law paper 3

• What type of right is Article 5?


  limited right
• What does Article 5 protect citizens against?

  arbitrary arrest or detention
• What must the state do if they wish to detain someone?

  Do it by a 'prescribed procedure' and the person must have authority to do so- only then will detention be lawful
• What did Lady Hale quote?

  "the fact that my living conditions are comfortable should make no difference. A gilded cage is still a cage"
• What did Lord Hope describe deprivation as?

  "A person can be deprived of his liberty even if his departure is not prevented by a locked door or other physical barrier"
• What is a deprivation of liberty (3 bullet points)

  1. A person is detained for a period of time

  
  

  2. the person detained does not consent

  
  

  3. the reason for the detention is set by the state
• When can people's liberty be deprived? (6 cases)

  1. after conviction in a court

  
  

  2.because of failure to comply with court

  
  

  3. in order to bring before a court

  
  

  4. for educational purposes

  
  

  5. to prevent spread of infectious diseases+ persons of unsound mind

  
  

  6. To stop unauthorised entry to a country or to lawfully deport someone
• Which case showed being restricted to an area and being under strict supervision can amount to a deprivation of liberty?

  Guzzardi v Italy
• Which case showed holding suspected terrorists (even though they had not committed crimes) was an unlawful deprivation?

  A v Secretary of State for the Home Department
• What are control orders

  A system where terrorist suspects are not held in prisons, but have restrictions
• What was issued in the case A v Secretary of State for the Home Department?

  A declaration of incompatibility
• What kind of restrictions can terrorists have under control orders?

  - A residency order (told where to live)

  
  

  - strict curfews

  
  

  - travel bans

  
  

  - internet ban

  
  

  - tagging
• What happened to many restrictions under control orders?

  proved to be problematic and some of them an unlawful deprivation of liberty
• Which case showed an 18-hour curfew, authorised visitors and severe movement limits were a deprivation of liberty?- terrorist suspects


  Secretary of State for the Home Department v JJ
• Which case showed that a 12-hour curfew and no other restrictions did not amount to a deprivation of liberty- terrorist suspects


  Secretary of State for the Home Department v E
• What did the government replace control orders with in 2012?

  TPIM's- terrorist prevention and investigation measures
• What are TPIMs?


  Lighter version of control orders, they allow suspects access to the internet and are limited to 2-year duration
• What are the arguments against TPIM's?

  - enable the Home Secretary to impose almost unlimited range of restrictions on suspects

  
  

  - unfair, innocent people should not be subjected to years of punishment without trial

  
  

  - go against British traditions of justice and liberty, undermine the presumption of innocence+ right to fair trial
• What does the mental capacity act 2005 state


  During provision of care+ treatment to adults it may be necessary to treat them in ways that amount to a deprivation of liberty
• When deciding on care that may be a deprivation of liberty for mentally incapacitated adults, what must be done?

  - regular assessments to see if restrictions can be reduced

  
  

  - when deciding on care plan all medical staff must check to see what extent liberty is being deprived
• Which case showed the ECtHR said there is no requirement for physical barrier to be present for there to be a deprivation of liberty?

  JE v DE
• Which case showed that constraining an adults movement can be an unlawful breach of liberty?

  Chesire West and Chester Council v P
• What did P+Q v Surrey Council lead to the use of?

  The acid test, which establishes whether someone is being deprived of their liberty in care/mental health cases
• What are the two questions of the acid test?

  1. Is the person free to leave?

  
  

  2. Is the person subject to continuous supervision and control?
• How does the court decide if a medical patient is experiencing deprivation of liberty?

  - Is individual happy about confinement?

  
  

  - is a guardian happy about the confinment?

  
  

  - is medication used to stop the individual expressing himself?

  
  

  - are living arrangements normal for a person with those needs?

  
  

  - Does individual have an opportunity to leave for recreation?

  
  

  - how long is the detainment?
• What can the court do in cases of unlawful deprivation?

  Award damages or make a declaration of incompatibility
• What Article 5 rights can be limited during crowd control?

  During demonstrations, police will temporarily kettle demonstrators
• For kettling, what must the police be fearful of?

  Breach of the peace, serious criminal damage or acts of violence
• Why can kettling be seen as a breach of article 5(1)?

  Can be seen as an unlawful deprivation of liberty
• What did Austin v Commissioner of police set out?

  No violation of Article 5 if kettling:

  - done in good faith

  - proportionate

  - no longer than necessary

  - did police have reasonable belief to an imminent breach of pace
• Which case showed kettling should only be used as a last resort when situation is about to turn violent?

  Moos v Metropolitan Police Commissioner
• Which case showed police can demand names/addresses, but not allowed for taking+ retention of photos of people who haven't been arrested?

  Mengesha v Metropolitan Police Commissioner
• Which act governs the stop and search?

  Police and Criminal Evidence Act 1984 (PACE)
• What must the police have for stopping you?

  1- police must have reasonable grounds under s1 PACE to stop and search someone
• What counts as reasonable grounds for stopping and searching someone?

  Reasonable grounds for suspected carrying:

  - drugs

  - weapon

  - stolen property

  - sometimes that could be used to commit crime
• How is it judged as whether it is reasonable to stop and search someone?

  What an ordinary police officer with all the information would consider reasonable
• What must the officer do when stopping/searching someone

  2- must give details to the person and tell them the reason
• What does s.60 of the Criminal Justice and Public Order Act give police the right to do?

  Stop and search people without suspicion
• When stopping and searching without suspicious, what must the police do and have?

  gives the right to search people in a defined area at a specific time IF they have good reason to believe

  - serious violence will/has taken place

  - person is carrying offensive weapon that has been/might be used
• For s.60 stop and searches, what authority must be given?

  Authority from a senior police officer