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1. What are the exclusive purposes for which a person can be deprived of her or his liberty compatibly with Article 5?
These are as listed in Article 5(1)(a)-(f). Broadly: after conviction, to fulfil a legal duty, after arrest, children for educational purposes, the mentally ill and those facing deportation.
2. How does the ECtHR define ‘deprivation of liberty’ in contrast with restrictions on movement?
This is a matter of degree (the ECtHR, in particular, is distinguishing deprivation of liberty from interferences with freedom of movement, protected by Article 2 of Protocol 4 – which does not apply in the UK). Whilst the core cases is confinement in prison, a combination of other factors may mean that a person is deprived of his or her liberty even if they are not actually in prison. Increasingly, the Court considers the context and circumstances of the applicant.
3. Does the power of ‘stop and search’ raise issues under Article 5?
This is not fully resolved. In some circumstances the length of the stop or other circumstances will mean there has been a deprivation of liberty. If so the courts may well treat the stop as in order to obtain the performance of a duty required by the law (Article 5(1)(b). If it is not, then there would be a breach of Article 5; if it is then the stop would not be a breach unless it was disproportionate and hence not on a basis of law as required by Article 5 throughout.
4. What, in the context of Article 5(1)(c) is meant by ‘reasonable suspicion’?
A complex term discussed in Fox et al v UK. In particular, the suspicion must be honestly held and have some kind of objective basis in terms of facts and information. A mere hunch may not be enough. It is not a hugely demanding requirement and can vary with circumstances.
5. How does the ECtHR define non-arbitrariness in the context of Article 5?
Deprivations of liberty must not be arbitrary. This idea pervades the Convention. It means that the power to deprive a person of his or her liberty must not only be lawful but be done for a proper purpose (only one of those listed in Article 5(1)(a)-(f) and, if necessary, subject to adequate safeguards.
6. How specific is the information that needs to be given to meet the requirements of Article 5(2)?
It need not be legally precise but it must give the person sufficient information in simple and non-technical language so that she or he knows the reason for her or his arrest and is able to make a legal challenge if appropriate.
7. What are the main requirements for judicial supervision of a deprivation of liberty?
The individual must have prompt access to a judicial body which, at least, works on the basis of a fair legal process (i.e. involving an adversarial process and equality of arms) and has the power to make appropriate orders (including, if necessary, the power to order release).
8. In Brogan v UK, the courts discussed the time scale of being brought before a competent judicial authority—what is the judicial approach to ‘promptness’?
The ECtHR thinks of itself as a court of law dealing with allegations of abuse of rights of particular individuals. It tends to decline to make abstract rulings. So it does not lay done specific time periods. Normally, a person should be subject to judicial supervision within a day or so; in the context of counter-terrorist measures the Court thought about four days was too long in Brogan.
9. Explain the grounds on which bail can be refused compatibly with Article 5.
These grounds must have sufficient force in the circumstances to outweigh the presumption in favour of bail: that the person might abscond, the he or she might interfere with the administration of justice, that the person might commit further offences and, exceptionally, that a refusal of bail would be necessary to prevent public disorder.
10. On what grounds is compensation to be paid under Article 5(5)—is it for any miscarriage of justice?
No. Compensation is paid if there has been a deprivation of liberty as a consequence of a breach of Article 5. Thus a person wrongly imprisoned after a fair trial compatible with Article 5, is not entitled to compensation.