Article 5 of the European Convention on Human Rights, the right to liberty and security.
Article 5 ECHR states:
"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:
a. the lawful detention of a person after conviction by a competent court;
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;
d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
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. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."
Guidance on Article 5 can be found here.
More guidance on Article 5.
Information on Article 5 from equalityhumanrights.com.
What relevance does Article 5 have in relation to prison law issues?
Article 5 ECHR states:
"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:
a. the lawful detention of a person after conviction by a competent court;
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;
d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
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. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."
Guidance on Article 5 can be found here.
More guidance on Article 5.
Information on Article 5 from equalityhumanrights.com.
What relevance does Article 5 have in relation to prison law issues?
Article 5 grants individuals, including prisoners, certain rights in relation to their detention or imprisonment. The purpose of this is to ensure that detention is lawful and not arbitrary. Article 5 is therefore a very powerful safeguard to ensure prisoners and those detained in custody are treated fairly and in accordance with the law. If these rights are breached, a prisoner may be entitled to make a claim against the body responsible for the impingement of his rights. If a prisoner thinks his Article 5 rights have been infringed upon, he should seek legal advice.
Article 5 (4) and recalled prisoners
Article 5 (4) provides:
"Everyone who is deprived of
his liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not lawful."
This means that recalled prisoners are entitled to regular and speedy reviews of their detention in order to determine whether or not their detention continues to be justified.
If an individual is recalled to prison whilst serving the licence period
of a determinate sentence, he will be released on his sentence expiry
date unless he can demonstrate to the Parole Board that he can safely be
released before then. The Secretary of State for Justice has a duty to
refer such cases to the Parole Board. The Parole Board cannot consider
the recalled prisoner's case without a recommendation from the
Secretary of State. The case must be referred to the Parole Board within
28 days of recall (s. 255C (4) Criminal Justice Act 2003) and after
that, at least every 12 months (s. 256A(1) Criminal Justice Act 2003).
However, the Parole Board can recommend that the Secretary of State makes such a referral by virtue of s. 256A (3) Criminal Justice Act 2003, which stipulates:
"The Board may at any time recommend to the Secretary of State that a person's case be referred under subsection (2)."
The case law reiterates the principle:
However, the Parole Board can recommend that the Secretary of State makes such a referral by virtue of s. 256A (3) Criminal Justice Act 2003, which stipulates:
"The Board may at any time recommend to the Secretary of State that a person's case be referred under subsection (2)."
The case law reiterates the principle:
"Recall, even of someone who has only a conditional right to his freedom under licence... is a new deprivation of liberty by detention. The prisoner is therefore entitled to take proceedings by which the lawfulness of that detention can be decided speedily by a court under Article 5 (4). Review by the Parole Board of the recall decision... if conducted in accordance with the fairness which the common law requires, is in my view a compliance with Article 5 (4)..." (per Lord Slynn, R (Smith & West) v Parole Board [2005] 1 WLR 350).
This was reaffirmed by Lord Phillips in R (Black) v Home Secretary [2009] UKHL 1:
"What of those determinate prisoners whose release depends upon the decision of the Parole Board? I consider that our domestic law entitles them to release provided that the criteria for their release are satisfied. Article 5 (4) entitles them to judicial determination of that question and timely consideration by the Parole Board will satisfy the requirements of Article 5 (4)."
Therefore, if an individual is entitled to the protection which Article 5 (4) affords, he is entitled to speedy and regular reviews of his case.
What about lifers?
The issue of reviews for life sentence prisoners was considered in Noorkoiv v Home Secretary & Parole Board [2002] EWCA Civ 770. It was held in that case that for lifers, reviews are to be conducted upon tariff expiry.
Article 5 (5) and damages
Article 5 (5) provides an enforceable right to damages if an individual's Article 5 rights have been breached.
Do indeterminate sentences breach Article 5?
No. Indeterminate detention or imprisonment for public protection ("IPPs") do not breach Article 5, however such detention cannot be arbitrary.
No comments:
Post a Comment