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Liberty Of Person

Liberty, Art 5 + The Restriction of Liberty

Kristian Humble

on 28 September 2016

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Transcript of Liberty Of Person

What is Liberty?
The term 'liberty' used in its general sense refers to basic principles of autonomy and freedom. A person is free to do what they choose and the right to individual freedom protects from state interference from:
- what we do
- who we associate with
- what choices we make
Deprivation of Liberty
For Art 5 to be applicable, a person must be deprived of their liberty. Not all restrictions on liberty will amount to a deprivation. It is clear in some cases (such as prison that a person is deprived of their liberty)
Therefore the right to liberty is not 'absolute' but should continue unless the individual breaks specific conditions. Principles may need to be compromised in times of emergency (and terrorism - we will discuss whether this is right?) but the basic values and rights of liberty must remain despite threats to national security and public safety.
Protection from arbitrary detention has been part of Britain’s common law framework since the 13th century. Today, the circumstances in which arrest and/or detention are permitted are set out in a number of Acts of Parliament and associated Codes of Practice.
The state cannot justify an interference with this right unless a limitation is allowed under the right itself or a state derogates (Art 15). The right to liberty protects everyone from arbitrary detention by the state. The right to security of the person is not extensively elaborated on by the ECtHR but places an obligation on the state to provide an explanation of where a person is when taken into detention (established in
Kurt v Turkey
Restricting Liberty
(the balance between the individual and the society)
Extended periods of pre-charge detention for those suspected of or reasonably believed to be involved in terrorism-related offences are longer than usually allowed under criminal law.
Control orders allowed considerable restriction on the liberty of people who were reasonably suspected of involvement in terrorism-related activity but had not necessarily been convicted of any criminal offence. They risked breaching not only Art5, but also Art 8, the right to a private and family life, and Art 6, the right to a fair hearing.
The Terrorism Prevention and Investigation Measures (TPIM) regime, which replaced control orders in 2011, still allows significant restrictions to be placed on people who are reasonably believed to be involved in terrorism-related activity, but have not necessarily been convicted of any offence. TPIMs risk breaching Articles 5, 6 and 8.
A person can be lawfully detained under Article 5(1)(c) on reasonable suspicion of having committed an offence. The Police and Criminal Evidence Act (PACE) allows stop and search when there are reasonable grounds to suspect that a person has stolen items, prohibited items or an offensive weapon. However, under domestic counter-terror powers, and section 60 of the Criminal Justice and Public Order Act 1994, people can be stopped and searched without reasonable suspicion. This risks breaching Article 5 rights and Article 8 rights, and potentially breaching Article 14, as people of certain ethnic and religious backgrounds are disproportionately likely to be detained under these powers.
• The current proposals to replace section 44 stop and search powers risk breaching Articles 5, 8 and 14.
• The power to stop and search at ports and airports under Schedule 7 of the Terrorism Act risks breaching Articles 5, 8 and 14.
• Stop and search under section 60 of the Criminal Justice and Public Order Act and section 1 of PACE risk breaching Articles 5, 8 and 14.
Article 5 specifically provides that a person can be detained ‘to prevent his effecting an unauthorised entry into the country’ or when action is being taken to deport or extradite someone. Any such detention must, however, be lawful.

Article 5: The right to liberty and security necessary and proportionate. There are various issues raised by the current system of immigration detention, particularly in relation to the treatment of children and vulnerable people, including victims of torture; flaws in the ‘fast track’ process; the excessive length of detention of some asylum seekers; and difficulties in obtaining bail.
Stop and Search
• Children continue to be detained for immigration purposes, which may breach their Article 5 rights.
• The increased use of the ‘fast track’ system for processing asylum applications risks breaching Article 5.
• Contrary to government policy, UK Border Agency staff at detention centres do not always follow the correct procedures to safeguard vulnerable individuals and remove them from detention. This has led to Article 5 breaches and, in some cases, a breach of Article 3.
• Many immigrants have been detained for lengthy periods without certain release dates, which can be unlawful under Article 5.
• Under Article 5, anyone deprived of their liberty must have the opportunity to challenge their detention. However, the bail process remains inaccessible to many immigration detainees, including those unlawfully detained.
Article 5 - Right to liberty and security

1 - Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)the lawful detention of a person after conviction by a competent court;

(b)the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law;

(c)the lawful arrest or detention of a person effected 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;
(d)the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
Article 5
Austin v Metropolitan Police Commissioner

[2009] 1 AC 564
- the HOL decided that the police had not breached any liberty provisions when they cordoned individuals off from mass demonstration which was threatening the peace. (Kettling used frequently)
Gillian and Quinton v UK
(2010) 50 EHRR 45
- European Court did not rule out the possibility that stop and search powers entailed a deprivation of liberty *Art 8 - also see
R (Gillian) v Commissioner of Police
[2006] 2 AC 307
A v Sec. of State for the Home Department
[2005] 2 AC 68
illustrates the difficulty of balancing fundamental human rights in times of national security. The decision in A shows the domestic courts (HOL) are not prepared to relinquish their duty to safeguard the liberty of the individual simply because the government pleads an emergency situation (terrorism)
Although the Art talks of liberty and security of person it is actually concerned with guarding against deprivations of liberty
Article 5 provides that everyone has the right to liberty and security. The right set out by Article 5(1) is limited, which means there are some circumstances set out in the Article and in domestic law, in which deprivation of liberty is lawful. Any such deprivation of liberty must be necessary and proportionate and should not continue for longer than necessary.
However under current legislation, terror suspects can be held in a pre-charge detention for longer than other suspects.
Purpose Of The Article
Lawful detention after conviction - detention after a competent court
(2005) 30 EHRR 42
- there had been a violation of Art 5(1) when a person had been detained in a mental hospital as an 'informal patient'
Lawful arrest - arrest of a person who has not complied with court order or obligation prescribed by law
Steel v UK
(1999) 28 EHRR 603
- Euro court taken a flexible approach - allowed individual being held if there was a real threat to peace
Protection of society - lawful detention of persons with infectious diseases, unsound mind, alcoholics, drug addicts

European Court has shown that there must be proof of the above conditions and it is generally unlawful to detain someone when this condition has passed. See
Johnson v UK
(1997) 27 EHRR 296,
Kolanis v UK
(2006) 42 EHRR 12.
Legitimate exceptions under Art 5(1)
L i b e r t y o f P e r s o n
However the ECtHR found that deprivation depends on the circumstances in each case:
Guzzardi v Italy
- suspected Mafia connections was subjected to live under curfew in a restricted zone. This was seen as a deprivation (see
Engel v Netherlands

) Also mental health cases -
HM v Switzerland
The UK has also ratified a number of international treaties supporting the right to liberty and security. The legality of any deprivation of liberty may be reviewed and challenged through the domestic courts. Britain has also ratified a number of international treaties supporting the right to liberty and security.
Control orders and their replacement
Terrorism Prevention and Investigation Measures (TPIMs)
impose significant restrictions on the liberty of persons who have not necessarily been convicted of any offence (these measures cannot last longer than 2 years)
In accordance with procedure prescribed by law
Conformity with the relevant domestic law is an important question for the state but the ECtHR will scrutinise the measure on certain grounds (
Winterwerp v Netherlands 1979
Legal basis for measure
The measure must have some basis in domestic law. See
Baranowski v Poland

where detention on remand was a practice that had not been based on any legal regulation in the state
Link between detention and reasons
The ECtHR has determined that a measure is not allowed id there no link between the detention and the reason given for it. Example = the ECtHR has consistently held that detaining prisoners under sentencing rules that allow for indeterminate sentencing are compatible with Art 5 as long as there is a link between sentence and reason for continuing detention (
Stafford v UK 2002
- danger to society)
Legal certainty
Any measure should be based on domestic law and should not be vaque, unclear or unpredicable. A person should be able to reasonably foresee what action may be taken by the state and when detention may occur.
- The applicant was held for mental health reasons but not under the statutory provisions that allowed non-consensual detention as the applicant lacked the capacity to refuse of grant consent. No safeguards in place (also see
Storck v Germany
Prescribed by Law
Police Powers
Detention under Art 5(1)
Crime (a) - (c)
Article 5(1)(a)
allows detention after conviction. However continuing detention after conviction cannot be arbitrary and must be linked to the conviction.
Article 5(1)(c)
allows detention where a person is arrested on reasonable suspicion of committing a criminal offence. In
Fox, Campbell and Hartley v UK

the applicants were arrested under a law which required the officer to 'genuinely and honestly' suspect the person of being a terrorist. The question here was whether this was enough to amount to reasonable and satisfy an objective observer. In this case not enough evidence to sustain a reasonable suspicion (compare with
Murray v UK
Non-compliance with court order or non-fulfillment of legal obligation
Article 5(1)(b)
This covers measures taken where a court order has already been made and may include civil orders such as matrimonial orders or psychiatric confinement (
). This legal obligation allows the police to detain for the administration of criminal law (e.g test for drink-driving).
Detention in the UK
Sec of State for the Home Department v JJ and Others 2007
All ER 489 /
Sec of State for the Home Department v E

All ER 27
In both cases the applicants were controlees held under control order regime as suspected terrorists. The control orders involved restrictions on liberty. The controless argued that the restrictions amounted to a 'deprivation' and so Art 5 was applicable. The HoL applied Guzzardi v Italy. Each case had to be decided on the facts given the circumstances of the measures taken. On the facts JJ restrictions amounted to a deprivation whilst E's did not
JJ and others

- 18 hr curfew - 12hr curfew
- vetted communication - vetted communication
- tagging - tagging
- lived in a flat chosen - lived in own home
by security forces
- not live with family - lived with family
- severe limits on - no restrictions in non
movement outside curfew hours
Held 3:2 majority that - Held unanimous did
order was deprivation not amount to deprivation
The presumption is that everyone has the right to liberty.

The onus therefore falls on the state to explain why detention/derogation of liberty in each case is justified, not on detainees/individuals to explain why they should not lose their liberty.

Article 5 imposes

a positive duty
that requires public authorities to take steps to guarantee people’s right to liberty and security.

a negative duty
requiring the state not to detain anyone arbitrarily for reasons not contained in domestic law and as set out in Article 5.
Presumption Of A Duty
Article 5 also offers procedural guarantees to prevent arbitrary detention. Article 5(2) requires the state promptly to explain to those detained the reasons for their detention in a language that they understand. Those detained must also be brought promptly before a court and have the lawfulness of their detention reviewed by an independent party.
For deprivation of liberty to be lawful, the state must show that it falls within one of the circumstances listed in Article 5(1). The procedure for any deprivation of liberty must also be set out in domestic law and the state must show that detention is necessary and proportionate to the aim that it wishes to achieve, and that it continues for no longer than necessary.
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