Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
20 Cards in this Set
- Front
- Back
- 3rd side (hint)
|
What does Article 5 say?
|
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:
article 5 1 (a)-(f) |
|
|
|
Article 5. 1 (a)
|
imprisonment post conviction.
|
|
|
|
Article 5 1 (b)
|
breach of court order.
|
|
|
|
Article 5 1 (c)
|
Arrest on reasonable suspicion/prevention
|
|
|
|
Article 5 1 (d)
|
Detention of minors
|
|
|
|
Article 5 1 (e)
|
Health Grounds
|
|
|
|
Article 5 1 (f)
|
Deportation/extradition.
|
|
|
|
what are the due process guarantees
|
Article 5 2 - give prompt reasons for arrest
Article 5 3- Be Brought to court within reasonable time Article 5 4- right to challenge detention Article 5 5- compensation for "victims" |
|
|
|
so with Article 5 two questions need to be asked
|
1) is the deprivation of liberty prescribed by law and within one of the permissible categories Article 1 (a-f) allowing a state to interfere with the right?
2) Even if a person is lawfully detained there is a need to ask: a) has there been inteference with one of the due processes 5 (2) -(5) b) if there is a breach is the applicant entitled to an enforceable right to compensation Article 5 (5). |
|
|
|
Name a case for Article 5 1 (c)
|
Fox, Campbell and Hartley v UK
held that: even in emergency situations reasonable suspicion is what is required. Facts or information would have to satisfy the objective observer that the person concerned may have committed an offence. |
Fenwick suggests that section 41 and Schedule 8 may be subject to Human Rights Challenges as they are not prompt enough.
|
|
|
Johnson v UK
|
continued detention in a mental health facility pending the allocation of post release facilities was a breach of Article 5 (1)
|
|
|
|
which case contrasts johnson v uk
|
W v Doncaster MBC
The continued detention of a restricted patient after a tribunal had ordered his discharge was neither unlawful under domestic law nor a breach of his rights under the European Convention on Human Rights 1950 Art.5 where the patient continued to suffer from a mental disorder requiring treatment or supervision |
|
|
|
Article 5 (3)
promptly bought before a judge |
Brogan v UK
4 days and 6 hours excessive- upper limit is 48 hours |
|
|
|
Article 5 (4) Right to challenge detention
|
hirst v uk
T and V v UK - no judicial control of detention. home secretary rather than the court decided the length of tariff to be served. |
|
|
|
is the arrest prescribed by law?
which test (exam hint, look at wording of the statute and the way it has been implemented by the public authority). |
Sunday times v UK
Clear Accessible and proportionate. precise- consider scope of legislation. linguistic ambiguities. Applied in an arbitrary manner- Gillan and Quinton b UK - stop and search powers. |
|
|
|
Derogation from article 5-
in emergency situations- case law |
A and others
Detention of non-nationals Guzzardi v italy- question of intensity when asking if there has been a deprivation of liberty. Re JJ- certain non derogating control orders did amount to a deprivation of liberty. |
|
|
|
Secretary of state for home department ex p E
|
able to leave home for a period of 12 hours without geographical restriction.
|
|
|
|
AA Home Department v AF & AM and AN
|
Controlee must have sufficient information about the allegation against him in order to be able to have fair legal process.
|
|
|
|
what is the maximum time allowed for detention after arrest
|
28 days allowed (schedule 8 of the Terrorism Act)
but remember only allowed 48 hours before suspect has to be put in front of a judge. |
|
|
|
basic duration of detention without charge is?
|
24 hours, can be increased to 36 hours by super intendant s ection 42 (1)
maximum period is 96 hours s 44 (3) (b) |
|
