Article 5: The Right To Liberty – And Arrest

Article 5 of the European Convention on Human Rights (1950) sets out the right to liberty of person. However, it is naturally qualified; whilst setting out the right of freedom of person, Article 5 also can not impede upon the right of the police to detain and arrest.

However, in what circumstances will an arrest be legal is made complicated by certain parts of the Article. The key clauses here are:

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:
(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
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.

A recurring trend has been for British police forces to detain people on the suspicion, belief or evidence that they are about to commit a crime. Whilst is it often quite sensible to arrest and detain people prior to any harm to others or danger to others, this pushes the legal boundaries. After all, can such an intention and capacity to commit a crime be proved in all cases prior to the event? On a point of law, the matter at question is not inchoate offences, but rather human rights.

British police forces can already stop people if they have suspicion that violence has occured, or will occur. Such search orders under Section 60 of the Criminal Justice and Public Order Act (1994) are very restrictive, though, and can only be used in certain times, places and scenarios. They have been challenged legally under human rights law – and have been found to be legal by a reluctant Supreme Court.

Related is recent litigation concerning Article 5. The police have in the past stopped and detained those who they had very strong suspicion were about to commit a breach of the peace. In many cases, the suspects were detained for several hours, then released without charge. Those and similar anti terror cases have given rise to leading case precedent such as Lawless v Ireland (No 3) (1961) 1 EHRR 15, Austin v Commissioner of Police of the Metropolis [2009] 1 AC 564, Nicol and Selvanayagam v United Kingdom, (Application No 32213/96) (2001) and Brogan v United Kingdom (1988) 11 EHRR 117. All of which found that such detention under suspicion only was essentially questionable; none of those cases set out the exact status of detention under suspicion only satisfactorily, giving rise to legal uncertainty today.

The moral issue is that Article 5 prevents and protects against arbitrary detention and arrest – comparable to habeas corpus. However, the police as a matter of practicality in many cases might need to arrest and detain a suspect wth limited suspicion, or indeed find that their initial suspicion was wrong, and release the suspects without charge a few hours later. The question is – is that legal?

Here, Article 5 provides both help and hindrance. Previous recent cases have preferred either 5(1)(c) or 5(1)(b). British law has a habit of switching between the two as a matter of legal ideology. Legal and police policy dictates that the rationale behind Lawless (1961) is followed. In Lawless, it was established that Article 5 permitted such deprivations of liberty
“[Only] when such deprivation [of liberty] is effected for the purpose of bringing the person arrested or detained before the competent judicial authority, irrespective of whether such person is a person who is reasonably suspected of having committed an offence, or a person whom it is reasonably considered necessary to restrain from committing an offence, or a person whom it is reasonably considered necessary to restrain from absconding after having committed an offence.”

In short, Lawless established that 5(1)(c) is to be followed relatively literally: the intention of any suspicionless detention should be to bring the accused before a court as soon as is practical. Other Judges and cases have disagreed, giving different, more nuanced interpretations of 5(1)(c). As such – the legality of such detentions is still unclear.

The latest attempt at a definitive legal answer was in R (on the Application of Hicks) v Commissioner of Police for the Metropolis [2017] (UKSC9). Here, Lord Toulson set out the dilemma that
(29) The fundamental principle underlying Article 5 is the need to protect the individual from arbitrary detention, and an essential part of that protection is timely judicial control, but at the same time Article 5 must not be interpreted in such a way as would make it impracticable for the police to perform their duty to maintain public order and protect the lives and property of others. These twin requirements are not contradictory but complementary…
(30) In balancing these twin considerations it is necessary to keep a grasp of reality and the practical implications. Indeed, this is central to the principle of proportionality, which is not only embedded in Article 5 but is part of the common law relating to arrest for breach of the peace.

The case concerned individuals who had been detained on suspicion of being about to commit a breach of the peace on the day of the Royal Wedding in 2011. They were later released without charge – and took legal action for an infringement of their rights under Article 5.

From the beginning, Lord Toulson finds that the police have an ancient right to arrest people who are about to breach the peace; that is not disputed. His supports the more nuanced interpretation of 5(1)(c), finding that
(38) In order to make coherent sense and achieve the fundamental purpose of Article 5, I would read the qualification on the power of arrest or detention under Article 5.1(c), contained in the words “for the purpose of bringing him before the competent legal authority”, as implicitly dependent on the cause for detention continuing long enough for the person to be brought before the court … [In] the case of an early release from detention for preventive purposes, it is enough for guaranteeing the rights inherent in Article 5 if the lawfulness of the detention can subsequently be challenged and decided by a court.

His verdict is to consider the arrests as legally in line with 5(1)(c). As such, Lord Toulson slightly moved away from the strict interpretation of Lawless. He supported the more nuanced view, that detention with an aim to bring the accused to court can be qualified. Lord Toulson also makes several interesting statements and summaries obiter dicta – including on Article 5(1)(b). His leading judgement in this matter will probably therefore provide more of a discussion on the exact nature of Article 5 vis a vis pre-emptive detentions than it was supposed to solve.

Despite a quantity of case law – now including Hicks (2017) – the exact application of Article 5 is still open to interpretation. One of the most fundamental of human rights, that of the right to liberty, is itself a prisoner of its own making. In the nature of the qualifications in Article 5, that right to liberty is a complete contradiction in terms.

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