So what exactly counts as a deprivation of liberty? The obvious example is putting someone in prison. But a control order requiring someone to live at a particular address with a curfew of 18 hours a day has also been held by the courts to be a deprivation of liberty.
The law distinguishes between a deprivation of liberty, which comes within Article 5, and mere restrictions on liberty, which do not. Whether something amounts to a restriction or a deprivation depends on the type of measure, its duration and effects and how it is implemented.
Article 5 limits the circumstances in which someone can be deprived of their liberty. To be permissible a detention has to come within one of the six exceptions set out in the Article. These allow, among other things, for people to be locked up as punishment for committing an offence, to be held on remand pending trial if there are good reasons for denying bail and to be arrested on suspicion of an offence. Article 5 also permits the detention of people that the Government wants to deport, and the compulsory detention of people suffering from serious mental illness. Whatever exception the State relies on, there must be a clear legal basis. It must also not be disproportionate.
Because depriving someone of their liberty is potentially so serious, Article 5 also includes several safeguards. Anyone arrested must be promptly told why, and what the charge against them is. It also gives everyone detained for a suspected offence the right to be promptly brought before a judge and the right to challenge the lawfulness of their detention before a court. Most types of detention must be subject to periodic review. Anyone unlawfully arrested or detained will be entitled to compensation.
Article 5 has proved crucial throughout the worst excesses of the last decade’s “War on Terror”. The Anti-Terrorism Crime and Security Act 2001, hurriedly passed within weeks of the 9/11 attacks in the US, was particularly problematic. Part 4 of the Act meant any foreign national in Britain suspected of being a terrorist – but not even charged, let alone convicted – could be indefinitely detained without trial if he could not be deported.
The Government argued it was allowed to derogate from Article 5 because the period following 9/11 amounted to a “public emergency threatening the life of the nation”. But the House of Lords disagreed because Ministers could not prove the measure was strictly required – especially as it only applied to foreign nationals and not British suspects. The Lords ruled it was a clear breach of Article 5 – declaring the measure incompatible with the HRA – and the law was later repealed.
Of course the Government has a duty to protect the lives and property of its people and certain rights will inevitably be interfered with as part of that duty. But it must do so without dismantling our fundamental freedoms in the process. Thankfully when Ministers do fall short in this respect, we have the Human Rights Act to protect us.
Article 5 has also proved an invaluable source of protection for vulnerable people suffering from physical and mental disabilities. Using Article 5, a challenge was brought in the UK courts against the actions of Manchester City Council in removing a man with severe learning difficulties from the care of his long-term guardian and placing him in local authority care without proper consultation and consideration. Thanks to the HRA this young man, who had not been in any way ill-treated by his foster parent, was able to return to his home and the local authority was forced to face up to and remedy a catalogue of failures.