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The Right to Personal Freedom

By: Louise Smith, barrister - Updated: 13 Apr 2016 | comments*Discuss
 
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The right to personal freedom is contained in Article 5 of the European Convention on Human Rights (ECHR). This became part of UK law when the Human Rights Act 1998 came into force in October 2000.

Article 5 of the ECHR states that everybody has the 'right to liberty' and the right to 'security of person'. The right to liberty and security is far from absolute and Article 5 sets out many situations in which this right takes second place to other considerations. For this reason the right to personal freedom is described as a limited right.

Article 5 also sets out a number of rights which apply to people who are lawfully deprived of their liberty.

Exceptions to the Right to Liberty

Article 5 lists the following sets of circumstances which override an individual’s right to freedom. The right to liberty does not apply where:
  • A person is detained following a conviction by a court
  • A person is arrested or detained due to a failure to comply with a lawful court order or to ensure compliance with a legal obligation
  • A person is arrested or detained on suspicion of committing an offence, or to prevent him committing an offence or running away after committing an offence
  • A minor, or child, is detained for educational purposes or to take him to court
  • A person with a contagious disease is detained to prevent the disease from being spread
  • A drug addict, alcoholic or vagrant or a person with mental health problems is lawfully detained
  • A person is detained either to prevent their unlawful entry to the UK or because they are due to be deported or extradited.

The Rights of People Held in Lawful Detention

Whilst Article 5 contains many exceptions to the right to personal freedom it also sets out a number of specific rights in relation to those who are held in detention. Many of these rights are well known and have long been a part of UK legal or police procedure. These include the right of an individual to be told why they have been arrested and the right to be taken before a judge within a reasonable period.

People who have been arrested also have a general right to be released on bail pending trial. However, this right can legitimately be overridden on a number of grounds. Bail could be refused if it is feared that an individual may abscond, interfere with the administration of justice or commit another crime if he is released. An individual may also be held in detention, prior to trial, to prevent a public disturbance because of the seriousness or nature of his crime.

Article 5 also contains the right of a detained person to have prompt access to a hearing if any question arises about the lawfulness of his detention. If the detention is found to be unlawful Article 5 states that the individual has the right to be released and to receive compensation.

Under the terms of the ECHR it is possible for some of the rights contained in Article 5 to be overridden during a time of public emergency. In the UK this exception has recently been used to justify the period of detention, without charge or trial, of suspected terrorists.

The Application of the Right to Personal Freedom

An alleged breach of the right to liberty contained in Article 5 could be argued in a number of situations where an individual is detained by a public authority. These situations could include the lengthy detention of asylum seekers or the imposition of a mandatory life sentence for murder. An individual who is given an unusually long prison sentence following conviction for a crime could also argue that this represented a breach of his right to liberty.

A recent case involving the right to liberty concerned a group of anti-war protestors who were detained by the police for a number of hours to prevent them attending an anti-war rally.

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