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.
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:
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.
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.
In 2004, the European Court of Human Rights found that an autistic man with profound disabilities, HL, had been unlawfully deprived of his liberty in a hospital. The Court found that there were no safeguards in place to protect HL against arbitrary detention, especially given he lacked the capacity to consent to his treatment and had no opportunity to challenge the decision.
As a result of this landmark judgment, in April 2009 the Deprivation of Liberty Safeguards (DoLS) came into effect. The DoLS are intended to satisfy the procedural safeguards required by Article 5, e.g. by providing that any deprivation is kept under review.
Serious problems, however, remain. People who lack capacity and are being cared for and treated in care homes and hospitals are among the most vulnerable in our community – as demonstrated by the shocking Winterbourne View scandal. In practice, it appears the DoLS are not properly understood or simply not being applied. Judicial interpretation of the extent of the application of Article 5 in these types of cases has also been restrictive. This all means that the DoLS are providing protection in a very small number of cases.
Liberty is calling for a comprehensive, systemic review of how the DoLS operate in practice, and is advocating for a more expansive approach in the courts to ensure there is adequate protection for those under State care.