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.