article 5

• article 5 - the right to liberty and security
• it is a limited right cannot be interfered with by the state unless allowed under sections a-f or if the state derogates
• 5(1) - everyone has the right to liberty of security of person
• 5(1)(a) - being convicted by a court
• 5(1)(b) - arrest due to non-compliance with the law
• 5(1)(c) - an arrest for the purpose of bringing him before a court
• 5(1)(d) - detention of a minor by lawful order
• 5(1)(e) - lawful detention for the prevention of spreading diseases and for people of unsound minds
• 5(1)(f) - the lawful arrest to prevent unauthorised entry into country
• 5(2) - everyone shall be informed promptly of their arrest
• 5(3) - everyone arrested shall be bought before a judge within reasonable time
• 5(4) - the lawfulness of the detention should be speedily and shall be decided by a court
• 5(5) - right to compensate for breach of article 5
• guzzardi v italy - the decision of deprivation will be based on a 'degree of intensity'

  gave factors to consider if it is a deprivation of liberty:

  • type
  • duration
  • effects
  • manner of implementation of the measure in question
• austin and ors v uk - measures must be proportionate, in good faith and enforced no longer than necessary
• moos v met police - kettling should only be used as a last resort when there is evidence of an imminent breach of the peace
• mengesha v met police - police cannot keep details and video recordings as it will breach A5 and A8
• chesire west and chester council v P - deprivation can occur where 'under continuous control and not free to leave.' Those with mental incapacity have the same right to liberty as everyone else
• P & Q vs Surrey CC - supreme court test - ''is the patient under continuous supervision and not entitled to leave?'' decided they were deprived of their liberty.
• Re D E - deprivation likely if not 'free to leave'
• winterwerp v netherlands - sets out the criteria to see if those of mentally disordered people have been arbitrarily detained.
• winterwerp vs netherlands criteria: the detention is to be justified if -

  • the mental condition has been diagnosed by a medical expert
  • the disorder must be sufficient to justify the detention
  • detention should only be for the duration that the disorder exists
  • should be at an appropriate institution
  • should be periodically reviewed
• stop and question - police have the right to stop and question a person

  rice vs connolly - members of the public doesnt have to answer questions

  ricketts v cox - if abusive and hostile then can be guilty of 'obstructing a police officer in the execution of his duty
• stop and account - police can ask someone to account for their behaviour

  stops must be recorded and given a copy to the person whose been stopped
• stop and search - legal authority

  s1 PACE 1984 - the standard rules for stop and search

  s60 CJPOA 1994 - gives police the right to search people in a defined area in a specific time period

  s44 terrorism act 2000
• stop and search - police must have reasonable grounds - fishing exhibitions NOT allowed

  search must be done in public

  must be done with respect and fairly without discrimination

  suspicion must be on intelligence, information and behaviour BUT NOT on race, age etc

  if rules not followed then not in accordance with the law e.g Osman vs DPP - officer didnt give name so unlawful and OSMAN couldnt be charged
• process for a stop and search - GOWISELY

  • grounds
  • object
  • warrant card
  • identity
  • station
  • entitlement
  • legal power
  • 'you'
• roberts v met police - police making someone wait is not a deprivation
• gillan & quinton - under terrorism act 2000 there must be reasonable belief an act of terrorism will take place
• detaining suspected terrorists:

  in 2012, the govt replaced control orders with terrorism prevention and investigation measures

  they include: electronic tagging - restrictions on where they go - banned travelling etc
• stafford v uk - indeterminate sentences are considered compatible with A5 if theres a link between sentence and the reason for continuing the detention
• shimolvolos v russia - A5(1)(c) cannot be used arbitrarily to arrest people who authorities think may offend
• 5(2) r v samuel - right to a duty solicitor
• brogan v uk - 4 days and 6 hours was considered to long to be bought before a judge
• McKay v uk - 4 days was considered reasonable to be bought a judge
• every D has the right to bail under s4 bail act 1976

  bail can be conditional or unconditional

  bail conditions include - reporting to the police station every day, surrendering passport etc

  these conditions are contained in s3 bail act 1976
• the court should start with the presumption to grant bail to a suspect because they are innocent until proven guilty.

  A defendant will not be granted bail if the court has substantial grounds to believe that they :

  • will fail to turn up to bail
  • will interfere with witnesses
  • will break their bail conditions
• detention at the police station should be reviewed periodically and the custody officer has 2 important roles:

  1. reviews - custody officer is under a duty to release the suspect if NO grounds to continue the detention
  2. records - custody officer keeps a record of times and events to ensure time limits for detention have not been exceeded.
• detention of people of unsound mind will be reviewed by a mental health review tribunal
• detention in prison is reviewed by the parole board who decide if a person convicted of an indeterminate sentence is eligible for release.