Assessment 1: ECHR Article 5 and Criminal Justice Framework

This essay plan addresses the operation of Article 5 of the European Convention on Human Rights (ECHR) in the context of criminal justice, specifically examining its interaction with the Police and Criminal Evidence Act 1984 (PACE) and associated Codes of Practice. The plan outlines an analysis of how Article 5 safeguards the right to liberty and security of individuals accused of crimes, considering key concepts such as the presumption of innocence, pretrial detention, and preventive detention. The essay will explore the interplay between the ECHR and PACE in balancing police powers and individual rights. It will also examine relevant case law and academic sources, including journal articles and official legal documents, to critically evaluate the effectiveness of Article 5 in protecting the rights of the accused within the UK criminal justice system. The essay aims to provide a comprehensive overview of the legal framework and the practical implications of Article 5 in this critical area of human rights law.

Template for Assessment 1 – research Exercise
(40%)
Essay title for Assessment
THE OPERATION OF ARTICLE 5 OF THE EUROPEAN CONVENTION ON
HUMAN RIGHTS IN PROTECTION OF THOSE ACCUSED OF COMMITING
CRIMES THROUGH THE POLICE AND CRIMINAL EVIDENCE ACT 1984 AND
THE ASSOCIATED CODES OF PRACTICE
What is the question asking? Outline your understanding of the
question requirements below.
The Code for Crown Prosecutors offers that:
"Prosecutors must apply the principles of the European
Convention on Human Rights, in accordance with the Human
Rights Act 1998, at each stage of a case."
Article 5 of the EUROPEAN CONVENTION ON HUMAN RIGHTS provides
for the right to liberty and security of any person and that no one is to
be deprived of his liberty based on the standards set by the
Convention and any other prescribed procedure by the law. As the
Crown Prosecution Service is committed in upholding and protecting
the rights of everyone who comes into contact with the criminal justice
system, and for this case as a defendant, the aim of the PACE and the
codes of practice it introduces is to create a balance between the
powers of the police and the rights and freedoms of the public. The
treatment of suspects is then a very critical and sensitive consideration
under the ECHR.
With all that in mind, this is a question of how the specified article 5 of
the ECHR works to ensure that the fundamental right of liberty and
security of person are not violated by the police. This portrays the key
principle of criminal law on the presumption of innocence until one is
proven guilty by the court of law.

Outline the key ideas you will use in your essay. You can
separate these into sides of an argument or different
perspectives to answer the question
-The Rights of the accused person
-A brief outline of the specifications of Art 5 of the ECHR with examples.
- the link of the ECHR and PACE in working towards the stated common
goal- protecting the accused person.
-Pretrial detention vs presumption of innocence
-prevention detention vs right to liberty.
What are the key sources you will use? List each source and
evaluate its credibility (textbooks, journals, websites)
remember to use OSCOLA referencing when you list these.
1. 'Human Rights And Criminal Prosecutions: General
Principles | The Crown Prosecution Service' (Cps.gov.uk, 2019)
<https://www.cps.gov.uk/legal-guidance/human-rights-and-
criminal-prosecutions-general-principles> accessed 8 April 2020
This is the official website of the Crown Prosecution Service. The CPS is
a public authority for the purposes of the Human Rights Act 1998 (“the
HRA”).
2. Zander M, 'PACE (The Police And Criminal Evidence) Act
1984: Past, Present And Future' (2011) 23 National Law School
of India Review <https://www.jstor.org/stable/44283738?
seq=1> accessed 8 April 2020
The author Michael Zander, is an Emeritus Professor Law at London
School of Economics and Political Science. Professor Zander was a
member of the Royal Commission on Criminal Justice (1991–1993). He is
presently a member of the Home Office's PACE Strategy Board.
3. 'European Convention On Human Rights - Official Texts,
Convention And Protocols' (Echr.coe.int, 2020)
<https://www.echr.coe.int/Pages/home.aspx?p=basictexts&c=>

accessed 8 April 2020
The website with a PFF of the European Convention On Human Rights
4. 'Police And Criminal Evidence Act 1984'
(Legislation.gov.uk, 2020)
<http://www.legislation.gov.uk/ukpga/1984/60/contents>
accessed 8 April 2020
5. Gerards J, General Principles Of The European Convention
On Human Rights (Cambridge University Press 2019).
Janneke Gerards is Research Professor of Fundamental Rights Law at the
Law Faculty of Radboud University Nijmegen.
6. Kuijer M, 'The Challenging Relationship Between The
European Convention On Human Rights And The EU Legal Order:
Consequences Of A Delayed Accession' [2018] The International
Journal of Human Right<
https://doi.org/10.1080/13642987.2018.1535433>accessed 8
April 2020
7. Amos M, 'The Value Of The European Court Of Human
Rights To The United Kingdom' (2017) 28 European Journal of
International Law< https://doi.org/10.1093/ejil/chx044>accessed
8 April 2020
The European Journal of International Law is a quarterly law journal
covering international law in a combination of theoretical and practical
approaches.
8. Gerards J, and Glas L, 'Access To Justice In The European
Convention On Human Rights System' (2017) 35 Netherlands
Quarterly of Human
Rights,/https://doi.org/10.1177%2F0924051917693988>accesse
d 8 April 2020
9. Cline D, 'Deprivation Of Liberty: Has The European Court
Of Human Rights Recognised A ‘Public Safety’ Exception?'
(2013) 29 Utrecht Journal of International and European
Law<http://doi.org/10.5334/ujiel.bl>accessed 8 April 2020
10. Stevens L, 'Pre-Trial Detention: The Presumption Of
Innocence And Article 5 Of The European Convention On Human
Rights Cannot And Does Not Limit Its Increasing Use' (2009) 17
European Journal of Crime, Criminal Law and Criminal Justice<
DOI. 10.1163/157181709X429132 > accessed 8 April 2020
11. Kisic N, and King S, 'Toward A More Lenient Law: Trends In
Sentencing From The European Court Of Human Rights' (2014)
21 Human Rights Brief
<https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?
article=1910&context=hrbrief> accessed 8 April 2020
The Human Rights Brief is a student-run publication at American

University Washington College of Law (WCL).
12. Macken C, 'Preventive Detention And The Right To
Personal Liberty And Security Under Article 5 ECHR' (2006) 10
The International Journal of Human Rights
Summarise your main journal articles that you will use in your
essay. These must be sufficiently different to each other
(minimum of 4)
1. Macken C, 'Preventive Detention And The Right To
Personal Liberty And Security Under Article 5 ECHR' (2006)
10 The International Journal of Human Rights: This article is
concerned more about Prevention detention which is basically
detention via an executive order as a means of preventing a
predictable crime activity. Detention is therefore without criminal
charge or trial as it is based on a prospected activity of crime in
the future. The particular of Article 5(1)(c) and Article 5(3) of ECHR are
the key areas of concern by this paper whereby a deep textual analytical
study of Article 5 is done and also examines both the travaux
préparatoires of the European Convention of Human Rights, as well as
jurisprudence of the European Court of Human Rights. The genal argument
postulated by the article is that preventive detention is explicitly provided for
under the second ground of detention in Article 5(1)(c):
“(c) the lawful arrest or detention of a person effected for
the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having
done so…”
A person in preventive detention, nevertheless, should be
brought, without delay, before judicial authority under Article 5(3).
2. Amos M, 'The Value Of The European Court Of Human
Rights To The United Kingdom' (2017) 28 European Journal
of International Law. https://doi.org/10.1093/ejil/chx044:
The focus of this article is the importance of the ECtHR towards
the achievement of the goals of the ECHR and it concludes that
even though there are certain values that are relevant than
others, overall the potential value of the Court to the United

Kingdom in achieving this goal of protecting human rights through
law is still undoubtedly evident.
3. Cline D, 'Deprivation Of Liberty: Has The European Court
Of Human Rights Recognised A ‘Public Safety’ Exception?'
(2013) 29 Utrecht Journal of International and European
Law: This Article analyses the landmark case of Austin & Others
v The United Kingdom whereby it was decide that “the police
confinement of a crowd of protestors for up to seven hours, or
‘kettling’, did not constitute a deprivation of liberty in violation of
Article 5 of the European Convention of Human Rights”. This case
was when the court first considered the application of Article 5 to
the practice of kettling. The previous Article 5 jurisprudence by
the court shows that when checking whether an individual has
been illegitimately underprivileged of his or her liberty, the Court
will deliberate on the type of measure, its duration, its effects on
the individual, and the ways of application of the deterring
measure.
4. Stevens L, 'Pre-Trial Detention: The Presumption Of
Innocence And Article 5 Of The European Convention On
Human Rights Cannot And Does Not Limit Its Increasing
Use' (2009) 17 European Journal of Crime, Criminal Law
and Criminal Justice. DOI: 10.1163/157181709X429132: Despite the
emphasize on the presumption of innocence, there has been an
increase in pretrial detention across European countries. The
ECtHR also is of the position that the suspect should await his trial
in freedom. Article 5 of the European Convention on Human Rights
shields the individual right to liberty. Pre-trial detention is – within
limitations – acknowledged as a legitimate exception to the right
to liberty. The article further states that pre-trial detention will
always be a perturbing aspect of criminal law. Harmonizing
individual liberty and public interest –particularly public security–
produces dilemmas. In the quest towards finding a balance, the
presumption of innocence is habitually used to draw a certain line.
As pointed out in paragraph 3 the presumption nevertheless, is
not an legitimate fight against today’s pre-trial detention practice.
What is the most useful aspects of each resource?

Resources 1- 'Preventive Detention And The Right To Personal
Liberty And Security Under Article 5 ECHR': this Resource
introduces a key conflict between prevention detention because of the
unique nature of detention being on prediction of future crimes.
Resource 2- 'The Value Of The European Court Of Human Rights
To The United Kingdom': this article focuses on the general role of
ECtHR in protecting human rights through law
Resource 3: 'Deprivation Of Liberty: Has The European Court Of
Human Rights Recognised A ‘Public Safety’ Exception?': This
article focuses on the deliberations by court to determine deprivation of
liberty which are the type of measure, its duration, its effects on the
individual, and the ways of application of the deterring measure.
Resource 4: 'Pre-Trial Detention: The Presumption Of Innocence
And Article 5 Of The European Convention On Human Rights
Cannot And Does Not Limit Its Increasing Use': The Key argument
of presumption of innocence against the right to liberty is the most
useful aspect from this resource.
Organise the material that you have researched to form a plan
for your work. Essay plan: Introduction (including key terms you
will define, what you plan to cover, the key arguments)
1.Introduction
2. Key Terms Definition- Presumption of Innocence, Prevention
Detention, pre-trial detention, & Liberty in law.
3. Areas to cover: The meaning of Article 5 of ECHR, the examples of
how the ECHR operates with regards to this question, the influence of
the PACE 1984 towards the achievement of the ECHR goals, the
influence of The ECtHR towards this objective of protecting the accused
person.
4 Key arguments: the conflict between presumption of innocence and
the pretrial detention, and the conflict between the prevention detention
and the right to liberty.
Conclusions (bring your key ideas together, highlight the most

important points and note any implications):
The European Union Convention of Human rights provides a justification
of the rudimentary international legal rules that control State’s power to
go back to arrest and detentions and the legal guarantees that exist
intended to stopping illegal and subjective denials of the right to liberty.
There may be overlaps but the European Court of Human Rights is there
to maintain a balance.