Chapter 11 Guidance on answering the exam questions

1. Advise the relevant officials about the implications of Article 5 in respect of:

(a)  Able, who is detained under Mental Health legislation. He was showing signs of great anxiety. He is detained in a maximum security mental hospital.

(b)  Baker, who is taking part in a political demonstration. The police decide to cordon off demonstrators into a small area. This is because they, the police, are concerned that, in an hour, a counter-demonstration may take place and violence result.

(c)  Charlie is an unlawful entrant into the United Kingdom. The government intend to remove him but are unable to do this because he might be tortured in his home country. The government, believing him to be dangerous, decide to detain him.

• This question requires you to display knowledge of particular aspects of Article 5.
• Able: a person detained under mental health legislation will be deprived of their liberty. Discuss deprivation of liberty and note that it depends on a range of factors and is not confined to imprisonment.
• Article 5(1)(e) expressly includes “persons of unsound mind”. However, any decision to detain him must be on a proper basis of law and it must meet the “Winterwerp” criteria. The person must be on unsound mind, detention must be necessary in the circumstances and the condition persistent.
• On the facts of the question the difficulty will be the need to show that the form of detention is appropriate. The ECtHR requires it to be therapeutic (and not merely punitive, for example) but the extent to which a particular form of treatment is mandated is unclear. It might be arguable that detention in a maximum security institution for a person suffering anxiety would be inappropriate – see LB v Belgium.
• Baker. This deals with the issue of the police tactic of “kettling” and whether it involves Article 5. This turns on whether there has been a deprivation of liberty, and the general test for this (e.g. in Guzzardi v Italy) should be discussed; in essence the difference between deprivation of liberty and restricting movement is one of degree. In later cases (e.g. de Tommaso v Italy the Court has stressed the importance of context; not just the individual’s circumstances.
• In Austin v MPC the UKHL held that there would not be a deprivation of liberty in the public order context if the police acted in good faith and proportionately with the purpose of protecting public order. The ECtHR, in Austin v UK, disagreed on the principle that deprivation of liberty could be determined by purpose; however a court can take into account the type of measure imposed and whether in the circumstances it is proportionate. If so, there has not been a deprivation of liberty.
• So, the police could be advised that if their action is proportionate there has not been a violation of Article 5.
• This would breach Article 5. Article 5(1) lays down the exclusive circumstances which allow deprivation of liberty and detaining a person without trial because they cannot be deported is not one of them. This was confirmed in the famous “Belmarsh Case” (A v SSHD).
• Article 5(1)(f) allows the detention of deportees – but only if they are in the process of being deported; which is not the case here.
• So the government would need to be advised that they should seek a derogation from Article 5 (under Article 15). But, again, this must be lawful in terms of Article 15 (a necessary way of meeting the needs of a war or public emergency). Again, in A, the government’s case failed.

2. Critically evaluate the provisions of Article 5 in respect of the detention of people on the grounds of mental illness. Consider in particular whether they meet the demands of modern approaches to mental illness.

• This question requires display of knowledge and understanding of Article 5 in the context of mental illness.
• Detention in a mental hospital or some kind is likely to be a deprivation of liberty. This concept needs to be discussed and the point made that there can be a deprivation of liberty even if a person is not imprisoned. It depends on the view taken of the cumulative effect of all the circumstances.
• Article 5(1)(e) allows persons of “unsound mind” to be deprived of their liberty. The term “unsound mind” is not defined but must relate to conditions generally accepted by the medical profession.
• Vitally is the point that being of unsound mind does not of itself justify detention. Detention must, in the circumstances be lawful (according to the autonomous Convention meaning of the term) and must satisfy the “Winterwerp criteria” – these should be spelled out: as well as being of unsound mind, detention of the person must be necessary in the circumstances and the condition persistent.
• The purpose of the detention must be therapeutic and, therefore, the institution in which the person is detained must be an hospital or other kind of therapeutic environment. However, the case law suggests that there is only limited ability on human rights grounds alone, for a person to insist on a specific form of treatment. Furthermore, the ECtHR has not insisted that a person can only be detained for treatment (which would not apply, therefore, to untreatable conditions); it would not be necessarily inconsistent with the Convention for a person to be detained for self-protection or the protection of others.
• Finally, detained patients must have regular access to a judicial body that can supervise the legality of their detention (including on those principles) and, if necessary, order their release either because detention is not lawful under domestic law or under Article 5.
• In conclusion you can argue that many of the provisions outlined above do seem to be consistent with modern approaches. In particular, the need for detention to be necessary, the link with a therapeutic environment and the need for proper and robust supervision. In the context of the second of these it may be appropriate to support the emerging case law that is paying closer attention to the quality and appropriateness of the particular nature and quality of the therapeutic environment in which the person is detained.