Lecture notes
Article 5 ECHR Right to Liberty
Notes which combine the BPP study notes, lectures and points to note from tutorials. Takes you through the steps to answer a Article 5 question in an exam.
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CON & AD LAW: HRA ART 5Article 5 – Right to Liberty & Security
Discuss Preliminaries
1. Is your client a victim (ss 7(1) and 7(7) HRA 1998, Art.34 ECHR and Klass v Germany)?
2. Was the alleged violation committed by a PA (ss 6(1) or 6(3)(b) HRA 1998 and Aston Cantlow)?
3. Is the action within the one year time limit (ss 7(5)(a) and (b) HRA 1998)?
4. Does the court have jurisdiction to hear the claim (Art.1 ECHR)?
Consider the substantive issues: How many potential violations are there? Deal with them
separately
E.g. 1) X was arrested 2) X was detained 3) X was not told why he was arrested
Art 5(1): ARREST: ‘Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty (except in the following cases [Art 5(1)(a) to (f)]) AND in accordance with
a procedure prescribed by law’
- EXCEPTIONS TO ART 5(1): A person may be deprived of their liberty where that person is
being lawfully arrested and detained
Art 5(1)(c): 'for the purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence or when it is reasonably considered
necessary to prevent his committing an offence or fleeing after having done so'
Art 5(1)(f): to prevent his effecting an authorised entry into the country or of a person
against whom action is being taken with a view to deportation or extradition
Art 5(2): REASONS FOR ARREST: An arrested person must be informed promptly and clearly
of the reasons for their arrest and any charge against them
Art 5(3): PERIOD OF DETENTION BY THE POLICE: The right of a person arrested and
detained under Art 5(1)(c) is to be brought promptly before a judge
Art 5(4): RIGHT TO CHALLENGE DETENTION: A person who is arrested and detained 'shall
be entitled’ ('speedily') to challenge the lawfulness of arrest
Art 5(5): REMEDY: If a person is the victim of an Article 5 breach by the state, they are entitled by
the ECHR, Art 5(5) to claim an enforceable right to compensation. In the UK, however, due to
remedial provisions applying under s8 of the HRA 1998, this right would only come into play
if an applicant needed to take their case to Strasbourg
Limited right, subject to derogation in emergency situations
Lawful arrest allowed
, CON & AD LAW: HRA ART 5
Structure where there is a (fictional) statutory provision in UK law
QUESTION ON ARREST
STEP 1: Is Article 5 ECHR engaged and, if so, how is it engaged on the facts?
It is important to note that ECHR, Art 5 is not engaged unless a person has been deprived of
their liberty. Can they just walk away or is their freedom limited?
Apply to the facts – what has happened here to deprive X of their liberty?
- ARREST BY POLICE CONSTITUTES A DEPRIVATION OF LIBERTY
A question of degree or intensity of the restriction placed upon freedom of movement, and the extent to
which the state has control over the individual. Factors that may be considered include the type,
duration, effects, and manner of implementation of the restrictive measure in question. If the overall
impact of restrictive measures is not deemed sufficiently serious, no Article 5 protection will arise
Guzzardi v Italy
STEP 2: What are the relevant sections from Art 5 you will apply?
- In accordance with Art 5(1) ECHR
- PAs may deprive individuals of their liberty but only if:
It falls within one of the six permitted exceptions Art 5(1)(a-f) AND this action has been carried
out ‘in accordance with a procedure prescribed by law’ (‘PBL’)
STEP 3: Do the actions of the PA fall within any of the ‘limitations’ set out in Article 5(1)(a-f) relating
to ARREST?
If yes, there is no violation. If no, then proceed to the next step.
Remember Art 5 is a LIMITED RIGHT
The relevant possible limitation in this context of arrest will be Art 5(1)(c) which requires ‘reasonable
suspicion’ that an arrested person has committed or is about to commit the relevant offence. Police will
seek to argue that they were covered by Art 5(1)(c) in when arresting X – i.e. that he was reasonably
suspected of having committed an offence
Consider: have the police arrested X within the terms of Art 5(1)(c)?
- The case of Fox, Campbell & Hartley v UK established that the phrase ‘reasonable suspicion’
requires some OBJECTIVE EVIDENCE on the part of the police in relation to the suspicion. The
anti-terrorism legislation applying at the time in Northern Ireland was held to be incompatible with
Art 5(1) because there was no requirement for such an objective foundation for the suspicion; this
applied even in the context of what the UK Government described as an emergency situation in the
province at the time.
- Apply to the facts of the scenario:
State the law in the fictitious act, which allows for arrest – does it say reasonable suspicion? If
not this does not comply with Art 5(1)(c)
On what basis was X arrested?
Was there any sufficient objective evidence leading to reasonable suspicion that X committed or
intends to commit the offence in question?
- If there is no factual evidence, this will amount to a violation of X’s Art 5(1) rights.
STEP 4: Are the actions of the PA prescribed by law (ST v UK; Gillan) i.e. are they acting under a legal
basis which is accessible, clear and sufficiently narrowly prescribed to guard against arbitrary interference
with the rights in the ECHR?
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