The right to liberty and a fair trial: Article 5 (the right to liberty and security, the permitted grounds of detention and safeguards) and Article 6 (the right to a fair trial and its guarantees).

What this dot point is asking

This dot point covers two key Convention rights: Article 5 (the right to liberty and security) and Article 6 (the right to a fair trial). You need to explain that Article 5 is a limited right permitting detention only on exhaustively listed grounds, with procedural safeguards, and that Article 6 guarantees a fair and public hearing with specific protections for the accused. WJEC tests application of Article 5 to scenarios and explanation of Article 6's guarantees.

The answer

Article 5: the right to liberty

The permitted grounds include lawful arrest on reasonable suspicion of an offence, detention after conviction by a competent court, detention of a person of unsound mind, and detention to prevent the spread of infectious disease, among others. Anything outside the list is an unlawful deprivation of liberty.

Article 5: the safeguards

The boundary of a "deprivation of liberty" is contested: in Austin v United Kingdom the European Court held that "kettling" (containing a crowd) in the circumstances did not amount to a deprivation of liberty, while in the Belmarsh case (A v Secretary of State for the Home Department) the indefinite detention of foreign terrorist suspects was held incompatible with Article 5.

Article 6: the right to a fair trial

Article 6 guarantees that, in the determination of civil rights and obligations or of any criminal charge, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. In criminal cases it adds:

• The presumption of innocence (Article 6(2)): everyone charged is presumed innocent until proved guilty.
• Minimum rights (Article 6(3)): to be informed promptly of the accusation; to have adequate time and facilities to prepare a defence; to legal assistance, including free legal aid where the interests of justice require; to examine witnesses; and to have an interpreter where needed.

Article 6 underpins access to justice and the rule of law, and applies to both civil and criminal proceedings.

Examples in context

The Belmarsh case is the landmark application of Article 5. Foreign nationals suspected of terrorism were detained indefinitely without trial under anti-terrorism legislation; the House of Lords held that this breached Article 5 because indefinite detention without charge did not fit any permitted ground and discriminated against foreign nationals, and it issued a declaration of incompatibility under section 4 of the Human Rights Act rather than striking down the Act. Austin v United Kingdom marks the other boundary, holding that being contained within a police cordon during a protest, in the particular circumstances, was a restriction on movement rather than a deprivation of liberty, so Article 5 was not engaged. Article 6 then guarantees what happens once a person is charged: a fair and public hearing before an independent tribunal, with the presumption of innocence and the minimum rights, the very protections that make a criminal trial fair.

Try this

Q1. Is Article 5 an absolute, limited or qualified right? [1 mark]

• Cue. A limited right: liberty may be removed only on the exhaustively listed grounds.

Q2. Name two safeguards contained in Article 5. [2 marks]

• Cue. The right to be told the reasons for arrest promptly (5(2)) and to challenge the lawfulness of detention before a court (5(4)).

Q3. Advise whether a person's right to liberty under Article 5 has been breached on the facts. [20 marks]

• What the marker wants. Whether there was a deprivation of liberty, whether it fell within a listed ground and followed a lawful procedure, whether the safeguards were observed, and a conclusion with authority such as Belmarsh.