Article 5 - For Prison Law Practitioners

Hello. I'm Dean Kingdom of Swain and Co. Solicitors. And today I'm going to be talking to you about article five. That's the Human Rights Act. Now, Article five is the article that I'm most familiar with as a predominantly public law lawyer, but also a prison lawyer. I say that because as we will see its on article that's being used to challenge the detention off prisoners in a number of circumstances. So what is Article five? Well, Article five is the right off liberty and security, and it protects us from having our freedom taken away. This right is particularly for people held within the criminal justice system. So prisoners wever pre sentence or post sentence immigration detention on individuals detained under mental health laws. What does Article five specifically say? Well, without being dull? I am going to read it to you because it is important. Number one, everybody has the right to liberty and security of person. As I've already said, no one should be deprived of their liberty save for in the following cases and in accordance with the procedure prescribed in law. This is broken down within the article itself as the lawful detention of a person after conviction by a competent court the lawful arrest or detention of a person for non compliance with the lawful order of a court, or in the order to secure the fulfillment of an obligation prescribed by law. So in that circumstance, it could include a probation order or any form of older provided by a sentencing court, the lawful arrest or detention of a person affected for the purpose off, bringing him or her before the competent legal authority on reasonable suspicion of having committed an offense, or when it's reasonably considered necessary to defend him or her from committing an offence or fleeing after having done so. So the obvious example there is arrested by police the detention off a minor by lawful order for the purpose of education supervision or his or her lawful detention for the purpose of bringing him or her before a competent legal authority, the lawful detention of persons for the prevention off, spreading off infectious diseases of persons of unsound mind, our colleagues, drug addicts or vagrants on Finally, the lawful arrest or detention of a person's prevent is affecting or her affecting on unauthorized entry into the country, or of a person against him. Action is being taken with a view to deportation or extradition. So that covers Article 51 There's quite a lot of information. They're Article five to everyone who is arrested shall be informed promptly in a language which he'll she understands for the reasons of arrest. End of any charge against him or her. Article five free. Everyone arrested or detained in accordance with the provisions off the list that I read out, particularly paragraph one C um, which is the lawful arrest or detention shall be promptly brought before a judge or other officer or fries by law to exercise judicial power and shall be entitled to troll within a reasonable time. What to release pending troll on release may be conditioned by guarantees to appear for trial, which we know here as conditional about Article 54 is the one that I'm most familiar in our committee because it in it sets out that everybody who is deprived of his liberty, arrest or detention shall be entitled to take proceedings by which the lawfulness of the detention shall be D B. Decided speedily by a court on his release. Ordered. If the detention is not lawful now. I said, I'm most familiar with this because if you think about it from a prisoner perspective, they are given probe Aled reviews and hearings on. And if there are delays in them going in front of the parole board, particularly when they have support for release, they're released from be delayed by many months. Finally, Article five. Everybody who has being the victim or arrest or detention in contravention off the provisions of this article shall be entitled to compensation on when I say Entitled It's an enforceable right in UK law, they are entitled to damages as a result or established case law. Faulkner on sternum went through the Supreme Court specifically in relations prisoners rights, and I'm going to talk about that in more detail later on. Article five doesn't apply it to restrictions on freedom of movement, the difference between restrictions on liberty on deprivation of limits. Liberty is one of degree or intensity and depends on the type of measure imposed, how long it lasts, effects and how it is implemented. There are a number of exceptions that we've touched on us, how someone's liberty can be lawfully deprived e. I went through those again as we heard those. They are things such as being port before a court speeded speedily arrest Well, detention on march with reason I've spoke about those again. It's support. The article effectively ensures that people must be told why they are being detained. They must be told in a language they understand. They must be called before the judge Your corpse promptly The lawfulness of the detention can be challenged. They must have a trial within a reasonable time on. And the ultimate safeguard is that if any of those have bean breached and someone has bean unlawfully detained, then they are entitled to compensation effectively. We have a right to personal freedom and we must not be imprisoned or detained without reason. Are there any restrictions? Cities, right. Well, of course there is. If a court sentences an individual to prison detention, then the individual can also be sent to prison. If you haven't done something called, your board has ordered you to do such as complied with a probation order that can be revoked. You could be sent to prison. There is reasonable suspicion that you've committed a crime. Someone is trying to stop you committing a crime or they're trying to stop you running away from a crime. So effectively citizen, the rest or police officer arresting you where someone has a mental health condition and it's appropriately be detained in law. Your capable of spreading an infectious disease. Now, this isn't something I've come across with in my practice. You're attempting to enter a country illegally or you're going to be deported or extradited. So a practical example was to how Article five can be used. While the most obvious example for me, as I alluded to earlier he's within the parole board context, the Supreme Court in Osborne Bull Booth on Riley versus the parole Bold effectively decided that the circumstances in which the parole board had previously granted prisoners aural hearings have been too limited. The judgment was a real breakthrough for prisoners detained because it really want and the scope the prisoners toe have all hearings. And what we know is that those that have all hearings from a common sense perspective of better able to argue their case, and as a result, the rates of release have increased by the parole pulled so following that judgment. The parole board were taken by surprise. It meant that they suddenly had to start wanted more all hearings than they were ever used to grant him with the same number of Pro Bowl members very quickly. The moans was no capable of being met by the supply of members they had, and they had to recruit. Now, within the Pro Bowl context, you have different compositions of panels, depending on the nature of the case. And there was a real shortage of specialist members on what we mean by that, but generally psychiatric or psychological members of the parole board. This meant that a large number of prisoners had on experienced very lengthy delays in having their Perot bold all hearings. Certainly from my own experience, some prisoners waited in excess of a year, others many months in cases where they had full support for release, and they were ultimately directed release. It was very easy to show that actually had the parole board sat study 10 months ago, the individual in the balance of probabilities would have secured release 10 months ago. In other cases, it was not so clear cut. So going back to Article five for the need to have a effectively speedy with you, coupled with the final uh, section of the article that said, You have a enforceable right to compensation a number of prisoners applied to the parole board for compensation, and it's certainly something with in my practice I've being doing for a number of my clients. Naturally, the parole board has had to pay compensation. It's very frustrating for clients to have their detention for long, But I have certainly found in my experience that long term lifers who generally released with a prison discharge Grant and Lichter Wells and for those of you that are unaware with the amount of the prison discharged granite Samir £49 a payment off, say free or £4000 for the delays for Parole board review has certainly helped him established themselves in the community and to prevent any forever re offending. So it will be very helpful to run through some of the practical ways in which Article five is seen in practice to run for use. Um, helpful cases. I'm going to start by telling you the story of hate shell DHL was on autistic man. We have severe disabilities who had bean unlawfully deprived of his liberty in hospital. He was detained under the mental health fat in his individual circumstances. He lacked the capacity to consent to his detention on. He was unable to effectively challenge his detention and there were knows sufficient safeguards in place to protect hate Show had to take his case fruit to the European Court of Human Rights, Andi. As a result of them finding there was a clear breach of Article five, the government introduced the deprivation off Liberty Safeguards in April 2000 and nine. This was intended to answer that points raised with, in this case on to satisfy the procedural safeguards required by Article five, however, but he said that serious issues remain on its own, certainly somewhere from mental health colleagues. That is a real issue. Another example of how Article 5 may biting in the cases and say, someone who lacks mental capacity that being cared, cared for and treated in care, homes, hospitals, you know, they're these individuals are amongst the most vulnerable within our society. You know, this all manner of care home scandals that you hear in the media every now again or individuals in hospitals where certain people acting negatively towards them. Colleagues say that a deprivation of liberty safeguards are not properly, always properly understood are not always properly applied. The court, in interpretation of the law in these types of cases, has following the CHR judgment also being restrictive, meaning the safeguards are only providing protection in a very small number of cases. In 2018 the government did announce that they intended to scrap the safeguards and replaced them with a new system. In the case off Steven Neary, N e a r Y versus L. B Hillingdon 2011 in W. H. C. 1377 course protection case. A young man with autism needed temporary care whilst his father was unwell. The father naturally assumed, that is, some would stay his usual respite care home. But the local council placed um, the young lad in a specialist unit because of concerns about his age. His father expected this to be attempt removed his son to be home again within weeks. However, the counts who insisted on keeping him there and naturally the father very concerned, challenged this decision. By the time the case got to the Court of Protection, which, for those that are unaware is a specialised court at the higher court, which deals with its shoes concerning people who lack mental capacity to make decisions for themselves. Awarded accounts were breached. Article he naturally been unlawfully deprived of his liberty for a year on the court enabled him to return home. That's that's an example, which is quite extreme. So moving on to the heat cases coming from the East HR on Article five there from a number of different the country's. We have Turkey, Denmark and Germany. I'm gonna start with Denmark a number of foot. Some would say football supporters may deserve to be detained myself. I wouldn't detention of football supporters for approximately eight hours without charge we reviewed. Preventing violence was held to be no violation. That was s the A first Denmark 355 free forward slash 2012. In insular I l N s d h E r versus Germany, 10 to 11 forward slash 2012. This involved the preventative detention of a murderer. Now Germany is one of the few member states that has preventative detention of enables someone to people contained in excess of their sentence on the face of your preventing further crime. This individual being convicted of murder was subject to that preventive detention on the basis of psychiatric assessments that he continued to pose a danger that was held no violation in out pile versus Turkey. A L P A y Application number 16538 forward slash 17 There was 16 months that it lapsed for the examination of an application to the Constitutional Court of Turkey. Amazing new complex questions relating to a state of emergency and sold to be no violation.