The Right to Liberty and Security

Last month I examined the significance of Article 4 of the Human Rights Act (Prohibition of Slavery) and what Britain would be like if that Article didn’t exist. This month I’ll be taking a look at Article 5: The Right to Liberty and Security.

The right to Liberty and Security is not an absolute right under the Human Rights Act. The act sets out that everyone has this right unless they are detained as part of a lawful arrest or sentence of the courts, detained as a minor for the purpose of educational supervision, detained to prevent spreading disease, detained as a person of unsound mind, as an alcoholic or drug addict, or as a vagrant, or detained to prevent illegal immigration. The act also sets out that, where a person is detained, they must be told why, must have the opportunity to have their detention reviewed, and (where the detention is part of an arrest to bring the person before the courts) they will be processed promptly and not held for longer than necessary. Finally, the act sets out that where the provisions of this article are breached the victim of the arrest will be entitled to compensation.

Many cases have been brought before the courts both on British soil and in the European Court of Human Rights under this article and whilst some have been rejected there are a large number of successful claims. One such claim was brought in 2013 by a Somali national who was detained pending deportation without the chance to have his detention reviewed. The court found in his favour not because his detention was necessarily unnecessary to prevent illegal immigration, but because the failure to give him an opportunity of review made his detention unlawful. This demonstrates how seriously the right to review is taken by the courts.

Other significant cases include that of, James, Wells and Lee v The United Kingdom. They were three prisoners who brought a claim on the grounds that they had not been given access to rehabilitative programme prior to a parole review. They argued that the failure to provide access to these courses rendered the parole review pointless since the parole board could not release them until they had addressed their risk of reoffending. In effect they were therefore prevented from accessing a meaningful review of their detention. This too was enough to deem the claimant’s detention to be arbitrary. Similarly, a case in 2013 brought on the grounds that there had been a delay in the parole board reviewing a prisoner’s detention resulted in a ruling that his rights under article 5 had been breached. In deciding what remedy would be appropriate the court decided that ordering the parole board to hear his case immediately would simply jump him ahead of others who had also had their cases delayed and would therefore be inappropriate. Instead the court ruled that he was entitled to compensation to meet the frustration he had been caused.

Delays in providing access to rehabilitative courses or to parole hearings are not the only cause for Article 5 claims for arbitrary detention. In the case of a prisoner back in 2010 a claim was brought on the grounds that the parole board had declined to order his release based only upon the information contained in the parole papers. The prisoner applied for an oral hearing to review this decision but the board refused. At court, the judge ruled that the importance of what was at stake for the prisoner meant that an oral hearing was vital in order for his article 5 rights to be satisfied.

In my own case, I have previously been refused an oral hearing in exactly the same way as this and I have had my parole hearings significantly delayed on more than one occasion. In fact, I have not had an oral hearing since February 2012. Furthermore, I have continuously been refused access to rehabilitative programs in order to demonstrate my reduced risk of reoffending. I won’t go into all this in too much detail now, but watch this space in regards to legal action on this basis.

I’m sure there are a lot of people out there who think that the courts should lock away all criminals and throw away the key. But how much humanity is in that? And how realistic is it anyway? When you do not release someone on parole despite them being ready and suitable for release it does nothing but build resentment in them. This heightens their risk of reoffending where the aim should surely be to reduce it. The right to have your detention formally reviewed is vital to making sure that people are only detained for as long as necessary in order to safeguard the public. It is in place as equally to ensure prisoners are released at the right time as it is to make sure that they are not released at the wrong time..

So what would Britain look like without Article 5? Prisoners could have their parole hearings delayed and even cancelled without justification. Immigration detainees could find themselves deported without so much of a chance to make reasonable representations as to their suitability remain in the UK. People could find themselves waiting weeks, or even longer, just to be taken before a judge to assess the lawfulness of their detention. In the extreme, people could even be held without charge or trial and may not be told so much as the reasons why. It is for that reason that Article 5 should be considered the Article of Kafka. Without it our entire justice system could be considered both arbitrary and cruel.

Could a British Bill of Rights exist without the inclusion of Article 5? I don’t think so. Article 5 is essential to our very constitution.

Next month examine Article 6: The right to a fair trial.

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