Liberty - Protecting civil liberties, promoting human rights

Deprivation of liberty

What constitutes a deprivation of liberty will depend on the circumstances.  Obvious cases are absolute deprivations (such as imprisonment or forced detention).  Article 5 is not concerned with mere restrictions on liberty of movement.  The difference between restrictions on liberty and deprivation of liberty is one of degree or intensity and depends on the type of measure imposed, its duration and effects and how it is implemented. 

Exceptions

A person can only be lawfully deprived of their liberty when this is done in accordance with law, is proportionate and carried out in the following circumstances:

• detention following court conviction;
• arrest or detention for failing to observe a lawful court order or to fulfil a legal obligation;
• arrest or detention on remand – i.e. to bring a person before the courts if reasonably suspected of having committed an offence; if reasonably necessary to prevent the commission of an offence; or to prevent a person escaping justice (but not preventative detention).  Detention must be proportionate in the circumstances;
• detention of children by lawful order for educational supervision or in secure accommodation, care etc;
• detention which is lawful, necessary and proportionate to prevent, as a matter of last resort, the spread of infectious diseases, lawful detention on mental health grounds or other like grounds;
• arrest or detention to prevent unauthorised entry into the country or for deportation or extradition.  Detention will cease to be lawful if proceedings for deportation or extradition are not actually in process or not carried out diligently.

Procedural safeguards

Article 5 also includes a number of procedural safeguards for anyone who is arrested or detained.

Reasons to be given for detention

Article 5(2) requires that anyone arrested must be promptly informed as to why he or she has been arrested and what the charge against them is.  This must be conveyed to them in a language which he or she understands.  The purpose of this requirement is to enable the person to challenge the lawfulness of their arrest.  This requirement is not only limited to the criminal context but also applies to detention on mental health grounds and immigration detention etc.

Brought before a court

Article 5(3) gives everyone arrested or detained on suspicion of having committed an offence the right to be promptly brought before a judge.  This is intended to impose a strict time limit on pre-charge detention.

There is also an entitlement to trial within a reasonable time and release on bail.  The presumption is that bail should be granted and if it is to be denied it must be justified by relevant and sufficient reasons.

Right to go before a court

Article 5(4) provides that everyone deprived of their liberty is entitled to bring court proceedings to challenge the lawfulness of the detention.  Such a challenge must be speedily decided by a court and if the detention is ruled unlawful his or her release must be ordered.  If detention is ongoing this provision requires regular review of the lawfulness of the detention.

Victims of unlawful detention entitled to compensation

Article 5(5) provides that victims of unlawful arrest or detention have an enforceable right to compensation.

Case study

 

The Anti-Terrorism Crime and Security Act 2001 was passed within weeks of the Twin Towers atrocity.  Part 4 of the Act provided that any foreign national who was suspected of being a terrorist (but not convicted or even charged) could be indefinitely detained without charge or trial if he or she could not be deported. 

 

The Government acknowledged this measure breached the right to liberty, but sought to derogate from its obligations under the Convention.  The House of Lords held that the derogation was invalid as the Government could not show that the measure was strictly required, particularly as it only applied to foreign nationals and not UK suspects.

 

The House of Lords held that this measure was a clear breach of the right to liberty and was also discriminatory.  The Law Lords upheld the fundamental nature of the right to liberty noting that indefinite detention without trial wholly negates the right to liberty for an indefinite period. 

 

The House of Lords made a declaration of incompatibility, and the law was repealed in response.