Art. 5: Liberty

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:

lawful arrest on reasonable suspicion of an offence;
lawful detention after conviction by a competent court;
to secure compliance with a lawful court order.

  1. Enforced separation of father and autistic son (Article 8: Family Life also applies)
    Steven Neary is a young autistic adult with learning difficulties and high levels of anxiety.  At the time of the case he lived with his father and needed a highly predictable way of life. Until the exceptionally cold winter of 2009-10 the cooperation between the father and the council was good with home care packages and respite care in a special unit. However, winter of 2009 -10 strained the pattern at home, and Mr. Neary requested additional respite time.  There followed a vicious cycle where Steven’s behaviour deteriorated in the respite unit, and although he was asking to go home where his behaviour was less disturbed, the social workers began to plan for long term residential care possibly at a distance from home, even minuting that Mr. Neary should not have the chance to prove that he could again care for Steven.

In November 2010, the council asked the High Court to grant an order for residential care with Stephen – father contact only at the council’s discretion and under their supervision, even on home visits. However, Mr. Justice West did not accept that Mr. Neary had given permission for Steven to remain in the residential unit, nor the council’s right to give itself permission to deprive Steven of his liberty. He therefore ruled that the council had violated Steven’s Rights to Liberty and to Family Life (European Convention Articles 5 and 8).

Mr. Peter Jackson, judge, also noted that the same conclusions would have been reached under the English common law declaration of habeas corpus. Stephen-Neary

For deprivation of liberty in the interests of individuals of low mental capacity see: A Local Authority v A (A Child) [2010] EWHC 978; Low-ability

  1. The Belmarsh case and the Human Rights Act. Article 14 (Discrimination) also applies.
    The Antiterrorism Act 2001 allowed the indefinite detention  without trial of foreign terrorist suspects. In 2004 the House of Lords ruled this to be incompatible with the HRA on grounds of discrimination respecting the Right to Liberty. They issued a4. Certificate of Incompatibility.

As is well known, this challenge by the courts to the government resulted in the establishment of Control Orders under the Terrorism Prevention Act (2005) where suspects were monitored at home, and more recently of the Terrorist Prevention Measures (TPMs) Act (2011). In part this works because the police and security services have worked hard to gather evidence sufficient to prove the individuals’ terrorism in the criminal courts, so they are imprisoned with no violation of their human rights.

For false imprisonment by Home Secretary see H (Nigeria): 6. Mental Health Detainees

Leave a Reply

Your email address will not be published. Required fields are marked *