Article 5 of the Human Rights Act – the right to liberty and security – protects us from having our freedom arbitrarily taken away.

This right is particularly important for people held in immigration detention or in the criminal justice system or detained under mental health laws.

DEPRIVATION OF LIBERTY

What counts as a deprivation of liberty depends on the circumstances.

Article 5 doesn’t apply to restrictions on freedom of movement. The difference between restrictions on liberty and deprivation of liberty is one of degree or intensity and depends on the type of measure imposed, how long last, its effects and how it is implemented.

EXCEPTIONS

People can only be lawfully deprived of their liberty when this is done in accordance with law and in the following circumstances:

• Detention after a court conviction
• Arrest or detention for failing to observe a lawful court order or fulfil a legal obligation
• Arrest or detention on remand – ie. to bring somebody before the courts if they are reasonably suspected of having committed an offence, if reasonably necessary to prevent an offence being committed or to prevent a person escaping justice (but this does not include preventative detention). Detention must be proportionate in the circumstances
• Detention of children by lawful order for educational supervision or in secure accommodation, care or similar.
• Where lawful, to prevent – as a matter of last resort – the spread of infectious diseases, lawful detention on mental health grounds or other similar grounds.
• Where lawful to prevent unauthorised entry into the country or for deportation or extradition. Detention will stop being lawful if proceedings for deportation or extradition are not actually in process or not carried out diligently.

SAFEGUARDS

Article 5 also includes a number of procedural safeguards for anyone who is arrested or detained. It says that:

• people must be told why they are being detained
• they must be brought before a judge promptly
• the lawfulness of the detention can be challenged
• and victims of unlawful detention are entitled to compensation.

In 2004, the European Court of Human Rights found that an autistic man with profound disabilities – known as HL – had been unlawfully deprived of his liberty in a hospital.

The Court found there were no safeguards in place to protect HL against arbitrary detention, especially given that he lacked the capacity to consent to his detention and had no opportunity to challenge it.

As a result of this landmark judgment, the Government introduced the Deprivation of Liberty Safeguards in April 2009. These are intended to satisfy the procedural safeguards required by Article 5 – for example, by requiring that any deprivation of liberty be kept under review.

But serious problems remain.

People who lack mental capacity and who are being cared for and treated in care homes and hospitals are among the most vulnerable in our society.

In practice, the Deprivation of Liberty Safeguards are not properly understood or are not being applied properly.

Courts’ interpretation of the law in these types of cases has also been restrictive – meaning the safeguards are only providing protection in a very small number of cases.

In 2018, the Government announced it intended to scrap the Deprivation of Liberty Safeguards and replace them with a new system.

Did you know the UK is the only country in Europe with no time limit on how long someone can be held in immigration detention?

Liberty believes this breaches Article 5. It is not authorised by a judge, there are extremely limited options for review and it can be indefinite.

People with serious mental health problems risk being held for very long periods of time, causing their health to deteriorate dramatically.