What is the core right protected?
The right to liberty and security of the person
Are there any exceptions?
(a) detention after conviction;
(b) arrest or detention for non-compliance with a court order or in order to secure the fulfilment of any legal obligation;
(c) arrest or detention of a person on reasonable suspicion of having committed an offence to bring the suspect before the competent legal authority 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 for educational supervision or his lawful detention to bring him before the competent legal authority;
(e) the detention of persons to prevent the spread 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 unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
All need to be in accordance with a procedure prescribed by law.
Any subsidiary rights?
To be informed on arrest of the reasons for the arrest and any charge against him.((Article 5(2) ECHR.)) The information must be given promptly and in a language that the suspect understands. After arrest (under (c) above) the suspect must be brought promptly before a judge and is entitled to trial within a reasonable time or bail, for which sureties may be required.((Article 5(3) ECHR.))Anyone arrested or detained is entitled to take proceedings to challenge the arrest. These should be decided speedily by a court and release ordered if the detention is unlawful. ((Article 5(4) ECHR.)) Victim of unlawful arrest or detention must have the right to compensation.((Article 5(5) ECHR.))
What constitutes a deprivation of liberty?
The starting point is the ‘concrete situation’ of the person concerned and relevant elements will be the type of interference with liberty, duration, effect and manner of implementation.((Guzzardi v Italy (1981) 3 EHRR 333.))
Does this article have any relevance to the policing of demonstrators and the practice of ‘kettling’?
Yes. The tactic of ‘kettling’ involves containing crowds within a cordon and not allowing them to disperse. This was used at May Day riots on 1 May 2001; at protests against the G8 summit in 2005; and again at protests against the G20 summit in 2009 (at which video footage showed an assault on Ian Tomlinson by a police officer). The practice was challenged by two of those detained in the kettle in 2001. The courts have not been sympathetic and the House of Lords found that: ‘This was not the kind of arbitrary deprivation of liberty that is proscribed by the Convention, so article 5(1) was not applicable in this case.((Austin and another v Commissioner for the Metropolitan Police [2009] UKHL 5, per Lord Hope at 38.))
The House of Lords considered that the purpose of the deprivation of liberty was important in considering whether Article 5 applied. The case has been appealed to the European Court of Human Rights. The use of the kettling at the G20 summit was reviewed both by the Independent Police Complaints Commission and the Inspector of Constabulary. His report criticised the way that the tactic had been used and said:((‘Met’s G20 plan was ‘inadequate’, BBC, 7 July 2009.))
What the review identifies is that the world is changing and the police need to think about changing their approach to policing protests … We live in an age where public consent of policing cannot be assumed and policing, including public order policing, should be designed to win the consent of the public.
Peaceful demonstrators and innocent bystanders should be allowed a route out of the kettle.
What is its relevance to ‘control orders’?
Considerable. Control orders were introduced by the Prevention of Terrorism Act 2005 as, essentially, a modified form of house arrest. These can restrict:
•Possession and/or use of specified objects and substances (such as a phone)
•Use of specified services and/or facilities (such as the internet)
•Certain occupations and employment
•Carrying out specified activities
•Restriction on association and communications with specified people, or people in general
•Restriction of place of residence (for up to 16 hours), and visitors to the residence
•Movements at certain times of the day, or to certain places
•Surrender of passport A requirement to admit specified persons to certain premises
•A requirement to allow specified persons to confiscate and/or scientifically examine any object on premises owned by the subject
•A requirement to allow electronic surveillance to be carried out and photographs taken Any other restrictions whatsoever for up to 24hrs, when it is deemed necessary
The Act allows ‘derogating’ control orders to be made following a derogation from the ECHR but this power has not been activated. As at 14 May 2010, there were (according to MI5) 16 control orders in force – nine against foreign nationals. Control orders have been subject to considerable litigation, both about the degree of restriction and the extent to which a person should know the case against them. The House of Lords decided last year that sufficient information must be given in open court so that the nature of the case for the order is understandable to the person concerned.((AF and another v Secretary of State for the Home Department [2009] UKHL 28.)) This is likely severely to restrict the use of control orders but at least one has been made subsequently. ((”Sleeper cell plotter’ revealed in UK court papers’, BBC, 22 December 2009. ))