) and length (Kasparov v Russia)

Question 4

HM v Switzerland

Answer 4

Article 5 can only be engaged when there is a deprivation of liberty, not a mere restriction

Question 5

Austin v UK

Answer 5

Kettling can be either a restriction or deprivation. Decided by whether the containment was 1. unavoidable 2. necessary 3. kept to the minimum

Question 6

Depriving liberty can be lawful if one of these exceptions apply…

Answer 6

5(1)(a) - person has been convicted to a sentence by the court
5(1)(b) - to secure compliance with a lawful obligation
5(1)(c) - on reasonable suspicion of having committed an offence or to prevent an offence

Question 7

Ostendorf v Germany

Answer 7

Any obligation must be specific and concrete, rather than a general duty to obey police instructions

5(1)(b)

Question 8

Kasparov v Russia

Answer 8

There was an unlawful deprivation as there was no evidence or any reasonable grounds for suspicion

5(1)(c)

Question 9

5.2

Answer 9

Informed promptly, in language they understand, the reason for detention

Question 10

5.3

Answer 10

Only applies to (1)(c): Brought promptly before a judge to decide whether to remain in custody or be released on bail

Question 11

R(Hicks) v Commissioner of PM

Answer 11

Preventative detention can only be lawful provided the arrest was lawful

Question 12

5.4

Answer 12

Lawfulness of detention decided speedily by court

Question 13

5.5

Answer 13

Anyone arrested/detained in contradiction with these provisions entitled to compensation

Question 14

UK domestic legislation complying with Article 5

Answer 14

The Police and Criminal Evidence Act (PACE) 1984

Question 15

s.24(1) PACE

Answer 15

Police officers can arrest a suspect without a warrant where a person is committing, is about to or has committed a criminal offence

Question 16

s.24(5) PACE

Answer 16

Reasonable grounds that make arrest necessary:
- Identify suspect
- Prevent injury/damage
- Allow effective investigation
- Prevent suspect from dissapearing

Question 17

What is the 2-stage test to prevent necessity?

PACE

Answer 17

Hayes:
1. Did the officer actually believe the arrest was necessary? (subjective)
2. Was that belief objectively reasonably

Question 18

s.28

Answer 18

An arrested person has the right to be told the reason for their arrest ASAP

Question 19

During an anticipated breach of the peace, when should the power of arrest be used?

Answer 19

Only when there is a sufficiently serious and imminent threat

Question 20

Hicks

Breach of peace

Answer 20

Detention for preventative reasons is not an unlawful deprivation of liberty

Question 21

Define breach of peace

Answer 21

The behaviour of the person involved causing the police officer to believe that a breach of peace had or would occur and that it related to harm which was done or likely to be done to a person OR a person is in fear of being harmed - R v Howell