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.

Continue Reading

Europe, Human Rights, and Employee Surveillance

In a verdict that has attracted much criticism, the European Court of Human Rights (ECtHR) in Strasbourg earlier in January ruled that a company that read an employee’s Yahoo Messenger chats and messages sent during the time he was at work was acting within the law, and within its rights.

The case centred around a Romanian engineer, Bogdan Barbulescu, who had been using Yahoo Messenger on his work computer, during work hours. He had been using Yahoo Messenger for work contacts- but also had a second, private, Messenger account that he used to contact his family whilst at work. Having informed all staff that they were not allowed to send personal messages whilst at work, and having warned Mr Barbulescu in this regard previously, his employer had eventually taken the step of searching his work computer.

Whilst conducting their on-line search, the employer had read the messages on both the professional and the personal Messenger account. Mr Barbulescu was dismissed in 2007 for his breach of company policy. He took his former employer to court, claiming a breach of confidential correspondence and his right to private life under human rights law. Having lost his case in Romania’s domestic courts, he had appealed to the ECtHR.

In January, the Strasbourg court ruled against Mr Barbulescu. In their verdict, the judges fond that Mr Barbulecu had been in breach of company policies, and that his employer had every right to check a company provided device (the work computer). The firm also had every right to check on his activities whilst at work, and acted correctly when they examined his chat history, believing as they did that they were examining a work account only, Indeed, in their verdict, the ECtHR made little reference to the personal Yahoo Messenger account.

Further, as company policy in this regard had been clear to all employees, the ECtHR found that the engineering firm had acted proportionally and correctly, and that it was not “unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours”.

The verdict now leaves an open door for employers who wish to snoop on employee’s computers, emails and communications whilst at work. However, aware of this risk, and of the potential of future breaches of civil liberties, the judges were at pains to state that company policies should be in place to prevent such overt and unfettered snooping of employees. Their verdict hinged on the facts of the case- that the device was a work – provided device, and that the management had been checking a work related account. However, the judges made little speciation as what their verdict would have been if the device had been a personal device.

Despite those caveats, there remains great concern regarding the verdict. Various bodies representing both employers and workers, and privacy campaigners all had a similar message that such snooping is still totally unethical in most cases, and for employers to avoid such snooping.

The European Trades Union Confederation released a statement saying that the verdict should not be seen as a “green light… to start snooping” on staff. In the UK, according to TUC General Secretary Frances O’Grady “Big Brother bosses do not get the best out of employees… Staff who are being snooped on are less productive and less healthy.” The Chartered Institute of Personnel and Development echoed this sentiment. Institute of Directors Director General Simon Walker was even clearer: “employees should not be subject to Stasi-style surveillance at work… We would strongly urge businesses not to read an employee’s personal messages, apart from in the most exceptional circumstances.”

Those bodies were joined by civil rights campaigners. Big Brother Watch said in response that “none of us should ever assume that what we do online during work hours or when using devices owned by our employer, such as computers, tablets or mobile phones, is private – but, equally, no employee should be in fear of being monitored by their boss.”

Whilst the verdict might now be in place, and a reference for employers when deciding whether to carry out such surveillance on their staff, employers should well remember that it is not binding.

The verdict was handed down by the European Court of Human Rights. Although its verdict is binding upon the nation named in the case (in this case, Romania), in most cases each nation interprets and applies ECtHR rulings as is deemed appropriate under domestic laws and customs. As such, the verdict is not legally binding in the UK- but is highly persuasive when used in court domestically, and is now a point of legal reference.

Indeed, in some ECtHR signatory nations, email and other surveillance of employees is already legal. As such, the judges were merely agreeing with Romanian domestic law in this regard, and upholding the employers’ legal rights to conduct such surveillance. The verdict makes it clear that it is not in breach of an employee’s human rights to be the subject of such surveillance, if the surveillance is in line with company policy, and national law (as it was in this case).

Although the case of Mr Barbulescu does seem to open the way for employers to snoop upon employees- that is in reality not the case. What the case does do is once again open and ignite the debate upon personal privacy, human rights, and personal and professional lives. That debate will not be ended as simply as Mr Barbulescu’s case was in Strasbourg.

Continue Reading

Airport Stops & Media Freedom – David Miranda Before the Court of Appeal

Edward Snowden released classified information to the media in 2013. Among the global media outlets chosen was the British Guardian. One of those Guardian journalists involved in breaking the sorry, and in releasing up to thousands of classified security documents, was Glenn Greewald.

Later in 2013, his partner, Brazilian David Miranda, was stopped whilst entering the UK at Heathrow Airport. He was detained, and had his baggage and laptop searched. At the time, he was carrying material related to the Snowden revelations on an external hard drive, and in his laptop. Since then, Mr Miranda and civil liberties campaigners have seen this as a gross breach of human rights, and journalistic integrity. The case has preceded though the various British courts, with a three judge panel in the Court of Appeal finally finding in Mr Miranda favour early in January 2016.

Master of the Rolls Lord Dyson gave the verdict, along with Lord Justice Richard and Lord Justice Floyd. According to the three judges, essentially a key part of the Terrorism Act (2000), under which Mr Miranda was detained and searched, is incompatible with European human rights laws.

Mr Miranda was detained under Schedule 7 of the Act. Under the powers of Schedule 7, travellers can be questioned to ascertain whether they might be terrorists, or otherwise involved in terrorism. Whilst being detained, they have no right to legal advice, or to remain silent, and can he held for questioning for up to six hours.

Special Branch, and relevant authorities have had such powers since 2000. Since then, the number of stops has risen dramatically, to a peak of 85,000 in 2009/10. Whilst the Schedule 7 powers are predominantly unknown to the travelling public, there have long been concerns about the powers, and challenges raised to Schedule 7 stops. Further, there have been fears (justified or not) of officers profiling Muslims or other ethnic backgrounds, and gathering intelligence and information on such minorities with the searches.

Under Schedule 7, counter terror officers did not have to have any grounds to suspect the individual they were stopping, beyond the traditional “reasonable concern” that that is usual in legal matters. The definition of terrorism was also left slightly open to interpretation in Schedule 7. According to the Court of Appeal m, that definition can now be broadly defined as having some intent to cause a serious and significant threat to public safety, for example by deliberately endangering life.

The Court of Appeal admitted that the stop itself was perfectly legal, and in line with the relevant provisions of the Terrorism Act. However, Mr Miranda is a journalist. He had been stopped whilst in transit between Rio de Janeiro and Berlin after meeting the film maker Laira Poitras, who was another person involved in releasing the Snowden revelations. At that time, Mr Miranda had been carrying an estimated 60,000 classified UK government documents. He was due to hand these over to Mr Greenwald as part of the international media efforts regarding publishing Snowden’s information. The Guardian itself had paid for and arranged the trip and travel plans.

In this case, Lord Dyson found that the “exercise of the Schedule 7 stop power in relation to Mr Miranda on 18 August 2013 was lawful…But the stop power conferred by paragraph 2(1) of Schedule 7 is incompatible with Article 10 of the Convention in relation to journalistic material in that it was not subject to adequate safeguards against its arbitrary exercise.” The judges were referring to Article 10 of the European Convention on Human Rights (ECHR), which refers to Freedom Of Expression, and the right to receive and impart information and ideas.

Whilst legal, according to Lord Dyson, the stop procedures used by anti-terror police at ports and airports are not subject to safeguards and public scrutiny. With a lack of proper legal safeguards, the Schedule 7 powers are therefore considered as incompatible with human rights legislation.

The Court of Appeal was left with the unusual step of issuing a certificate of incompatibility in this matter. The certificate is an option judges have when they believe that the law is incompatible with the UK’s treaties and obligations regarding human rights.

In issuing the certificate, Lord Dyson and the judges stated that their “central concern is that disclosure of journalistic material [whether or not it involves the identification of a journalist’s sources] undermines the confidentiality that is inherent in such material and which is necessary to avoid the chilling effect of disclosure and to protect Article 10 rights.” If journalists and their sources cannot be certain of their confidentiality then the very nature of a free and independent press – so vital in a democracy- is threatened.

The Home Office continues to state that the Schedule 7 stop was perfectly legal – which indeed it was. Civil rights campaigners hailed the verdict as a victory for civil liberties, and journalistic freedom- which it is also.

As the government presses for even more data information, and surveillance powers, the Court of Appeal verdict once again brings the mind the very pressing need for balance, Balance between freedom of expression, civil liberties, media freedom, and national security.

Above all, the case is a triumph for the law. The Court of Appeal upheld the fact that the stops themselves are perfectly legal- but merely carried out in a questionable manner. Such subtleties define the English legal system, as does a desire to uphold the law of the land, whatever it may be.

Continue Reading