Article 5

Right to liberty and security: everyone has the right to liberty and security of person. No-one should be unnecessarily detained against their will.

This right is subject to a narrow range of exceptions, such as arrest for a criminal offence or detention in a psychiatric hospital, or to prevent harm to yourself or others. There must however be an adequate reason for the detention.

The type of treatment which may breach this Article might be blanket policies in nursing homes which restrict movement, for example by locking residents in their rooms at night; or informal detention of individuals who do not have capacity, such as those with learning disabilities or dementia.

What this means for local authorities

Local authorities should be aware that any detention of vulnerable people, including those with learning disabilities, children and older people with psychiatric illness, may well mean that Article 5 is relevant. They should therefore ensure that the process for deciding whether or not such vulnerable people should be detained considers each individual’s circumstances, and sets out adequate reasons for any decision to deprive an individual of their liberty.

Case law examples

  • In HL v UK, the European Court of Human Rights held that the informal admission to a psychiatric hospital of an adult who lacked capacity, without the consent of his carers, was in breach of Article 5.

  • In BJ v Proudfoot and the Lord Advocate, the Court of Session held that the while the detention of children in secure accommodation by the chief of social work and the head of secure accommodation following a decision by the Children’s Panel engaged Article 5, the decision-making process did not breach the provisions of Article 5 in the circumstances.

  • In Austin v Metropolitan Police, the House of Lords concluded that demonstrators confined within a police cordon for up to seven hours did not suffer a violation of their right to liberty, where the cordon was part of a crowd control measure to prevent a breach of public order and where the cordon was in place for no longer than was necessary.