Article 5

• Art 5(1)


  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty
• Stafford v UK (2002)


  • A convicted murderer was rejected for parole, as it was feared he would commit non-violent crimes. This was unlawful deprivation.
• Detention of a minor s5 (1) (d)


  • By lawful order for educational supervision or to bring him before a court
• ‘A prescribed procedure’

  Any measure depriving a person of his liberty should only be carried out by someone or a body with the authority to do so and should not be arbitrary. A failure to allow a person to respond to the case against him may infringe Article 5(1).
• The right to liberty is qualified by other Convention rights such as the right to life (Article 2), the prohibition of torture (Article 3) and the prohibition of slavery and forced labour (Article 4)
• 5(1)(a)- Detention after due process includes detention after conviction for punishment.

  • Van Droogenbroeck v Belgium.
  • Stafford v UK
• Article 5(1)(b)- Allows for the lawful arrest or detention of individuals who breach court orders or fail to fulfil an obligation prescribed by law. Perks v UK
• Article 5(1)(c) - Allows for the lawful arrest or detention of a person suspected of having committed an offence. Fox, Campbell and Hartley v UK (1990)
• Article 5(1)(d) - Allows for the detention of a minor for educational supervision or bringing him before a competent legal authority such as a court. Bouamar v Belgium
• Article 5(1)(e)- Allows for the lawful detention of a person to prevent the spread of infectious diseases, and persons of unsound mind (Alcohol is). Also covers the provisions which allowed for the 2020 national lockdown during the COVID-19 pandemic. In HL v UK (2004), the detention of a patient with autism was held to be unlawful.
• Article 5(1)(f)- Allows for the lawful arrest or detention to stop a person unlawfully entering the country, or a person subject to deportation or extradition. Bozano v France
• Article 5(2): Prompt

  reasons given mostly covered in PACE 1984: to allow a person to know why he or she has been arrested in a language he or she understands. In Fox, Campbell, and Hartley v UK (1990), the ECtHR found that seven hours was an acceptable delay.
• Article 5(3): Brought promptly before a judicial officer

  1)Promptly: In Brogan v UK (1988), a period of four

  days and six hours between the arrest and being

  brought before a judge was too long.

  2 Independent judicial officer: The officer must not be involved in the investigation.

  3 Reasonable time and bail: There should be a

  presumption of bail which gets stronger as the detention continues. If denied, a court should give reasons why it is refused.
• Article 5(4)

  Everyone who is deprived of his liberty by arrest or detention can bring proceedings to have the lawfulness of his detention speedily decided by a court, and his release ordered if the detention is not lawful. Where a person is in continued detention, it must be periodically reviewed (Stafford v UK (2002)).
• what does the case of Stock v Germany 2005 say about deprivation?


  1)The objective element of a person's confinement to a certain limited place for a not negligible length of time; and

  2)The subjective element of a of a lack of consent; and

  3)That the state is responsible for the confinement.
• what does the case Gizzards v Italy 1980 say about deprivation?- When considering whether or not a restriction on a person's movement is serious enough to be a deprivation of liberty, the Court will look at the degree or intensity of the measure in question.

  To do this, they consider the type, duration, effects of and manner in which the restriction is implemented.
• Deprivation -shimovolos v Russia [1996]- A human rights protestor was arrested under threat of force several days before a summit between the European Union and Russia in order to prevent him committing "extremist offences".

  Held: due to the element of coercion involved, the short period of detention the applicant was subjected to amounted to a deprivation of liberty.
• Austin v UK- Will be a deprivation of liberty unless breach of peace imminent and used as last resort;
• Mengesha- Unlawful to take photos as a condition of release
• Care settings, case? What was lady hale quote??

  Cheshire west &  Chester CC v P (2014) the court had to decide P’s placement in the bungalow was deprivation of liberty; it if was, it would be require periodic review under the mental health Act 2007 Lady hale- The acid test in circumstances where a person has not consented to their living arrangements is whether the person is both "not free to leave" and under "continuous supervision and control".

  If this is the case, there will be a deprivation of liberty.
• A determinate sentence ?

  is a period fixed by the sentencing court. Once a sentence has been passed by a court, there is no right to have the lawfulness of the sentence reviewed by another court.
• Indeterminate sentences?

  are those where the 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. Also covered are situations when an offender is returned to prison after early release or when licence conditions have been broken. These are. considered executive actions which, under Article 5(4), will need regular review by a court to ensure that continued detention does not breach the Article.
•  In James v UK (2012)- procedural delays in deciding when a prisoner could be released. James could only be considered for release after attending rehabilitation courses, unable to do it as the prison authorities did not provide these courses. C was unsuccessful under domestic law but took his case to the ECtHR. Court  found that his rights under Articles 5(1), 5(4) and 13 had been violated. The key principle is: a person cannot be detained forever without a proper chance of release.
• imposing a whole-life tariff on prisoners in Vintner and Others v UK (2013) was not seen as a violation by the ECtHR as long as such sentences were subject to periodic review.
• Speedy decisions??

  Where liberty is at stake such hearings should not be delayed.

  ● In R v Secretary of State for the Home Department ex parte Noorkoiv (2002), held  that a Parole Board hearing 3 months after the expiry of a tariff period of a life sentence breached Article 5(4), even though this was a standard practice.

  ● In R (KB) v Mental Health Review Tribunal (2002), delays in hearing mental health cases were also in violation of Article 5.
• Article 5(5)

  This Article provides that everyone who has been the victim of unlawful arrest or detention shall have a right to compensation. This right is mandatory. Unlikely that compensation will be awarded for feelings of disappointment or frustration.
• Public order and crowd control

  ‘Kettling’ is where a group of people are held by the police in an area as a means of controlling a demonstration. It is a relatively new tactic used by the police, which has no statutory authority. It does not expressly fall into any of the permitted restrictions under Article 5(1)(a–f).
• Cases where kettling was used

  • Austin v Commissioner of Police of the Metropolis (2009) - protestors
  • R (McClure and Moos) v Commissioner of Police of the Metropolis (2012) - G20 protestors
• Austin v Commissioner of Police of the Metropolis (2009)


  • People were allowed to leave the 'kettle' only with permission but many were held for over seven hours
  • The HOL held that if the kettling was done in good faith, proportionate, and for no longer than necessary, it would not violate Article 5
  • There was deemed no violation
• R (McClure and Moos) v Commissioner of Police of the Metropolis (2012)


  • The court ruled that the police had acted unlawfully in 'containing' (or kettling) G20 protestors
  • Police must anticipate an 'imminent breach of the peace' before taking 'preventative action'
  • Kettling should only be used as a 'last resort' to prevent violence
  • The police have no power to arbitrarily kettle protestors
  • The High Court confirmed its legality under these conditions