Article 5:

• Liberty


  Used in the narrow sense of being under the direct physical control of another
• Engel v The Netherlands (1976): 'Liberty meant, "individual liberty in the classic sense, that is to say, the physical liberty of the person. It is not concerned with the broader ideas of liberty as such, as the sense of personal autonomy and the lack of psychological or social subordination"'
• Deprivation of liberty


  A question of 'degree and intensity' of the restrictions placed on the individual. There was a difference between restrictions and deprivation. It had to be severe constrictions to ordinary life to amount to a deprivation of liberty.
• Guzzardi v Italy (1981): 'Deprivation (lack of something/denial) of liberty was a question of 'degree and intensity' of the restrictions placed on the individual'
• Acid test for deprivation of liberty


  Whether the individual was 'under continuous supervision and control and not free to leave'
• Lady Hale: '"What it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities…the fact that my living arrangements are comfortable…should make no difference. A gilded cage is still a cage"'
• Detention on public health grounds

  Measure amounting to a deprivation of liberty must have a legal basis and be a proportionate response, concern a person with a genuine mental disorder, and provide legal safeguards for the person deprived of their liberty
• HL v UK (2005)


  • An autistic boy was informally admitted to a psychiatric hospital against the wishes of his carers, considered to be in contravention of Article 5(1) as there was no legal basis for his detention
• Grounds for detention under Article 5(1) of the European Convention on Human Rights

  • Detention after due process and linked to conviction
  • Non-compliance with court order or non-fulfilment of a legal obligation
  • Allows for detention of someone suspected of having committed an offence
  • Detention of a minor or for Educational Supervision
  • To prevent spread of infectious diseases, persons of unsound mind, alcoholics, drug addicts or vagrants
  • Lawful arrest or detention to stop a person unlawfully entering the country, or a person subject to deportation or extradition
• 5(1)(a) Detention after due process and linked to conviction

  • Stafford v UK (2002) - Convicted murderer was rejected for parole, as it was feared that would commit non-violent crimes. Considered a unlawful deprivation.
• Allows for detention of someone suspected of having committed an offence


  • Fox, Campbell and Hartley v UK (1990) - Arrested without being given a reason and without a warrant.
• 5(1)(d) Detention of a minor or for Educational Supervision

  • Koniarska v UK (2000) - Detention of a violent girl with psychiatric disorder which could not be treated was necessary and valid
• 5(1)(e) To prevent spread of infectious diseases, persons of unsound mind, alcoholics, drug addicts or vagrants

  • Health & Social Care Act 2008, Public Health Control of Disease Act (1984) and Coronavirus Act (2020) - Provisions which allowed for the 2020 national lockdown during Covid-19
• Lawful arrest or detention to stop a person unlawfully entering the country, or a person subject to deportation or extradition


  • Saadi v UK (2008) - Detention as part of a fast-track application process was compatible with Article 5.
• Determinate sentence


  A period fixed by the sentencing court
• Once a sentence has been passed by a court, and any appeal process has finished, there is no right to have the lawfulness of the sentence reviewed by another court
• Indeterminate sentence

  Offender is sentenced to a minimum term (the tariff) but will be released only when a body such as the Parole Board is satisfied that the offender is safe to be released
• Indeterminate sentences also cover situations where an offender is returned to prison after early release or when license conditions have been broken
• Under Article 5(4), actions related to indeterminate sentences will need regular review by the Court to ensure that continued detention does not breach the article
• James v UK (2012)


  • Procedural delays during process of deciding whether a prisoner should be released, held to be within breach of Article 5
• • Section 5(2) prompt reason must be given for detention when arrested:
  • Provisions for this Article are mostly covered by PACE (Police and Criminal Evidence Act) 1984 – a person being arrested must know why he or she is being arrested and be told in a language that they understand. ​
  • ​It does not have to be given in full, but it must be promptly (Fox, Campbell and Hartley UK (1990) the defendants were not informed until several hours afterwards and the ECtHR found that this was unacceptable.   ​

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• Kettling


  A group of people are held by the police in an area as a means of controlling a demonstration
• Kettling is a relatively new tactic and has no statutory authority
• Kettling does not easily fall into any of the exceptions under 5(1)(a)-(f)
• The police action in Austin v Commissioner of Police of the Metropolilis (2009)


  It was argued that this led to a deprivation of liberty under Article 5
• The House of Lords held that if the kettling was done in good faith, was proportionate and for no longer than was necessary, it would not violate Article 5
• The House of Lords held that there was no deprivation of liberty given in Austin v Commissioner of Police of the Metropolilis (2009)
• The court in R (Moos) v Metropolitan Police Commissioner (2012) made it clear that the police must anticipate an 'imminent breach of the peace before taking 'preventative action'
• The court in R (Moos) v Metropolitan Police Commissioner (2012) stated that Kettling should only be used as a last resort to prevent violence
• The police has no power to arbitrarily kettle protestors
• Control orders

  Enabled the Home Secretary to impose an almost unlimited restriction on any person suspected of involvement in terrorism
• Control orders were created in response to the case of A & Others v UK (2004)
• The process of detaining nine foreign terror suspects in prison without charge or trial was held to be unlawful
• Control orders avoided the need to prosecute such individuals within the criminal justice system, which was seen as controversial
• Terrorism Prevention and Investigation Measures (TPIMs)


  A lighter version of the control orders, still initiated by the Home Secretary and fall outside of the criminal justice system
• TPIMs do not fall into any of the categories of permitted restrictions within Article 5(1) (a)-(f)
• Restrictions under TPIMs

  • Electronic tagging
  • Overnight residence requirement
  • Restricted internet use, meetings and foreign travel
• TPIMs

  Limited to two years in length, but easily renewable if there is new evidence
• Secretary of State for the Home Department v JJ (2007) - controlees subjected to 18 hour curfew etc - held to be deprivation of liberty
• Section 5(3) ANYONE ARRESTED MUST BE BROUGHT PROMPTLY BEFORE A JUDICIAL OFFICER

  1. Promptly

  2. Independent judicial officer

  3. Reasonable time and bail