Key Provisions of the European Court on Human Rights

• ARTICLE 5 of the ECHR contains the right to...

  liberty and security
• Liberty means in the physical sense of being detained, and this isn’t necessarily within a prison cell, it could be within a wide area – up to 2.5km in Guzzardi v Italy.
• The Cheshire West case saw Lady Hale clarifying what is meant by a deprivation of liberty and giving a universal definition regardless of circumstance or disability, she referred to a person as what?


  “under continuous supervision and control and not free to leave”
• What did Lady Hale have to say in her summary statement on the Cheshire West case?

  'A gilded cage is still a cage'
• A similar ruling from Cheshire West was made in London Borough of Hillingdon v Neary (2011), when detention of an autistic man was deemed to be a breach of Article 5.
• No one shall be deprived of his liberty except for certain lawful reasons in six circumstances

  1. Detention after a criminal conviction (putting someone in prison after they've been sentenced). However, indeterminate sentences and life sentences beyond the tariff imposed will NOT be lawful (Stafford). IPPs and any other indeterminate sentences are now gone and would be a breach as they could be deemed as torture. Some argue whole life terms are unjustified, as attempted in Vintner and Others v UK 2013, but they are not a breach.
• Detaining asylum seekers is compatible with Article 5, as long as they are told quickly why they are being detained. In Saadi v UK (2008), 72 hours was held to be too long.
• The 5 definitions of Article 5

  1. Everyone has a right to liberty and security of person. No one shall be deprived of his liberty save for (in 6 circumstances)
  2. Everyone who is arrested shall be informed promptly, in a language he understands, of the reasons for his arrest and of any charge against him. This is covered by PACE 1984.
• The 5 definitions of Article 5

  3. Everyone arrested/ detained on suspicion of crime is brought promptly before a judge and is entitled to trial within reasonable time or to release pending trial. Release is conditioned by guarantees to appear for trial. These reqs are covered in the UK by PACE and The Bail Act. 'Promptly'- how long? Brogan ruled 4 days 6 hrs too long.

  4. Everyone who's deprived of his liberty by arrest/ detention is entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by court and release ordered if the detention not lawful.
• The 5 definitions of Article 5

  5. Anyone who's been victim to contravention of the provisions of Article 5 shall have an enforceable right to compensation.
• How are liberty and deprivation defined?

  Liberty was defined in Engel v the Netherlands as 'the physcial liberty of the person. It is not concerned with the broader ideas of liberty and the lack of psychological social subordination'. It's understood deprivation doesn't mean prison necessarily- it is a matter of 'degree and intensity'.
• What are DOLS?

  Deprivation of Liberty Safeguards- can only be used if the person will be deprived of their liberty in a care home or hospital. In other settings the Court of Protection can authorise a deprivation of liberty. Care homes and hospitals must ask a local authority if they can deprive a person of their liberty- this is called requesting a standard authorisation.
• DOLS was an amendment to the Mental Capacity Act 2005 but has since been replaced by the Mental Capacity(Amendment) Act 2019 with the Liberty Protection Safeguards. These were planned to come into force April 2022 but haven't as of October 2022.
• So, what sort of things suggest a deprivation of liberty?

  • No DOLS granted
  • no checks, no authorisation
  • the person wanted to go home
  • family members were uninformed
  • not free to leave/ have been tranquilised
  • under constant supervision
• No one shall be deprived of his liberty except for certain lawful reasons in six circumstances

  2. Noncompliance with a court order- allows for individuals who have breached bail conditions or not complied with a court order to be lawfully detained

  3. Lawful arrest on suspicion of a crime- there must be reasonable grounds for detaining and questioning someone. If they are detained on suspicions without evidence or information that reasonably means they should do so, there has been a breach (Fox, Campbell and Hartley v UK)
• No one shall be deprived of his liberty except for certain lawful reasons in six circumstances

  4. Detention of a minor for ‘educational purposes’ – usually referring to children in care rather than simple classroom provisions

  5. Lawful detention of persons of unsound mind, alcoholics, drug addicts or vagrants. Covers the holding of people for their own safety or safety of others. It also renders lawful the lockdown restrictions put in place during the Covid-19 pandemic. People with disabilities have the same rights as us and lack of reviews or adherence to DOLS is a breach (HL v UK 2004)
• No one shall be deprived of his liberty except for certain lawful reasons in six circumstances

  6. Detention of illegal immigrants- refers to refugees and asylum seekers being detained whilst their case is being considered. Saadi confirms their detention is lawful as long as it's quick and they've been properly informed of their detention.
• Is the UK pushing its luck with liberty and security?

  TPIMS (Terrorist Prevention and Investigation Measures) allow the Home Secretary to impose a wide range of punitive restrictions on individuals, entirely outside the justice system, where it's decided, on balance of probabilities, they're involved in terrorism activity. Restrictions include curfews, exclusion from certain places, restrictions on travel/ work, contact with others, use of devices, access to finance, daily reports to police station and GPS monitoring. Individuals aren't charged- only suspected- of terrorism offences.
• Are TPIMs a breach of Article 5?

  Yes but it's probably justified although it's tough to say, without these measures a terrorist attack could happen but 2 years is a long time to 'suspect' someone without having enough evidence to charge.
• What is kettling and is it a breach of article 5?

  It's a police tactic for controlling large crowds during demonstrations or protests. It involves the formation of large cordons of police officers who then move to contain a crowd within a limited area. This tactic is becoming more frequent, it was used as a Black Lives Matter protest in 2020. It's a breach but it's justified as long as it's necessary, in reason or a last resort (Austin v Commissioner of Police of the Metropolis, McClure and Moos, Mengesha)
• The case of In re F (Mental Patient: sterilisation) was it okay to deprive him of his liberty?

  Yes because in the 'Lawful detention of persons of unsound mind, alcoholics, drug addicts or vagrants' it is also covered that the holding of people for their own safety or safety of others is not a breach.
• Article 6 of the ECHR details the right to a fair trial, covering both criminal and civil hearings.
• Article 6 specifically says that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal, and that judgments should be announced publicly unless there are legal or moral reasons for not doing so. R v Incedal(2014) raised the issue of public hearings in the UK, and R v Twomey (2009) similarly raised questions about whether a trial without jury is fair.
• The case of Steel and Morris v UK (2005), the ‘McLibel trial’, demonstrates one of the principles in the right to a fair trial- ‘equality of arms’. This states that the two sides in a case should have equal access to representation and there should be no inherent bias in the hearing of the case. Disclosure of evidence is also an important aspect and this is part of pre-trial procedures in English law, though under PACE s76 + 78 evidence can be deemed inadmissible and excluded from any resulting trial if it was obtained under oppression or if it may result in the trial not being fair.
• As part of the principle of a fair trial, everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. This is enshrined in English law by The Woolmington Principle. This is an extra protection for those charged with criminal offences.
• The right to silence is also often linked with the concept of a fair trial. The Criminal Justice and Public Order Act 1994 restricted the right to silence in English law and the jury can now draw adverse inferences for a defendant’s silence; this was confirmed by the ECtHR in Murray v UK (1996). I think right to silence shouldn't be sacrosanct as being completely silent is different from being unsure of an answer so therefore adverse inferences should be made from that.
• The right to a fair trail gives those charged with a criminal offence the following minimum rights:

  • Everyone charged with a criminal offence should be informed promptly of the charges against him in a language he understands (dealt with by PACE)
  • They have adequate time and facilities for preparing a defence (UK has issues with legal aid)
• The right to a fair trail gives those charged with a criminal offence the following minimum rights:

  • They should also be able to defend themselves in person or through legal assistance of their own choosing or, if they do not have sufficient means to pay for legal assistance, to be given it free when the interests of justice require. These criteria are dealt with by PACE, though cuts to legal aid via LASPO raise questions about whether this element is being properly fulfilled in the UK. In Golder v UK (1975) it was also held that denying access to legal advice is a breach of Article 6.
• The right to a fair trail gives those charged with a criminal offence the following minimum rights:

  • to examine or examined witnesses against him
  • free assistance of an interpreter if they cannot understand or speak the language
• Twomey and T and V v UK are two cases that say what about Article 6?


  T and V demonstrates how media might prejudice the interests of justice and how it can be unfair to have a public trial in some cases, especially with children. Twomey questioned how fair a trail without jury is.
• Article 8 contains the right to respect for private and family life, home and correspondence
• Article 8 states there shall be no interference by a public authority with the exercise of this right except such as in accordance with the law or is necessary in a democratic society 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
• Article 8 is a qualified right which means it can be limited in certain circumstances- but nay limitation must balance the interests of the individual and of the community as a whole. There are some lawful exceptions when it is necessary and proportionate for:

  • public safety or the country’s economic wellbeing
  • prevention of disorder or crime
  • protection of health or morals
  • protection of other people’s rights and freedoms
  • national security
• Right to a private life is NOT the same as what?

  The general right to privacy- this doesn't exist in the UK
• The courts have interpreted the concept of ‘private life’ very broadly. It covers things like:

  • respect for sexuality- pre gay marriage 2014
  • the right to personal autonomy - sectioning, DOLS
  • respect for private and confidential information, including storing and sharing of data- terrorism, Data Protection Act
  • the right not to be subject to unlawful state surveillance (Halford)- national security
  • the right to control the spreading of information about your private life, including photographs taken covertly
• In Pretty v UK (2002), the court outlined Article 8 as including physical and social identity, gender identification, name, sexual orientation and personal development. Mental health was deemed to be an important part of a person’s private life in Bensaid v UK (2001). Transgender people are also protected under this article (Goodwin). The Gender Recognition Act 2004 made it easier for transgender individuals to legally be afforded the rights in line with their acquired gender.
• In Halford what caused the breach of Article 8?

  Bugging a phone
• In Article 8, can the media be prevented from interfering in a persons life?

  Yes, it also means that personal information (official records, photographs, letters, diaries, medical records) should be kept securely and not shared without permission except in certain circumstances.
• What did the case of AB v Sec of State for Justice create a point of law for in article 8?

  The State's focus on costs of placing C in segregation in a female prison could not be considered proportionate to justify the interference of C's personal freedom. Here, the interests of the individual outweighed the fact it would cost the state.
• Personal Data, including DNA and medical records are also protected by Article 8. This can be extended to minors, as shown in Axon v Secretary of State for Health (2006), where the court held that a child under 16 could seek medical advice without parental permission. Also it's a violation that marriages will determine the record of parentage at birth, even if this child is with another partner it is a violation to not recognise this anymore (Kroon)