chapter  21
26 Pages

LIBERTY OF THE PERSON

21.1 Introduction

The most basic of all freedoms is personal liberty from detention. This is recognised in Art 5 of the European Convention on Human Rights (ECHR) which states that ‘everyone has the right to liberty and security of the person’. The term ‘security’ means simply that detention by a public authority must not be arbitrary; individuals should be secure from the unexplained and unlawful actions of the State: Bozano v France (1987). There are, however, circumstances in which it may be desirable for public officials – police constables, prison officers, judges, social workers, hospital managers, immigration officers and others – to deprive someone of this liberty. This is so, for example, where people are suspected or convicted of committing crimes; when people become so mentally ill that they are at risk of harming themselves or others; and also when people from overseas arrive in Britain who are suspected of being dangerous or of seeking to gain illegal entry into the country. Article 5(1) provides an exhaustive list of reasons for depriving a person of liberty, which the European Court of Human Rights has interpreted strictly. Arrests, detentions and imprisonments are constitutionally legitimate only if they are carried out in accordance with the law and if the law is fair. This, of course, begs many questions. To be constitutional, a person’s detention must be both in accordance with the UK’s national laws and also the ECHR: see Loukanov v Bulgaria (1996).