Article 5

• P- limited right - can be restricted in certain circumstances when necessary


  DP- Article 5 (1) (a-f) - keep everyone safe - A5(1)(c) detention after arrest is necessary for safety - stop and searches prevent the carrying of weapons

  WDP- derogate (further restrict) covid fair? Necessary?
• P- Supreme Court and ECtHR agree kettling is lawful, rules can lead to abuse of power


  DP- Kettling is important - protects public and protesters. Austin, fair but vague.

  WDP- Mengesha, police used powers to get names and addresse - does not follow rules from Austin (no violence) and abused their power.
• P- strict rules governing detention by the police, such as PACE, protect individual’ rights.


  DP- Police officer can conduct stop and search in public space with reasonable suspicion which is fair as it protects public if suspicion is correct.

  WDP- however s60 are overused by the police and do not as they don’t need reasonable suspicion or a reason so it will allow discrimination.
• P- Article 5 protects society by detaining people under TPIMs when they are suspected of terrorist activity


  DP- Secretary of State v JJ stated a 18hr a day curfew is unlawful as it’s too restrictive. Secretary of State v E states a 12hr day curfew is lawful as it will allow time for a job.

  WDP- anti-Terror legislation 2001 protected rights of society but was extremely discriminatory toward foreign nationals. Suspected and detained indefinitely is unfair as they could be detained for life.
• Article 5(1)

  “Everyone has a right to liberty and security of the person.”

  (no one shall be deprived of his liberty except in certain circumstances and in accordance with a procedure that has been prescribed by law.)
• Deprivation of liberty

  No clear definition - it’s assumed there will be no deprivation of liberty if detention is carried out in good faith, it was necessary and its length is reasonable.
• Deprivation of Liberty

  Cheshire West - A person will be deprived of their liberty if they are being detained without a court order and if they are under continuous supervision or control and not allowed to leave.
• Deprivation of liberty

  Guzzardi v Italy - when deciding if there has been a deprivation of liberty the duration, effects and manner of implementation will be considered.
• Article 5(3) - Provides the right to be brought promptly before a judge, released on bail when justified and to be tried within a reasonable time.

  Article 5(4) - Everyone who is deprived of their liberty can challenge it in court and the right to have review of the detention.

  Article 5(5) - If a court decides someone has been unlawfully deprived of their liberty, they have the right to compensation.
• Lawful Restriction

  Article 5(1)(a-f)

  (a) detention of a person after conviction. (b) detention of a person for non-compliance with a court order. (c) detention after arrest. (d) detention of a minor for education.
• Lawful Restrictions

  Article 5(1)(a-f)

  (e) Detention for the purpose of disease, of unsound mind.

  Winterwerp v The Netherlands - Person suffering from disease can be detained with a court order if their condition is persistent, of unsound mind, and detention is necessary.
• Lawful Restrictions

  Article 5(1)(a-f)

  (f) Detention of a person with the view to deport or extradite them.

  Saadi v UK - Court should consider if the deprivation was necessary and proportionate.
• Terrorism Prevention and Investigation Measures

  A terrorist suspect may be subjected to this order, which places conditions on their residence, movement and activities.
• Terrorism Prevention and Investigation Measures (TPIM)

  Restrictions:

  Max period of two years

  Tagging

  Overnight residence

  Social restrictions: internet activity, places, people

  Foreign travel
• Terrorism Prevention and Investigation Measures (TPIM)

  Secretary of State v JJ - If there are too many restrictions it can be an unlawful deprivation of liberty.

  SOS v JJ - 18hr a day curfew is unlawful

  SOS v E - 12hr a day curfew is lawful
• Kettling


  Process used by the police where citizens are detained to control crowds to prevent violence.
• Kettling

  Austin - Kettling will not amount to a deprivation of liberty if it is implemented proportionately, the measures used were necessary to prevent violence and enforced for no longer than necessary.
• Stop and Search

  R (Gillan) v Commissioner of the Police - Detention whilst being searched can be lawful and not a deprivation of liberty if the strict rules are followed.
• Stop and Search

  Section 1 of the Police and Criminal Evidence Act 1984 - gives police powers to stop and search individuals in a public place if they have reasonable suspicion they are carrying stolen goods or a prohibited article.
• Stop and Search

  Code of Practice A from PACE 1984

  
  

  Officer can only ask you to remove your coat, jacket and gloves.

  Officer must identify themselves (s2 PACE)

  Must tell the person why they are being searched (s2 PACE)

  Can use reasonable force to carry out the search.

  Officer must keep a written record of the search in their pocket book (s3 PACE)
• Stop and search

  Section 60 Criminal Justice and Public Order Act 1994


  Senior officer authorise stop and search within a specified area.

  Order will be in place for 48 hours, can be extended after a review.

  Does not need to have any grounds for reasonable suspicion.
• Stop and search

  Section 60 Criminal Justice and Public Order Act 1994


  R (Roberts) v Commissioner of the Police - does not amount to deprivation of liberty if the correct rules and procedures are followed proportionately and in accordance with the law.
• Arrest

  Section 24 PACE 1984 gives police powers to arrest anyone without a warrant before, during or after committing a crime if they have reasonable grounds to believe that the person has committed a crime.
• Arrest

  Safeguards

  . Tell them why and keep a record

  Christie v Leachinsky - if the charge is not known to the arrested person it will breach article 5.

  . Shimovolos v Russia - Police must not use their powers of arrest to fish for information.
• Arrest

  Safeguards

  . Give grounds to arrest in clear and unambiguous language. (s28 PACE)

  . Read rights and give caution s34 Criminal Justice and Procedure Act 1994.

  . Take to the police station straight away or as soon as possible. (s28 PACE)

  . Officer can use reasonable force, the officer decides whats reasonable.
• Detention after arrest

  Time Limits

  Summary - 24 hrs - no extensions.

  Triable Either Way - 24 hrs - extend by 36 hrs by senior officer.

  Indictable - 24 hrs - extend by 36 hrs by senior officer, extend further by 96 hrs by a magistrate.

  Terrorism - 24 hrs - district judge in Magistrates can extend to 14 days under the Protection of Freedom Act 2012.
• Detention after arrest

  Custody Officer

  Must monitor a detainee:

  Wellbeing check (6 hours after detention, 9 hour intervals).

  Custody record.

  Record all suspects belongings.

  Check the officers have complied with the correct rules during and after arrest.
• Detention after arrest

  Safeguards

  General wellbeing (clean well lit and ventilated cell, 8 hours sleep, meals and drink, 2 hour interview with break).

  Right to consult / deny access to solicitor.

  Right to refuse to answer questions.

  If 17 years old, appropriate adult present.

  Right to have someone informed.

  Right to phone call.

  Right to exclusion of unfairly obtained evidence.
• Detention of arrest

  In the event of an indictable offence a private phone call and access to legal advice can be delayed for up to 36 hours if a senior officer believes that contact with either will harm evidence or the investigation.