Deprivation of liberty: the scope of Article 5 of the European Convention on Human Rights

Stone, Richard (2012) Deprivation of liberty: the scope of Article 5 of the European Convention on Human Rights. European Human Rights Law Review, 2012 (1). pp. 46-57. ISSN 1361-1526

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Abstract

This article considers the meaning of ‘deprivation of liberty’ under Article 5 of the ECHR as revealed by decisions of the European and English courts. It examines the concept first in relation to ‘administrative detention’. This includes any detention outside a criminal justice process, eg on mental health grounds, or where a suspected terrorist cannot be prosecuted. The law here is fairly well-developed in the European Court’s case law, through decisions such as Guzzardi v Italy, HL v UK, and Storck v Germany. The second area considered, operational policing – including stop and search or controls to prevent disorder – is much less developed. The focus here is on Gillan v UK, and the English decision of Austin v Metropolitan Police Commissioner (which is awaiting decision by the ECtHR). The article concludes by identifying the main factors which contribute to a finding of ‘deprivation of liberty’ and highlights some areas of continuing uncertainty.

Item Type:Article
Keywords:law, human rights, liberty, control orders, stop and search, public order
Subjects:M Law > M210 Public Law
Divisions:College of Social Science > Lincoln Law School
ID Code:4935
Deposited By: Richard Stone
Deposited On:08 Mar 2012 06:59
Last Modified:05 Dec 2013 10:21

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