Article 5: The Right to Liberty and Security
- teachlawhub
- Dec 14, 2025
- 6 min read
Article 5: The Right to Liberty and Security
Article 5 of the European Convention on Human Rights (ECHR) protects one of the most important freedoms that we have, the right to liberty and security of the person. This right is important because it protects individuals from being unfairly detained or having their freedom taken away by the State without a good legal reason.
Article 5 is a limited right, this means that it can be restricted in certain situations by the State. However, any restriction by the State must be lawful, necessary, and proportionate. This balance allows the State to maintain public order whilst protecting individuals from arbitrary detention, (Arbitrary detention means being detained or held by the State without a lawful reason, proper legal procedure, or appropriate safeguard).
The Core Rights Within Article 5
Article 5(1) sets out the general right to liberty and explains that detention is only lawful in the specific circumstances listed in the Article itself (see below). These situations are exhaustive, this means that the detention of an individual is unlawful if it does not fit within them.
Article 5 also contains important procedural protections. Article 5(3) gives individuals the right to be brought promptly before a judge and to be tried within a reasonable time. This prevents people from being held for long periods without judicial input. Article 5(4) gives the right to challenge the detention in court, allowing a judge to review whether the detention is lawful. Article 5(5) confirms that where there has been an unlawful deprivation of liberty, the individual has a right to compensation.
Deprivation of Liberty
There is no single legal definition of a deprivation of liberty, so courts look at the reality of the situation rather than just the label used.
A person may be deprived of their liberty if they are under continuous supervision or control and are not free to leave, particularly where there is no court order. This was confirmed in Cheshire West (2014), This case involved individuals with learning disabilities who were living in care homes and were under constant supervision. Although the care arrangements were said to be in their best interests, the individuals were not free to leave.
In Guzzardi v Italy (1981), the court explained that judges should consider the duration, effects, and manner of implementation of restrictions when deciding whether Article 5 applies. Mr Guzzardi was suspected of being involved with the Mafia and was placed under strict restrictions on a small island. Although he was not locked in a cell, his movements were heavily controlled and monitored. He argued that these restrictions deprived him of his liberty under Article 5. This case also made it clear that a person does not need to be locked in a small cell for there to be a deprivation of liberty.
Lawful Detention Under Article 5(1)(a–f)
Article 5 allows detention in a number of clearly defined situations, these are found within Article 5(1)(a-f).
Under Article 5(1)(a), individuals may be lawfully detained following conviction by a court. However, detention must not be indefinite and should be regularly reviewed.
Article 5(1)(b) allows lawful detention where a person fails to comply with a lawful court order.
Article 5(1)(c) permits detention following arrest, for example while someone is waiting to be charged or brought before a court.
Article 5(1)(d) applies to minors and allows detention where it is necessary for education, supervision, or protection.
Article 5(1)(e) allows detention for public health reasons or where a person is of unsound mind. In Winterwerp v Netherlands (1979), the court held that detention for mental health reasons is only lawful if the mental disorder is persistent, verified by medical experts, and detention is necessary. Mr Winterwerp was detained in a psychiatric hospital in the Netherlands because he was considered to have a mental disorder. His detention continued even though there were limited medical reviews of his condition. He argued that his detention was unlawful under Article 5.
Article 5(1)(f) allows detention while a person is awaiting deportation or extradition. In Saadi v UK (2008), the court confirmed that this type of detention can be lawful, but only if it is necessary and proportionate to the situation. Mr Saadi was an asylum seeker who was detained by UK authorities while his immigration status was being processed. He had not committed a crime and was held in detention for administrative reasons. He challenged whether this detention breached his Article 5 rights.
Police Powers: Stop and Search
When a person is stopped and searched by the police, they are being detained for a short period. This detention will not breach Article 5 provided the police follow strict legal rules.
In R (Gillan) v Commissioner of the Police (2006), the court confirmed that a lawful stop and search does not amount to an unlawful deprivation of liberty when carried out properly. Mr Gillan was stopped and searched by police under anti-terrorism legislation while on his way to a demonstration. The police did not need reasonable suspicion under the powers being used. He argued that the stop and search breached his Article 5 rights.
Under Section 1 of the Police and Criminal Evidence Act (PACE) 1984, police can stop and search a person in a public place if they have reasonable suspicion that the individual is carrying stolen or prohibited items. A public place is anywhere the public has access, and reasonable suspicion must be based on intelligence or information, not a hunch.
PACE Code of Practice A provides further safeguards. Officers may only ask for the removal of outer clothing such as jackets, coats or gloves in public. They must identify themselves, explain the reason for the search, and keep a written record. Reasonable force may be used if necessary.
Under Section 60 of the Criminal Justice and Public Order Act 1994, a senior officer may authorise stop and search in a specific area for up to 48 hours where serious violence is anticipated. No reasonable suspicion is required in these circumstances. In R (Roberts) v Commissioner of the Police (2015), the court held that Section 60 searches do not breach Article 5 provided they are used proportionately and in line with proper procedures. Ms Roberts was stopped and searched under Section 60 powers in London, which allow stop and search without reasonable suspicion. The powers had been authorised because of concerns about serious violence. She challenged whether this type of stop and search breached Article 5.
Police Powers: Kettling
Kettling is a police tactic that is used to contain crowds within a specific area in order to prevent serious violence or disorder. Although there is no specific law that authorises kettling, it does not automatically breach Article 5.
The key issue is whether kettling is a temporary restriction on movement or a deprivation of liberty. In Austin v UK (2009), the court held that kettling will not amount to a deprivation of liberty if it is proportionate, necessary to prevent violence, and used only for as long as required. Austin was part of a crowd that was contained by police during a violent protest in London. They were prevented from leaving the area for several hours as part of a kettling operation. They argued that this amounted to an unlawful deprivation of liberty.
Police Powers: Arrest
Arrest is a clear form of detention, but it will not breach Article 5 if the police follow the correct legal safeguards. Under Section 24 PACE 1984, police may arrest a person without a warrant before, during, or after a crime if they have reasonable grounds to believe the individual is involved.
Several safeguards protect individuals during arrest. The person must be told why they are being arrested and the reason must be given promptly and in plain language. In Christie v Leachinsky (1947), the court held that failing to inform a person of the reason for arrest will breach Article 5. Police must also caution the individual and may only use reasonable force if necessary. Mr Christie was arrested by police but was not clearly told the reason for his arrest at the time. The police believed they were justified in detaining him. He challenged the lawfulness of his arrest.
Arrest powers must not be misused to gather information. In Shimovolos v Russia (2011), the court held that arresting someone purely to extract information is unlawful. Mr Shimovolos was arrested by Russian authorities and taken to a police station. The arrest was used as a way to obtain information from him rather than because he had committed a crime. He argued that this misuse of arrest powers breached his Article 5 rights.
Police Powers: Detention in Custody
After arrest, an individual may be detained in police custody. This detention will not breach Article 5 if the rules under PACE and Code of Practice C are followed.
There are strict time limits on detention. Summary offences allow detention for up to 24 hours with no extension. Either way offences allow detention for 24 hours, which can be extended to 36 hours by a senior officer. Indictable offences allow detention for up to 24 hours, extendable to 36 hours by a senior officer and up to 96 hours with approval from a magistrate. For terrorism offences, detention can be extended up to 14 days by a district judge under the Protection of Freedoms Act 2012.
Custody officers have important responsibilities, including keeping custody records and monitoring the detainee’s wellbeing. Regular checks must be carried out. Detainees are entitled to basic conditions such as food, rest, and a clean cell, as well as rights including access to legal advice and the right to inform someone of their detention. Additional protections apply to under 17-year-olds, including the right to an appropriate adult.
Click below to download the FREE TeachLaw student activity pack.
Comments