Article 5: The Right to Liberty and Security of the Person (AQA A-Level Law): Revision Notes
Article 5: The Right to Liberty and Security of the Person
Introduction to Article 5
Article 5 of the European Convention on Human Rights protects your right to liberty and security of person. This Article safeguards citizens when they are outside their homes, complementing Article 8 which protects citizens inside their homes.
Liberty refers to an individual's physical movement without interference by the state or other parties. It means you have autonomy or independence from arrest or detention, which is a fundamental right in a free and democratic society.
Security of person refers to an individual's physical and emotional self and their right not to be interfered with. It means your body, physical health and mental health cannot be interfered with without just cause.
Understanding the dual nature of this right
Article 5 protects two separate but closely linked rights:
- You are allowed to be 'at liberty' and free to conduct your day-to-day activities such as going to college or work
- You have the right not to have your body touched, held or restrained without just cause
Important distinction: Article 5 is more specific than the general right of freedom of movement. It specifically protects individuals against unlawful arrest, detention or imprisonment.
Article 5(1): The right to liberty and security of person
Article 5(1) establishes the fundamental principle:
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.
This means that while you have a fundamental right to liberty, this right can be restricted in cases where the law allows arrest or detention. However, any such deprivation must follow proper legal procedures.
Article 5(1)(a)-(c): Justified deprivation of liberty
The law recognises three main situations where deprivation of liberty is justified:
Article 5(1)(a): Lawful detention after conviction
This allows for the lawful detention of a person after conviction by a competent court.
What this covers in practice:
- Lawful imprisonment in an adult prison
- Detention in secure children's homes
- Detention in secure training centres
- Detention in young offender institutions
Critical requirement: The conviction must be by a 'competent' court, not a 'kangaroo' court or lynch mob. This ensures proper judicial process and fairness.
Article 5(1)(b): Non-compliance with court orders
This permits the lawful arrest or detention of a person for non-compliance with a lawful court order, or to secure the fulfilment of any legal obligation.
What this covers in practice:
- Where police arrest someone who has 'jumped' or 'skipped' bail while awaiting trial
- Detention for failing to comply with other lawful court orders
Article 5(1)(c): Arrest on reasonable suspicion
This allows the lawful arrest or detention of a person for the purpose of bringing them before a competent legal authority when there is reasonable suspicion of having committed an offence, or when it is reasonably necessary to prevent them committing an offence or fleeing after having done so.
What this covers in practice:
- Police can arrest a suspect who is about to commit an offence
- Police can arrest someone who is in the process of committing an offence
- Police can arrest someone who has committed an offence
Critical requirement: The arrest must be for the purpose of bringing the person before a 'competent' court.
Evaluation point on Article 5(1)
Despite the right to liberty and freedom of person, the judicial system is given significant power to restrict this right. Critics argue this creates an ambiguous situation where the rule of law can be avoided. However, supporters argue these restrictions are necessary to maintain public order and safety, provided they follow proper legal procedures.
Article 5(2)-5(5): Additional safeguards for arrested persons
Beyond the justified grounds for arrest, Article 5 establishes four crucial procedural safeguards to protect individuals who are arrested or detained.
Article 5(2): Right to be informed promptly
Article 5(2) states that everyone who is arrested must be informed promptly, in a language they understand, of:
- The reasons for their arrest
- Any charge against them
Key principle: A person must be informed as soon as possible that they are or have been arrested. The information must be provided in a language they can understand.
Practical application: This provision allows the police reasonable time to:
- Find a translator if required
- Provide the information after a physical struggle to arrest a suspect has ended
- Ensure the person understands the situation once it is safe to do so
Article 5(3): Right to trial within a reasonable time
Article 5(3) requires that everyone arrested or detained under Article 5(1)(c) must be:
- Brought promptly before a judge or other officer authorised by law to exercise judicial power
- Entitled to trial within a reasonable time OR release pending trial
- Release may be conditioned by guarantees to appear for trial (such as bail conditions)
Key principle: An arrested person must be brought to trial, bailed (with or without conditions) to appear at trial, or released within a reasonable period of time. This prevents indefinite detention without trial.
Article 5(4): Right to challenge detention
Article 5(4) provides that everyone deprived of their liberty by arrest or detention is entitled to:
- Take proceedings to challenge the lawfulness of their detention
- Have this decided speedily by a court
- Be released if the detention is found to be unlawful
Key principle: An arrested person is entitled to a swift trial to decide their innocence or guilt. This includes any appeals against conviction and/or sentence.
Article 5(5): Right to compensation
Article 5(5) establishes that everyone who has been the victim of arrest or detention in contravention of Article 5 shall have an enforceable right to compensation.
Important distinction: For a person who is lawfully arrested but found not guilty, there will be little, if any, possibility of compensation. However, if any of the rights under Article 5 are infringed, the arrested person is entitled to compensation, usually in the form of a financial reward.
Key cases on Article 5
Case Study: Stafford v UK (2002)
Facts: Stafford served a life sentence for murder, then was convicted of fraud when on licence. He returned to prison but was not released after serving the full sentence for the second crime. He sought damages.
Legal principle: There must be a sufficient connection between the original conviction and any continued detention.
Judgment: The ECtHR held there was a breach of Article 5. There was no sufficient connection between Stafford's original conviction for murder and a threat to commit further violent crimes after his release.
Case Study: HL v UK (2004)
Facts: H, who was autistic, had lived with carers for three years. He became aggressive and was detained under the Mental Health Act 1983. He was denied contact for three months with his carers and argued deprivation of liberty.
Legal principle: Even compliant patients must have recourse to challenge their detention.
Judgment: The ECtHR held there was a breach of Article 5. Despite being compliant during his detention, H had been deprived of his liberty as he had no recourse against being held under the Mental Health Act, such as challenging his detention or treatment given.
Significance: This case led to important reforms regarding the detention of vulnerable individuals who lack capacity to consent.
Case Study: Austin v UK (2012)
Facts: Three applicants (a protester, a shopper and an office worker out for lunch) had been 'kettled' by the police in Oxford Circus in London for seven hours following the May Day protest in 2001. They all argued breach of Article 5.
Legal principle: Proportionality must be assessed in cases of temporary restriction of liberty for public safety.
Judgment: The ECtHR found no breach of Article 5. While the situation of holding the applicants for between 5 and 7 hours was regrettable, it was proportionate to the avoidance of the risk of harm.
Significance: This case demonstrates that temporary restrictions on liberty may be justified when necessary to prevent serious public disorder.
Case Study: MH v United Kingdom (2013)
Facts: A woman with Down's Syndrome was placed in a secure hospital for her own safety under section 2 of the Mental Health Act 1983. The woman's mother had applied for her release, which was refused, and triggered an automatic detention for a further six months.
Legal principle: Vulnerable patients must have effective means to challenge their detention.
Judgment: The ECtHR held there was a breach of Article 5. The inability of the woman (or her mother) to challenge her detention under section 2 of the Mental Health Act violated her human rights under Article 5. The lack of remedies that would be available to a 'competent' patient breached Article 5(4).
Significance: This case reinforces the importance of procedural safeguards for all patients, regardless of their mental capacity.
Case Study: R (Roberts) v Commissioner of Police of the Metropolis (2015)
Facts: Roberts was detained by the police after giving a false name in order to avoid paying her bus fare. The area was known to be violent.
Legal principle: Police actions must be proportionate to their legitimate aims.
Judgment: The ECtHR held there was no breach of Article 5. The interference with her rights was proportionate to the police's legitimate aim of preventing disorder.
Significance: This case shows that brief detentions may be justified when pursuing legitimate policing objectives in a proportionate manner.
Exam guidance
Assessment: This content will be assessed in Paper 2 of the AQA A-Level Law examination.
When answering questions on Article 5:
- Always distinguish between the right to liberty and the right to security of person
- Identify which specific part of Article 5 is relevant (Article 5(1), 5(2), 5(3), 5(4) or 5(5))
- Consider whether any deprivation of liberty falls within the justified exceptions in Article 5(1)(a)-(c)
- Assess whether proper procedures have been followed
- Apply the principle of proportionality when evaluating restrictions
- Use case law to support your arguments
- Remember that exam questions will give clues (sometimes implied) about legitimate restrictions
- Base your answers on legal principles, not personal opinions about what should or should not be restricted
When evaluating Article 5:
- Consider the balance between individual liberty and public safety
- Assess whether the safeguards in Article 5(2)-(5) provide adequate protection
- Evaluate the effectiveness of the compensation provisions
- Consider whether the exceptions to the right are too broad or appropriately limited
- Examine the role of the courts in protecting liberty
Key Points to Remember:
- Article 5 protects two related rights: liberty (freedom of physical movement) and security of person (freedom from interference with your body and mental/physical health)
- Three justified exceptions exist: detention after conviction by a competent court, arrest for non-compliance with court orders, and arrest on reasonable suspicion of committing an offence
- Five key procedural safeguards protect arrested persons: the right to be informed promptly (5(2)), the right to trial within a reasonable time (5(3)), the right to challenge detention (5(4)), and the right to compensation for unlawful detention (5(5))
- Proportionality is crucial: any restriction on liberty must be proportionate to the legitimate aim being pursued, as demonstrated in Austin v UK and R (Roberts)
- Vulnerable individuals need special protection: cases like HL v UK and MH v United Kingdom show that proper safeguards must exist for those who lack capacity to challenge their own detention