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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PJS: Updated Privacy Laws for the 21st Century?

Celebrities live very much in the public eye, and are subject to intense media scrutiny. Be they actor or politician, or product of a talent show, the media is always around to report the latest celebrity news. Of course, whether the public needs or wants to know is a very different matter.

Sometimes, though, some celebrity gossip never makes it to press. Some celebrities do go to great lengths to protect their privacy, using a variety of methods, ranging from disguises – to the courts. The Supreme Court had to intervene recently to assess whether a recent celebrity indiscretion could be revealed to the British public. Currently, though, the details surrounding PJ S v News Group Newspapers Ltd [2016] UKSC 26 are protected by a court injunction.

The facts that are known about the case are as follows. PJS is married to YMA; both are “well known individuals in the entertainment business.” Between 2009 and 2011 PJS had an affair with a lady known only as AB. In January 2016, the Sun on Sunday newspaper, published by News Group Newspapers (NGN), informed PJS that it was going to publish AB’s story of the affair (and details of a liaison of PJS with AB and another person, CD). PJS responded by starting legal proceedings against NGN.

PJS claimed that publishing the story would be in breach of his legal right to privacy and confidentiality under Article 8 of the European Convention on Human Rights (ECHR). He sought an interim injunction to halt publication pending the outcome of a court hearing to determine whether publication was indeed in breach of PJS’s human rights. For the interim injunction, the court had to balance PJS’s Article 8 right to privacy, with NGN’s right to freedom of expression and freedom of the press.

The High Court refused to grant an interim injunction, considering that the public had a greater right to know about the affair, and NGN had a greater right to publish, than PJS and his children had to privacy. This was overturned by the Court of Appeal; an interim injunction suspending publication was issued, pending a full hearing on the case.

However, in April 2016, AB’s account of the affair was published, first in the United States, then in Canada, and then in Scotland. After all, the interim injunction was only binding in the jurisdiction of England & Wales. Although PJS’s lawyers managed to restrict publication overseas to hard copies only, and to prevent Internet publication in England & Wales by geo – blocking. Despite their best legal efforts, information of the affair has reached some websites in England & Wales, even though only briefly before being removed. As such, it is possible that PJS’s identity has been accidentally revealed in the UK.

On 12 April, NGN applied for the interim injunction to be set aside.The argument advanced was that, with the story published overseas, it was unlikely that the court would grant a permanent injunction. As such, the terms of Article 12(3) & 12(4) of the UK Human Rights Act (1998) governing such injunctions would not be met; meaning that the interim injunction should be set aside. As such, the Court of Appeal set aside the injunction. Such shuttling between the courts caused Supreme Court Judge Lord Mance to remark in his leading judgement that “some may still question whether the case merits the weight of legal attention which it has received.”

The matter came before the Supreme Court – who immediately restored the injunction pending a hearing into whether PJS could appeal the Appeal Court verdict. Hearing the case in May, the Supreme Court allowed the appeal.

With that permission granted, consequently PJS’s case against NGN will now be heard on appeal.

Much publicity has been given to the media and privacy aspect of the case – but that was not what the Supreme Court was overly concerned with. For the five judges (who allowed an appeal with a 4-1 majority, Lord Toulson in dissent) the case hinged on a point of law not necessarily related to privacy rules. The Court found that the Appeal Court headed by Lord Justice Jackson had effectively erred in law on several grounds regarding setting aside the interim injunction that had been granted. The point of law was Article 12 – not Article 8, or  Article 10.

Article 12 (and the case initially before the Appeal Court) concerns an injunction that is granted prior to a hearing. Under the ‎injunction, privacy is guaranteed whilst the case is being heard. However, an Article 12 derived injunction will only be granted if it is believed that the plaintiff’s case will succeed. For Lord Mance and the other justices, the central issue here was whether an Article 12 injunction should have been granted, pending a further appeal. In other words, is it likely that the trial judge will grant a permanent injunction? For the Supreme Court, it was found, on the evidence before them, that this was indeed so. As such, the temporary injunction remains – pending another appeal hearing on the matter of PJS.

As is often the case, the Supreme Court had to maintain a delicate balance between the public interest, and personal privacy. This was first memorably arrived at in the Douglas vs Hello! litigation at the turn of the century. The result of that was to establish that the legal doctrine of breach of confidence could encompass legal actions surrounding privacy under Article 8. PJS is but the latest of a long string of “kiss and tell” episodes that have (or have not) made it into the media, aided and abetted by that doctrine.

Regarding the “geo – blocking,” the infamous Spycatcher litigation of the 1980s is of relevance here. Approaching thirty years ago, it was eventually found that a controversial book by a former MI5 agent revealing all in the “kiss and tell” of the espionage world could be published in the UK, after it had enjoyed publication (and indeed literary success) in Australia and many other foreign countries. With its secrets already revealed, banning the book in the UK was (eventually) seen as pointless.

Another trial date is yet to be determined for PJS. The question is whether the Appeal Court will consider the case in line with Spycatcher, and allow publication on similar grounds – or will the verdict be in line with Douglas vs Hello!, and champion personal privacy? According to Lord Mance, there is another side to the proceedings. At p.44 he expresses the view that

“The Court will be criticised for giving undue protection to a tawdry story by continuing the injunction to trial. There is undoubtedly also some risk of further internet, social media or other activity aimed at making the Court’s injunction seem vain… On the other hand, the legal position, which the Court is obliged to respect, is clear. There is on present evidence no public interest … in the story, however much [NGN] may hope that one may emerge … and it would involve significant additional intrusion into the privacy of the [PJS], his partner and their children.”

For privacy related cases, PJS will become a leading authority. In the modern Internet era, where boundaries of jurisdictions do not overly apply in cyberspace, the case will also be very relevant. Although a very modern case, involving the Internet and celebrity gossip, the case ultimately hinges on a fresh interpretation of an old, similar case – Spycatcher.

Indeed, given the similarities, PJS is Spycatcher ‎for the 21st century – without the spies and national security angle, and with celebrity gossip instead. 

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