4 months ago


Deprivation of liberty

Deprivation of liberty Page 43 Deprivation of liberty is thus an important tool for police officers seeking to address the perceived risks posed by individuals to the community. In times of severe threat to the life of the community, it may indeed become the principal means of first response. 123 Those encouraging others to engage in riot or serious disorder may be dispersed but are likely to seek to regroup. But each deprivation of liberty needs to be judged upon its own merits. Not all cases of police detention, of course, involve suspicion of commission of an offence under criminal or administrative codes. Police officers may be required to act to safeguard the interests of the person being deprived of their liberty. A young child found wandering the streets alone, or a drunk person at risk to himself through his intoxication, also call for intervention on the part of police officers. This chapter examines the leading cases of the Strasbourg Court and associated European standards set by the CPT in respect of the use of detention and the associated rights that individuals who have been deprived of their liberty should enjoy. The chapter focuses upon the power to deprive an individual of his liberty, but other issues (covered in other chapters) also arise: for example, conditions of detention in police cells or the use of threats or unwarranted force (chapter 2) or the manner in which a suspect is questioned (chapter 4). Here, the discussion that follows focuses upon the use of deprivation of liberty, and thus considers the general structure and principles of interpretation applied by the European Court of Human Rights in interpreting Article 5 of the Convention. Protecting liberty and security of person: Article 5, European Convention on Human Rights The first substantive guarantees of the European Convention on Human Rights provide for the protection of physical and psychological integrity of the individual. The right to life (Article 2), the prohibition of ill-treatment (Article 3), and the safeguard against slavery or servitude (including human trafficking) (Article 4) are followed by a more detailed textual framework for the regulation of deprivation of liberty in Article 5 which recognises that police officers must have the power to detain individuals, but that this power must be exercised with restraint. 123 When there is a serious threat to the community’s well-being ‘in time of war or other public emergency threatening the life of the nation’, a State has the right to suspend temporarily (by way of ‘derogation’) certain individual rights under the European Convention on Human Rights by virtue of Article 15. Instances of use of the power of derogation inevitably have involved derogation of obligations under Article 5, and that the case law has examined whether such a situation existed, and whether any exercise of the right of derogation met the test of being ‘to the extent strictly required by the exigencies of the situation’.

The European Convention on Human Rights and Policing Page 44 The text of Article 5 is as follows: 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. The key question posed by Article 5 can be succinctly stated: is the loss of liberty authorised by law? But this is not only a matter for domestic law, for the question also arises whether the detention is also authorised by Article 5 which in essence is concerned with the question whether the detention is arbitrary in all the circumstances. Put simply, can it be shown that there are