Christmas Rights – Article 5 Right to Liberty and Security of person

Our right to liberty and security is set out in quite a lengthy manner:

1              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:

(a)          the lawful detention of a person after conviction by a competent court;

(b)          the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)           the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence 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 by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)          the lawful detention of persons for the prevention of the spreading 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 unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2              Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3              Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4              Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5              Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

What does this mean?

I imagine that (like me), the thought of dissecting this article bit by bit to truly understand its nature is almost enough to make you close the page and get back to seeing what Kylie Jenner was wearing today. So, to save you the trouble (and to save you from the never-ending storm of pointless Kardashian news) I’ve set out the main aims of the article here:

  • This right to liberty that Article 5 affords us is there to protect our ‘physical’ liberty, ensuring we are not deprived of it for no good reason. The best example of a deprivation of liberty is probably being imprisoned following conviction (although this is not the only form it can take).
  • Determining whether or not there has been a deprivation of liberty requires a consideration of a number of factors such as duration and effects of deprivation, as well as courts considering the overall scenario for what it is (this is shown in the case of Guzzardi v Italy).
  • But, what if the ‘victim’ thinks it is deprivation, but the person supposedly depriving the victim of that liberty doesn’t? Confusion such as this often occurs (perhaps not if the victim is locked in a cell, but there are less extreme examples) – so the courts have taken to considering whether there is a deprivation of liberty objectively (ie from the reasonable person’s perspective) and subjectively (ie from the victim’s perspective). Objectively, it will look at whether the victim had opportunities to leave if they wished, were they coerced and controlled? Subjectively, it’s more simply asking “did you feel like you were deprived?”

Apart from understanding what the right is actually to, there are also provisions above which identify rules to ensure that exceptions to this right are carried out correctly and fairly. This is because it is a ‘limited right’ meaning if you are to infringe this right legally, it must be done so perfectly. Article 5 represents an incredibly important right in a functioning democratic society, as it ensure we have the freedom to roam and the choice of movement we are afforded as free citizens. This right is present in the Magna Carta, the US Declaration of Independence, as well as numerous other constitutional documents worldwide. To infringe that is necessary to preserve the security of the free citizens sometimes, but it is as important to ensure this power is not abused.

The recent case of Shaker Aamer perfectly highlights the concerns of such abuses. Mr. Aamer (in case you don’t know) was detained in Guantanamo Bay for 14 years on suspicion of numerous terrorist links and activities. However, Shaker was never tried for such suspicions; no evidence was ever considered viable to lock him up for more than the normal period allowed for the police to decide whether you can be charged or not (this period is 14 days if you are arrested under the Terrorism Act now). Yet, he was only released from prison last month, with no criminal conviction to his name regardless of his time in detention.

To deprive someone of that freedom of liberty is incredibly worrying when there is no grounded reason for doing so – especially in a society that emphasises our freedom to live and prosper (shout out to Spock).

Cases have been considered involving security at airports, placing people in psychiatric care institutions and containment during public protests – all to ensure powers to deprive liberty are not abused, in the interests of protecting our ability to live freely. After all, the right to liberty is one of the foundational rights for ensuring we can enjoy the rest of our rights and freedoms.

Finally, it is worth mentioning that although many of the numerous cases considering this area consider the State’s positive obligation to refrain from infringing this right to liberty, there is also an obligation for them to protect us from other’s who may infringe them (El-Masri v FYR Macedonia). If the authorities knew, or ought to have known that there may be a deprivation of liberty that is not lawful, they must take reasonable steps to prevent it occurring (Storck v Germany).

So, as I hope I have communicated clearly enough, this right is one of incredible importance and any inconsistencies or incompatibility with the requirement set out in the article itself, as well as the interpretations of the European Court of Human Rights completely destroy the very purpose of the right (Kurt v Turkey). The UK have an infinite number of policing procedures to ensure any deprivations of liberty are lawful and not intruding on this right, as they are required to do (as you can probably tell by now if you are keeping up with the series, laws engaging these rights plays an incredibly crucial role in supporting the maintenance of these rights) and are generally very good at supporting our right to liberty. However, as the case of Mr Aamer shows above, it is not perfect and improvements can be made.

Yet another right done and we’re cruising through our Christmas Rights series! I really appreciate everyone who is continuing to read the THWBlog and would love for you to let me know if there are any improvements you would like to see made, as well as sharing with your friends and family!


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