8 months ago


Deprivation of liberty

Deprivation of liberty Page 55 ffwhat may be regarded as ‘reasonable suspicion’ will depend upon all the circumstances. ‘There may thus be a fine line between those cases where the suspicion grounding the arrest is not sufficiently founded on objective facts and those which are’. 153 That a suspicion is honestly held is insufficient to satisfy the standard: the suspicion must be ‘reasonable’, but need not be any higher at this stage of the investigation: ‘facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation.’ 154 ffdetention should cease as soon as the suspicion ceases to be ‘reasonable’. 155 This is to ensure that the continuation of the deprivation of liberty is not arbitrary. It follows that the fact that a person detained ‘on reasonable suspicion’ is not ultimately brought before a judge or is not subjected to criminal charges does not bring the detention beyond the scope of the sub-paragraph as long as the relevant level of suspicion existed at the outset of detention. Arrest or detention of a person to prevent the commission of an offence: Article 5(1)(c) This purpose is interpreted restrictively and only applies to detention to prevent the commission of a ‘concrete and specific offence’, 156 for too broad an interpretation would mean that ‘anyone suspected of harbouring an intent to commit an offence could be arrested and detained for an unlimited period on the strength merely of an executive decision’. 157 ■ In Ječius v Lithuania, domestic law permitted detention with a view to preventing the commission of offences. The applicant had been taken into custody to prevent his involvement in three specific offences of ‘banditism’, criminal association and terrorising a person. A month later, he was again charged with murder, a charge which had earlier been dropped. The Strasbourg 153 O’Hara v the United Kingdom, judgment of 16 October 2001 at paragraph 41. 154 Murray v the United Kingdom, judgment of 28 October 1994 at paragraph 55. 155 Stögmüller v Austria, judgment of 10 November 1969 at paragraph 4; cf De Jong, Baljet and Van den Brink v the Netherlands, judgment of 22 May 1984 at paragraph 44: ‘whether the mere persistence of suspicion suffices to warrant the prolongation of a lawfully ordered detention on remand is covered, not by [this sub paragraph] as such, but by Article 5(3), which forms a whole with Article 5(1)(c) ... to require provisional release once detention ceases to be reasonable ...’ 156 Guzzardi v Italy, judgment of 6 November 1980 at paragraph 102. 157 Lawless v Ireland (No 3), judgment of 1 July 1961 at paragraph 14.

The European Convention on Human Rights and Policing Page 56 Court observed that detention under the sub-paragraph could only take place within the context of criminal proceedings for alleged past offences, and thus preventive detention of the nature applied to the applicant was incompatible with Article 5. 158 ■ In Eriksen v Norway, the applicant had developed a tendency to become aggressive after suffering brain damage, and over a period of years had been detained in prison or in mental hospitals. Shortly before the expiry of authorisation granted by a trial court to use ‘security measures’ to detain the applicant, the police sought and were given approval to keep him in detention for several additional weeks to allow an up-to-date medical report to be obtained. The Court accepted that this period of detention fell within the scope of both sub-paragraphs (a) and (c). The former heading applied since the extension was directly linked to the initial conviction and imposition of ‘security measures’ on account of the applicant’s likely risk of re-offending even though the authority for these had expired. Sub-paragraph (c) also justified detention because of the applicant’s previous mental history and record of assaults, which had provided substantial reasons for believing he would commit further offences if released. 159 Arrest or detention of a person to prevent the fleeing of a criminal suspect Article 5(1)(c) A police officer may also detain an individual to prevent him absconding after having committed an offence. The danger of flight must be considered carefully in each case: such factors as the ease of leaving the jurisdiction, the possibility of a heavy sentence and the lack of domestic ties will all be relevant in assessing its likelihood and thus the ‘reasonableness’ of any State detention. 160 Detention of minors for educational supervision or for bringing minors before competent legal authorities: Article 5(1)(d) These grounds for detention have generated little case law. These are two distinct purposes, and the reference to detention of a minor ‘by lawful order 158 Ječius v Lithuania, judgment of 31 July 2000 at paragraphs 50-52. 159 Eriksen v Norway, judgment of 27 May 1997 at paragraphs 78-87. 160 Cf Wemhoff v Germany, judgment of 27 June 1968 at paragraphs 13-15. But see Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (2nd ed., 2009), at p 147: ‘the third ground of Article 5(1)(c) appears redundant since a person who is ‘fleeing after having’ committed an offence can in any event be arrested under the first limb.