Deprivations of Liberty: Beyond the Paradigm

35 Pages Posted: 16 Oct 2018

See all articles by Shona Stark

Shona Stark

Faculty of Law; Girton College

Date Written: October 1, 2018

Abstract

What constitutes a "deprivation of liberty" under Article 5 of the European Convention on Human Rights is very unclear. The courts have employed different tests for determining whether a deprivation of liberty has taken place in different cases. From an examination of the Convention and the case law, the threshold for a deprivation of liberty is much lower than the almost total social isolation of detention in a prison cell. The courts' fixation on the so-called "paradigm" case of containment in a cell has therefore been problematic when considering "non-paradigm" cases such as crowd containment and medical detentions.

The courts have also, it is argued, misunderstood the relationship between Article 5 and freedom of movement under Article 2 of Protocol 4.

This article outlines what the test should be for determining whether a deprivation of liberty has occurred to bring some clarity to this messy area of law.

Keywords: human rights, ECHR, right to liberty, police powers, deprivations of liberty, right to protest

JEL Classification: K38

Suggested Citation

Stark, Shona, Deprivations of Liberty: Beyond the Paradigm (October 1, 2018). University of Cambridge Faculty of Law Research Paper No. 59/2018, Available at SSRN: https://ssrn.com/abstract=3266628 or http://dx.doi.org/10.2139/ssrn.3266628

Shona Stark (Contact Author)

Faculty of Law ( email )

University of Cambridge
Cambridge
United Kingdom

Girton College ( email )

Cambridge, CB3 0JG
United Kingdom

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