Scrutiny of bills : final progress report : twenty-third report of session 2003-04 : report, together with formal minutes and appendices / Joint Committee on Human Rights.

  • Great Britain. Parliament. Joint Committee on Human Rights
Date:
2004
Catalogue details

Licence: Open Government Licence

Credit: Scrutiny of bills : final progress report : twenty-third report of session 2003-04 : report, together with formal minutes and appendices / Joint Committee on Human Rights. Source: Wellcome Collection.

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    — The deprivation of liberty must be necessary in the circumstances, in the sense that there is no less restrictive alternative to detention.'’” 2.14 Article 5 ECHR also guarantees the right to have the lawfulness of detention reviewed by a court. Article 5(4) provides— Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 2.15 The European Court of Human Rights has held that no deprivation of liberty of a person considered to be of unsound mind may be deemed in conformity with Article 5(1)(e) ECHR without the opinion of a medical expert: any other approach falls short of the required protection against arbitrariness inherent in Article 5 of the Convention.’ The only exception to this requirement of prior consultation with a medical expert is in emergencies,'” in which case the medical opinion can be obtained “immediately after the arrest.” 2.16 The Court has also held that in order to be “lawful” within the meaning of Article 5(1)(e) ECHR any deprivation of liberty must be necessary in the circumstances— The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained.'” 2.17 The Joint Committee on the Draft Mental Incapacity Bill identified the authorisation of the use of force against a person lacking capacity or the restriction of such a person’s liberty of movement as a problematic feature of the draft Bill. It said “where force or restriction of the person’s movement is permitted, the Bill contains no requirement for the risk of serious harm to be immediate, which would justify emergency action being taken.” It noted the possibility of this giving rise to detention of incapacitated persons in contravention of the HRA.’ It recommended that the relevant clause be redrafted to specify that detention can only be justified in a situation of urgency (including an emergency) and that the period of detention should be as short and least restrictive as possible. 2.18 The Government in its Response said “We are undertaking further work in relation to [clause 6] and the use of force and restriction of liberty. Bearing in mind ECHR rights, the Government agrees that detention should be as short and least restrictive as possible. We 100 ibid.; Witold Litwa v Poland, App. No. 26629/95 (4 April 2000), at para. 78 101 Varbanov v Bulgaria, App. No. 31365/96 (5 October 2000), at para 47 102 “in urgent cases or where a person is arrested because of his violent behaviour.” 103 Witold Litwa v Poland, above, at para. 78 104 Joint Committee Report para. 132
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