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Article 5: Right to Liberty and Security
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 reason 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.
Article 5 is a limited right. This means that you can be deprived of your right to liberty in the limited circumstances set out in the article. Deprivation of liberty can include detention for both long periods (for example, if you are in prison or are forced to stay as a patient in a mental hospital) and short periods (for example, if you are arrested). An important point to note is that Article 5 is not concerned with restrictions on freedom of movement. You must have been deprived of your liberty in order to seek Article 5 protection.
Drawing a distinction between restrictions on freedom and a deprivation of liberty is not as easy as it may seem. The ECHR has said that the difference between the two is “merely one of degree or intensity, and not one of nature or substance.” (Guzzardi v Italy 1980). In R (on the application of Gillan) v Secretary of State for the Home Department 2004 the House of Lords held that the power to stop and search under terrorism legislation generally did not involve a deprivation of liberty. If you are stopped and searched, your freedom of movement is restricted by the fact that you have been stopped and are kept waiting to be searched, but it is unlikely that this will amount to a deprivation of liberty.
As set out above, Article 5 is a limited right and your right to liberty can be limited in certain circumstances. For any deprivation of liberty to comply with Article 5 it must come within one of six sets of circumstances set out in paragraphs 5(1)(a) to 5(1)(f). The detention must also have a clear legal basis and it must be proportionate, that is, there must be an adequate reason for the detention and the detention should not be for an unreasonably long time. If you are detained, it is up to the Government to justify the detention rather than for you to show why you should be released.
If you are arrested, Article 5 requires that you must be informed promptly of the reason for the arrest and of any charge against you. Article 5 also requires that you are brought promptly before a judge and tried within a reasonable time or released pending trial.
Cases where the courts have found a breach of Article 5 include:
Article 5 is not concerned with the conditions in which someone is detained. There cannot be a breach of Article 5 where someone who is already in detention is placed in a greater degree of detention, for example where a prisoner is placed in seclusion, or is moved from an open prison to one with a higher security category. Such a situation may, however, raise issues under Articles 3 or 8.
Relevant sections:
(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 reason 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.
Article 5 is a limited right. This means that you can be deprived of your right to liberty in the limited circumstances set out in the article. Deprivation of liberty can include detention for both long periods (for example, if you are in prison or are forced to stay as a patient in a mental hospital) and short periods (for example, if you are arrested). An important point to note is that Article 5 is not concerned with restrictions on freedom of movement. You must have been deprived of your liberty in order to seek Article 5 protection.
Drawing a distinction between restrictions on freedom and a deprivation of liberty is not as easy as it may seem. The ECHR has said that the difference between the two is “merely one of degree or intensity, and not one of nature or substance.” (Guzzardi v Italy 1980). In R (on the application of Gillan) v Secretary of State for the Home Department 2004 the House of Lords held that the power to stop and search under terrorism legislation generally did not involve a deprivation of liberty. If you are stopped and searched, your freedom of movement is restricted by the fact that you have been stopped and are kept waiting to be searched, but it is unlikely that this will amount to a deprivation of liberty.
As set out above, Article 5 is a limited right and your right to liberty can be limited in certain circumstances. For any deprivation of liberty to comply with Article 5 it must come within one of six sets of circumstances set out in paragraphs 5(1)(a) to 5(1)(f). The detention must also have a clear legal basis and it must be proportionate, that is, there must be an adequate reason for the detention and the detention should not be for an unreasonably long time. If you are detained, it is up to the Government to justify the detention rather than for you to show why you should be released.
If you are arrested, Article 5 requires that you must be informed promptly of the reason for the arrest and of any charge against you. Article 5 also requires that you are brought promptly before a judge and tried within a reasonable time or released pending trial.
Cases where the courts have found a breach of Article 5 include:
- Where the law completely removed the entitlement to bail for someone charged with a serious offence who had previously been convicted of a serious offence (Caballero v United Kingdom 2000). The law has since been changed.
- Where a compulsorily detained mental patient was effectively required to show why he should be released, rather than the hospital having to show why he should continue to be detained (R v Mental Health Review Tribunal, North and East London Region ex parte H 2001). Again, the law has now been changed.
- Where an elderly, chronically ill woman was held overnight for 14 hours for refusing to give her name and address to a police officer (Vasileva v Denmark 2003).
- Where a person under a control order (pursuant to the Prevention of Terrorism Act 2005) was under a house curfew of 18 hours per day, without having been charged with any offence (Secretary of State for Home Department v JJ & Others 2007).
Article 5 is not concerned with the conditions in which someone is detained. There cannot be a breach of Article 5 where someone who is already in detention is placed in a greater degree of detention, for example where a prisoner is placed in seclusion, or is moved from an open prison to one with a higher security category. Such a situation may, however, raise issues under Articles 3 or 8.
Relevant sections:
- The rights of suspects
- The rights of prisoners
- The rights of people detained under the Mental Health Act 1983
