Article 5 evaluation:

• The fundamentals that are contained within Article 5. One of the major advantages of Article 5 of the Human Rights Act is that it contains fundamental values of liberty of the individual and the control of arbitrary (based on a whim) state power. This was shown in R (Miller) V PM, where Parliament was progued by the Queen to close Parliament so that they can pass the Brexit legislation without consultation. This was considered unlawful in the eye of the courts. This prevents any parliament or government going above what they have been elected to do for the population that they represent.
• However one of the drawbacks of this system is that there has been a high degree of flexibility given to the state when preventing terrorism. This was shown in A & other V UK (2004), where it was held that the process of detaining nine foreign terror suspects in prison without charge or trial was unlawful. This cases shows us that there could be an increase in the amount of police powers being abused.
• Vulnerable claimants One of the Benefits of Article 5 is that there is a high amount of protection for vulnerable claimants. This was shown by Lady Hale in Cheshire West was unequivocal about it “a gilded cage is still a cage”. Her reasoning was that the vulnerability of such patients means that the court should take a cautious approach when assessing any issue involving their rights. This means that there is a fair balance between the parties due to the different rights being met and agreed to.
• However, if people of unsound

  mind feel incarcerated and do

  not choose to live within the

  care homes that they find

  themselves in, potentially all of

  them may fall within a

  contravention of Article 5.

  Which means that it puts too

  much pressure on different

  states to provide adequate

  accommodation for the people

  with difficulties. Thus leading

  to an unfair balance between

  the different parties.
• Violations of Article 5: Every state operates a criminal justice system, which involves arresting and detaining large numbers of citizens. This means that the chances of breaching this Article are high and states must be vigilant.
• However Article 5 is second only to Article 6 – the right to a fair trial – in the number of violations registered in the European Court ofHuman Rights. Between 1959 and 2019 there were 3,982 violations registered. The biggest transgressor was the Russian Federation with 1,121 violations, followed by Turkey with 771. The UK registered a total of 70 violations and Sweden and Denmark only 2. These statistics reveal that protecting the right to freedom remains an urgent priority of the ECtHR.
• Deprivations or restrictions? Article 5(1)(e) does permit the detention of those with infectious diseases, persons of unsound mind, alcoholics, drug addicts and vagrants. The idea behind this was to protect the public from dangerous behaviour but also for their own benefit and safety.
• However, in reality, to detain a drug addict or alcoholic would need a high level of justification and the term ‘vagrant’ shows that the words used in legislation that is over 70 years old, is outdated in places.