II. ARTICLE 5 AND ITS FUNDAMENTAL FEATURES

Unsurprisingly, the right to liberty shares a number of features with other rights listed in the ECHR: the right must be interpreted in a ‘dynamic and evolutive’Footnote ⁴ manner, so as to provide effective, rather than ‘theoretical or illusory’Footnote ⁵ protection in practice. Any interference with the right must be properly prescribed by law,Footnote ⁶ which must satisfy certain conditions to meet the Convention standard of legality: it must, for example, be sufficiently precise and free from arbitrariness.Footnote ⁷ Further, any interference with the right by State authorities must pursue a legitimate aim, and the level of interference must be proportionate.Footnote ⁸ All of these are common features of qualified Convention rights across the board.

But the right to liberty is also distinctive. Article 5, as interpreted and developed by the relevant jurisprudence, features a set of fundamental principles with very limited relevance elsewhere in the Convention. Three of them are listed here. For the purposes of this article, and for the sake of convenience, they will be styled the exhaustive exception principle; the irrelevance of purpose principle, and the expansive definition principle. The first principle is the primary feature of Article 5, and the main focus of this article. The latter two overlap with, compliment, and safeguard the first. They are each intended to give practical effect to the unique character of the right to liberty.

III. KETTLING AND CROWD CONTROL

It is useful to begin with the case of Austin. The facts are simple: in 2001, a 3,000-strong protest took place in central London; many attendees protested peacefully, but some engaged in what the domestic court described as ‘a deliberate attempt to create destruction in the capital’.Footnote ³⁴ In response, the police set up a cordon around the group, ostensibly to prevent outbursts of violence and potential breaches of the peace. The crowd, peaceful protestors amongst them, was contained there, unable to leave, for some seven hours, without access to food, water, shelter or toilet facilities. One of the protestors alleged, relying on the three features of Article 5 outlined above, that her right to liberty had been infringed.

The claimant argued that, considering the expansive definition principle, to be contained in a small space against her will, without being free to leave for any reason, constituted a deprivation of liberty in practice. Considering the exhaustive justification principle, it was argued that since none of the exceptions in Article 5(1)(a)–(f) applied, this deprivation could not be justified. Considering the irrelevance of purpose principle, it was argued that whilst in abstract the police's aims and purpose—preventing damage and ensuring public safety—may be understandable, they ought to play no part in the legal determination of whether Article 5 was breached. This set up a straightforward-enough case; indeed, as Lord Neuberger noted, ‘the notion that there has been no infringement of article 5 seems, at least on the face of it, surprising’.Footnote ³⁵ Yet this is exactly what both the domestic courtsFootnote ³⁶ and the European Court of Human RightsFootnote ³⁷ did: both held that there was no deprivation of liberty under Article 5(1).

The House of Lords ruled that ‘there is room, even in the case of fundamental rights as to whose application no restriction or limitation is permitted by the Convention, for a pragmatic approach to be taken which takes full account of all the circumstances’,Footnote ³⁸ and found that the legitimate purpose pursued by the police allowed for what might have been a deprivation of liberty to be downgraded to a less severe restriction on liberty.Footnote ³⁹

The European Court of Human Rights, by a majority, also found no breach, by treating the purpose of the cordon as a relevant factor in determining the ‘type, duration, effects and manner of implementation’ of the interference.Footnote ⁴⁰ Whilst there is a slight shift in emphasis between the judgments of the respective courts, both were insistent upon the fact that the issue could be resolved at the first stage—whether a deprivation occurred—rather than at the justification stage, and that no deprivation occurred on the facts.

Clearly, both judgments were designed to achieve what the judges considered to be a fair result, and Article 5 was interpreted in a manner necessary to achieve this.Footnote ⁴¹ However, as other commentators have noted, to do so, the courts ‘smuggled’ purpose into the framework, despite alleging to do no such thing.Footnote ⁴² Indeed, following Austin, domestic judges have interpreted it as authority for the more general proposition that ‘the purpose and intention of the person [interfering with someone's liberty] may be relevant to whether there is a breach of Article 5’.Footnote ⁴³ This approach is clearly out of step with orthodoxy.Footnote ⁴⁴

This importation of purpose into the Article 5 framework can be framed in at least two different ways, and both run counter to the fundamental principles described above. The first is that the purpose behind the interference may in some circumstances become relevant to the initial question regarding the scope of Article 5, ie whether there was a deprivation in the first place (which would go against the irrelevance of purpose principle).Footnote ⁴⁵ In fact, in a recent judgment Lady Arden suggested that Article 5 can be construed, albeit ‘exceptionally’, to accommodate considerations of proportionality within the question of whether a deprivation of liberty has occurred.Footnote ⁴⁶ The second framing suggests that the purpose behind the interference can become relevant at the justification stage, even if it that purpose does not align with one of the otherwise exhaustive list of proscribed grounds listed in the Article (which would go against both the irrelevance of purpose principle and the exhaustive justification principle).Footnote ⁴⁷ It is unsurprising, then, that Austin has been described as creating de facto general ‘purpose’ justification.Footnote ⁴⁸

On either interpretation, Austin provides a clear example of a case where, upon an orthodox application of Article 5, judges must surely have found that an unjustified deprivation of liberty had taken place. That being intolerable, the courts interpreted Article 5 in a different way, going against its fundamental principles in order to do so. Whether this is defensible will be returned to below. However, as will be shown, Austin is not the only time that judges have bent the rules.

IV. PREVENTIVE DETENTION

The next example concerns preventive detention (that is, detaining an individual for the purpose of preventing them from engaging in some future incident). There is no doubt that this kind of detention, involving being held in a prison cell, constitutes a deprivation of liberty. The issue for judges is, rather, whether the detention is justified. Article 5(1)(c) allows for ‘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’. So, can preventive detention be justified under the Convention?

Traditionally, the answer was no. The relevant jurisprudence firmly established that Article 5(1)(c) only facilitates detention for preventive purposes if it is done, at least in part, to bring the detainee before a judge, and for the purposes of determining whether they committed a concrete and specific offence. In the foundational case of Guzzardi v Italy, the Strasbourg Court said that Article 5(1)(c) was ‘not adapted to a policy of general prevention directed against an individual or a category of individuals who … present a danger on account of their continuing propensity to crime’.Footnote ⁴⁹ In later cases, the Court described as ‘long … established’ the principle that Article 5 could not be used to justify preventive detention in the abstractFootnote ⁵⁰ and that ‘preventive detention without charge to be incompatible with the fundamental right to liberty under Article 5(1)’.Footnote ⁵¹

Three recent cases signalled a change of approach. In 2014, a Chamber of the European Court handed down its judgment in Ostendorf v Germany.Footnote ⁵² In that case, the German authorities detained a number of football supporters with a history of violence and hooliganism, on the back of knowledge that further violence was planned at a particular football match. The majority of the court reiterated the orthodox position: Article 5(1)(c) could not, on its own, justify detention, at least where no offence was committed and there was no intent of bringing the detained before a judge.Footnote ⁵³ A minority of judges, however, suggested that Article 5(1)(c) should be adapted to cover this kind of situation, even in the absence of a criminal charge.Footnote ⁵⁴ They argued that its previous rulings, allowing detention only to bring an individual before a judge, should be jettisoned, and that Article 5 should now be interpreted so as to allow the detention of an individual where it is considered necessary to prevent the commission of an offence in the abstract.

The second case is Hicks v Commissioner of Police of the Metropolis,Footnote ⁵⁵ a 2017 decision of the UK Supreme Court. In that case, a number of individuals considered likely to breach the peace at the wedding of a royal couple were detained, and then released once the event was over. In considering the lawfulness of that detention, the judges sided decisively with the minority in Ostendorf: Article 5 should be interpreted so as to permit detention of those who may imminently commit a crime (such as a breach of the peace), even if there is no intention, at the time of detention, to charge the detained with an offence or bring them before a judge.Footnote ⁵⁶

The third, and most important, case was delivered by the Grand Chamber of the Strasbourg Court in 2019.Footnote ⁵⁷ S v Denmark was another case involving the detention of individuals considered likely to participate in football hooliganism; as with Hicks, and notwithstanding the wealth of established jurisprudence to the contrary, the Grand Chamber ruled that ‘the fact that an arrested person was neither charged nor brought before a judge does not necessarily mean that the purpose of his or her detention was not in accordance with Article 5(1)(c)’.Footnote ⁵⁸ The absence of any ‘concrete and specific [criminal] offence’, something integral to the finding of a breach of Article 5 in previous detention cases,Footnote ⁵⁹ is, following S v Denmark, seemingly no longer requiredFootnote ⁶⁰ and ‘ought not to constitute an obstacle to short-term detention’.Footnote ⁶¹ Rather ‘the second limb … can be seen as a distinct ground for deprivation of liberty, independently of the first limb’.Footnote ⁶² The prevention of the commission of an offence is, according to the Court, now an independent ground justifying detention in and of itself.Footnote ⁶³

Whilst some have supported this new view on the basis of the language of Article 5,Footnote ⁶⁴ it is, with respect, unconvincing that the approach adopted in S v Denmark is any more appropriate a reading of the text of that provision as the one adopted by the Court in cases like Ostendorf. As noted, the change upends a previously settled line of case law (which, when applied, frequently led to violations, and States paying compensation for causing those violations).Footnote ⁶⁵

The new approach risks offending the exhaustive justification principle; the end result is that a ground which was previously not recognised as a valid reason justifying detention (prevention of harm, violence, or a breach of the peace) has now been positively recognised as a distinct ground in and of itself—ostensibly a new amendment to the otherwise exhaustive list in Article 5(1)(a)–(f). It also arguably offends the expansive definition principle; even if there was real ambiguity in terms of the meaning of Article 5(1)(c), the expansive definition principle should compel the adoption of a position which gives the greater protection to liberty rights (and, as such, the position which requires a more exacting justification).

Preventative detention of the kind seen in Hicks and S v Denmark presents another situation where being able to detain an individual seems, at least to some judges, like an eminently sensible idea, and one which, under a more open-ended proportionality exercise, would surely carry great weight. It is just not one which easily fits with the exhaustive nature of exceptions under Article 5(1).

V. PROTECTIVE DETENTION

As with detention for the purpose of preventing crime and, in effect, likely harm to others, detention solely for the detainee's own protection is not an explicit ground capable of justifying a deprivation of liberty under Article 5. For the avoidance of doubt, the Grand Chamber has repeatedly confirmed that, on its own, Article 5 cannot be used to effect so-called ‘protective detention’: that is, detaining someone for their own safety.Footnote ⁶⁶

It was perhaps surprising, then, that in 2021 the Court of Appeal ruled, in Archer v Commissioner of Police of the Metropolis,Footnote ⁶⁷ that detention considered necessary for the detainee's own protection did not breach Article 5.

In that case, the claimant was first (lawfully) detained pursuant to an assault charge, where it became clear that he himself had been the victim of a recent violent attack. The police—reasonably—believed that he would be at risk of a future attack if he were released from detention. His application for bail was therefore refused, on the grounds that continued detention was necessary for his own protection. He challenged this on the straightforward basis that this kind of detention could not be justified under Article 5(1); as the court explained:

The Court of Appeal decided the case after the cases of Hicks and S v Denmark, described above, were decided; it therefore followed these authorities in recognising that Article 5(1)(c) involved three distinct grounds of justification, including a stand-alone ground relating to the prevention of imminent crime. However, even this more expansive interpretation of Article 5 could not, on the face of it, justify protective detention for the detainee's own sake.

Nevertheless, no breach was found in Archer's case. On the facts, the claimant's detention was justified for two reasons: first, on the basis that it was necessary for his own protection; secondly, because of the continued suspicion that he had committed a criminal offence. The detention was approved by the authorities in order to effect both purposes.Footnote ⁶⁹ It seems that, because the latter reason was, in and of itself, a ground which could justify detention under Article 5(1)Footnote ⁷⁰ (and the other requirements necessary to comply with Article 5 were satisfied), the detention was considered lawful. Seemingly, in this case, the ‘own protection’ ground was not truly relevant to the outcome, and may be something of a red herring: the court had already found another, alternative, ground under which Archer's detention could be justified.

Yet the court was not only being asked whether the specific instance of detention in this case was lawful, but also whether the provision under which that detention was authorised—Section 38(1)(a) of the Police and Criminal Evidence Act 1984—which on the face of it permits detention for a detainee's own protection as a stand-alone ground, was itself compatible with the Convention.Footnote ⁷¹ The Court of Appeal seemingly upheld these provisions as being compatible with Article 5 (or at the very least, did not find them incompatible with Article 5).Footnote ⁷² The fact the detention was compliant with Article 5 led naturally—in the Court's view inevitably—to the conclusion that the provisions which were invoked to authorise the detention must also be compliant with Article 5.Footnote ⁷³ However, Archer's detention was not justified for reasons of his own protection on the facts: it was justified because of the suspicion that he had committed an offence. Indeed, if Archer's detention could not be justified on the basis of ‘own protection’ alone, the Court should not have upheld a provision which authorises detention on the basis of ‘own protection’ alone. But this is exactly what the Court did.Footnote ⁷⁴

The decision once again illustrates a widening of the orthodox defences justifying a deprivation of liberty; if the S v Denmark interpretation of Article 5 is hard to reconcile with its text, the Archer interpretation is even less credible. The decision goes against the irrelevance of purpose principle; the (laudable enough) purpose of protecting an individual from harm is used to justify detention. Given that this justification clearly falls outside the list of proscribed grounds in Article 5(1), this also offends the core exhaustive justification principle, too.

It is, of course, easy to sympathise with the idea that bail might justifiably be refused, for a short while, in light of concrete and reliable information about the risk to the detainee's life. Such a decision, on the face of it, seems practical and justifiable in the abstract. However, judges are not tasked with answering abstract questions. Archer provides another example where judges, sympathetic to the reasonable, and even benevolent, aims of the authorities, have departed from the requirements of Article 5 in order to achieve a just and equitable result.

VI. ARMED CONFLICT

Sections III to V considered the application of Article 5 in the context of police powers and public order. This section turns to the application of Article 5 in a very different context: armed conflict. More specifically, it considers how the narrow approach to detention in the ECHR overlaps with the wider approach in humanitarian law, and the controversial question of which takes precedence in certain kinds of armed conflict. The analysis here will be somewhat brief, as the issue has been covered, in far more detail, and on the basis of far greater expertise, elsewhere.Footnote ⁷⁵

The issue is as follows: when a party to the ECHR assumes personal authority over an individual in another jurisdiction,Footnote ⁷⁶ or where it exercises ‘effective control’ of another territory,Footnote ⁷⁷ it may (albeit only ‘exceptionally’)Footnote ⁷⁸ be required to comply with the requirements of the Convention in that context. The UK was considered by the Strasbourg Court to have exercised jurisdiction, at least some of the time, over parts of Iraq during its occupation in the years following the 2003 invasion.Footnote ⁷⁹ The ECHR, including Article 5, therefore applied. Yet, in the same circumstances, the Geneva Convention also applied, allowing the detention of certain individuals under circumstances beyond those listed in Article 5(1)(a)–(f).Footnote ⁸⁰ Potentially, certain conduct by the UK in Iraq may have been considered unlawful under the European Convention, whilst justified and lawful under the Geneva Convention.

Initially, when faced with this prospect, both Strasbourg and UK courts were able to sidestep the potential for conflict altogether, often by emphasising that a challenge based on Article 5 of the ECHR must be determined according to the terms of Article 5 of the ECHR, regardless of the position under the Geneva Convention or any other international law instrument.Footnote ⁸¹ However, the Strasbourg Court seemed to grasp the nettle in Hassan v UK,Footnote ⁸² at least with regard to international humanitarian law.Footnote ⁸³

In that case, the Strasbourg Court considered whether the UK forces’ detention of prisoners of war in Iraq on security-related grounds, something demonstrably justifiable under the terms of the Geneva Convention, ran contrary to Article 5 of the ECHR. Of course, no express ground justifying this kind of detention appears in Article 5. Nevertheless, in a landmark judgment, the Grand Chamber ruled that ‘the context and the provisions of international humanitarian law’ should be considered when interpreting Article 5 as a whole, including the list of justifications in Article 5(1).Footnote ⁸⁴ Essentially, the right to liberty was to be interpreted so as expressly to allow, in addition to the express grounds for justification listed therein, the detention of prisoners of war on security grounds, in circumstances which satisfy the requirements of the Geneva Convention.Footnote ⁸⁵

It is easy to see why the Grand Chamber ruled as it did. In the context of international humanitarian law, there is a strong argument that the rules of the Geneva Convention are better-suited than those of the ECHR. Certainly, those rules have applied in this context for a longer period of time. There are a whole host of practical problems which may arise if the ECHR were seen to ‘trump’ humanitarian law in practice, especially given that the Convention's extra-territorial application was, and continued to be, beset by controversy.Footnote ⁸⁶ Nevertheless, the conclusion in Hassan represents a clear expansion of the apparently exhaustive grounds in Article 5(1). In practice, the Grand Chamber recognised a seventh groundFootnote ⁸⁷ capable of justifying detention under Article 5(1). This offends the exclusive justification principle as well as the irrelevance of purpose principle, and by narrowing the circumstances under which a deprivation of liberty would be precluded, the expansive definition principle too.

But whilst the Hassan ruling represented a ‘striking modification’Footnote ⁸⁸ of the orthodox position, the stretching of Article 5 in the context of armed conflict did not end there. Despite the Grand Chamber making it explicit that this new, wider defence was justified only on the basis of the specific importance of the Geneva Convention, and as such would be applicable ‘only in cases of international armed conflict’,Footnote ⁸⁹ the UK Supreme Court subsequently ruled, in the case of Al-Waheed v Ministry of Defence,Footnote ⁹⁰ that further defences to liberty interferences could be recognised in at least some further conflict-related contexts, including non-international armed conflicts where the Geneva Convention did not apply.Footnote ⁹¹ Considering the reasoning in Hassan, Lord Wilson saw ‘no reason to afford any less interpretative significance to the resolutions of the Security Council than to the Geneva Conventions’Footnote ⁹² which led the majority of the Court to find that the justifications in relevant United Nations Security Council Resolutions provided, in effect, further grounds for justifying detention, above and beyond those in the text of Article 5, and beyond those in the Geneva Convention as recognised in Hassan.Footnote ⁹³ Indeed, that case was interpreted as authority for the strikingly wide principle that the previously exhaustive list of justifications in Article 5 did not apply outside of ‘peacetime conditions’;Footnote ⁹⁴ the Supreme Court ruled that, during armed conflict, detention for ‘imperative reasons of security’ should also be permitted.Footnote ⁹⁵ Whilst the majority's conclusion was met with a strong dissent from Lord Reed, arguing that the relevant Security Council Resolutions did not authorise the kind of detention implemented in that case,Footnote ⁹⁶ each of the nine judges in the UK Supreme Court handing down the case seemed to agree that an extension of the grounds justifying detention in Article 5(1) in the context of armed conflict was, in and of itself, permissible.

Once again, judges applied Article 5 in a manner which clearly goes against the exclusive justification rule and the expansive definition rule; despite decades of case law to the contrary, the list of justifications under Article 5(1) are now, according to Lord Sumption in Al-Waheed, now only ‘ostensibly exhaustive’Footnote ⁹⁷ rather than actually exhaustive, in the context of armed conflict.

VII. THE COVID-19 PANDEMIC

Perhaps the most pertinent challenge to the continued suitability of the Article 5 framework in recent times, and the last case study in this article, concerns the impact of, and response to, the COVID-19 pandemic. This section considers the measures put in place across parts of the UK at different points during the first two years following the outbreak of the pandemic; the analysis is likely to be applicable to similar measures imposed in other parts of Europe, too. The kind of measures adopted were practically unprecedented in modern times: partial or wholesale lockdowns, stay-at-home orders and mandatory isolation periods. Whilst these measures, by and large, garnered the support of the majority of the general public,Footnote ⁹⁸ they present, in theory, a significant curtailment of traditional freedoms, and may be more difficult to square with Article 5 than has perhaps been presumed.

On the face of it, there is a strong case that lockdowns (meaning here a general requirement to remain at home, sometimes with specific and usually very limited exceptions for purposes or classes of person),Footnote ⁹⁹ constitute ‘deprivations of liberty’ in the sense necessary to engage Article 5.Footnote ¹⁰⁰ Factors in the case law which have pointed towards a deprivation of liberty, which are of potential application in the COVID context, include: being required to live in a specific location or restricted area;Footnote ¹⁰¹ having social opportunities limited or meaningful contact with the ‘outside world’ removed;Footnote ¹⁰² needing permission or specific reasons to leave the location;Footnote ¹⁰³ being unable to visit others;Footnote ¹⁰⁴ and having visits from others limited or prohibited.Footnote ¹⁰⁵ All of these are of potential application to some of the UK's lockdown measures, which often required the general public to remain in one place—typically their own home—for a significant period of time; civil and criminal penalties for non-compliance could be, and were, enforced. Whilst there were exceptions to even the most stringent lockdown rules, allowing, for example, for the purposes of essential shopping, or for taking one short period of exercise, these were very limited in nature and their existence does not necessarily foreclose the possibility of a deprivation of liberty. Courts have found that being ‘free to leave’ a site of detention means being free to leave for reasons of one's own choosing, rather than a specific purpose chosen by another.Footnote ¹⁰⁶

Further, courts have been more likely to find that a measure constitutes an interference with Article 5 on the face of it where it is set out in terms which are general in nature and applicable across the board, without the possibility of sufficient adaption and alteration to suit the needs of a particular individual's circumstances.Footnote ¹⁰⁷ Again, some of the lockdown measures in the UK could be said to fall afoul of this. There is, then, a good argument that the UK's lockdown restrictions constituted a deprivation of liberty, which needed to be justified in order to comply with Article 5.Footnote ¹⁰⁸

Why, then, when the European Court of Human Rights had an opportunity to consider the compliance of Romania's lockdown rules—very similar in nature to those applicable in the UK—did it so blithely decide that lockdowns of this kind did not engage Article 5 at all?Footnote ¹⁰⁹ It is suggested that in doing so, the Court fell into a similar error of reasoning as it did when it decided Austin, above: the fact that the measures seemed so obviously and compellingly justifiable in the abstract, albeit not necessarily justifiable in a sense that would fit easily with the terms of Article 5(1)(a)–(f),Footnote ¹¹⁰ probably fed into the prior question of whether a deprivation of liberty arose in the first place.

This is evident from the language the Court employed in its (brief) reasoning, when declaring the case inadmissible due to being manifestly ill-founded: the ‘specific context’ of the COVID pandemic was key to its decision,Footnote ¹¹¹ and especially the pressing ‘health reasons’ behind the imposition of lockdown.Footnote ¹¹² The Court spoke candidly about the laudable ‘aim’ of the measures adopted,Footnote ¹¹³ and expressed clear sympathy with the plight facing the authorities. The Court, against the irrelevance of purpose principle, seemingly allowed its agreement with the benevolent purpose behind the measures to justify a finding that the measures ought not be considered a deprivation in the first place. It is hard to see how positioning lockdowns outside the ambit of Article 5 sits comfortably with the expansive definition principle, either. The ultimate result, much like in Austin, was a de facto justification being imported into the definition stage, bypassing the need for the measure to fall within one of Article 5(1)(a)–(f). It goes without saying that this undermines the exhaustive definition principle.

The Strasbourg Court was not the only court to adopt such an artificial view. The Court of Appeal adopted a similarly reticent attitude towards a similar claim made against the UK lockdown regime in Dolan; it being an apparent ‘mischaracterisation to refer to what happened under the regulations as amounting in effect to house arrest or even a curfew’,Footnote ¹¹⁴ the argument that there had been a deprivation of liberty was considered ‘unarguable’.Footnote ¹¹⁵

It is very easy to sympathise with the approach taken here. The COVID-19 pandemic was sudden, unexpected and escalated quickly. The need for some kind of lockdown measures was considered inevitable by much of the scientific community at the time.Footnote ¹¹⁶ It is obvious, whatever else may be thought of lockdown measures across Europe, that they contributed to a significant mitigation against widespread loss of life, especially of the most vulnerable, during the early stages of the pandemic.Footnote ¹¹⁷ To declare them unlawful, on the basis that provision for responding to a global pandemic was unthinkable at the time Article 5 was drafted, would be a very severe step.

All the same, a finding that lockdowns do not deprive individuals of their liberty feels contrary to common sense. Surely, lockdowns deprive those affected by them of their liberty (at least in a legal sense, for reasons set out above); the pertinent question ought to be whether that deprivation is justified, given the (exceptional) circumstances. After all, a finding that an action constitutes a deprivation of liberty is only the first step in finding a violation of Article 5, and such a finding would not mean that lockdowns were unlawful or ought to be struck down; the measures could, in contrast to the situation in Austin, surely be justified at the second stage, as a proportionate measure ‘for the prevention of the spreading of infectious diseases’ under Article 5(1)(e).

Perhaps not. As Greene has argued,Footnote ¹¹⁸ the scant case law on Article 5(1)(e)Footnote ¹¹⁹ suggests that deprivations under this limb are judged according to a fairly exacting standard. For example, detention under this limb must truly be a measure of last resort, ideally following consideration and trialling of less severe options.Footnote ¹²⁰ Perhaps most importantly, detention may need to be justified according to the specific situation of individuals affected (suggesting that justification must be assessed with regard to an individual's circumstances, and that a blanket measure such as a general lockdown may therefore fail to meet this standard).Footnote ¹²¹ Passages in the case law in relation to other parts of Article 5(1)(e), such as the provision allowing detention of those with unsound mind, might even suggest that this provision may only be applicable to those who are actually infected with a disease (or that it would be considerably more difficult to justify the use of Article 5(1)(e) with respect to them compared to those who were positively identified as carriers of the disease).Footnote ¹²²

At best, then, the applicability of Article 5(1)(e) to the kinds of blanket lockdowns implemented during the pandemic is questionable. The global outbreak of COVID-19, and the national lockdowns which followed since 2020 are far removed from the paradigm situations of deprivations of liberty which Article 5 was probably intended to govern. In particular, it is hard to imagine that when the court in Einhorn, attempting to set out general principles relating to Article 5(1)(e), would have had in mind the seemingly novel possibility that this limb would, in future, be relied upon to limit the spread of a deadly disease in the context of a global pandemic. Indeed, that Article 5 seems particularly ill-suited to such novel circumstances may be one reason why courts have been keen to dismiss claims against the lawfulness of lockdowns at the initial interference stage, rather than the more uncertain justification and proportionality stage, much like they did in the Austin cases.

Yet, the fact remains, that in order to do so, they adopted an unnaturally narrow view of what constitutes a deprivation of liberty (going against the expansive definition principle), relying, in practice, on the convincing purpose behind the deprivation (going against the exclusive justification principle and irrelevance of purpose principle). Once again, the interpretation and application of Article 5 is conducted in a necessarily artificial way in order to achieve what is considered a just result.Footnote ¹²³

VIII. DRAWING THE THREADS TOGETHER

In each of the above examples, judges were confronted with actions which, on the face of it, would constitute a deprivation of liberty, but could not be easily justified under the Article 5 framework. On the basis that those actions ought not to be considered a breach of the right to liberty (heightened, perhaps, by the particular associations and baggage attached to the charge of not just acting unlawfully, but breaching someone's fundamental human rights), the framework is adapted so as to avoid the need to find a breach on the facts.

This is done in two main ways. The first is by redefining, enlarging or otherwise modifying the closed list of justifications in Article 5(1)(a)–(f) so as to accommodate the justification in question (as was the case with preventive and protective detention described in Sections IV–V and, perhaps most explicitly, incorporating further defences in the context of armed conflicts as described in Section VI). The second, wary that a deprivation could not easily be justified under Article 5(1)(a)–(f), is by artificially narrowing the definition of what constitutes a ‘deprivation of liberty’ in the first place, removing conduct from the ambit of Article 5 altogether (as was the case with police kettling described in Section III and responses to the COVID-19 pandemic described in Section VII).

The end result of both methods is the same—the orthodox approach to Article 5, with the exhaustive justification principle at its centre, is sidelined, watered down or outright undermined: Stark is correct in suggesting that the justifications listed in Article 5(1) are often treated, in practice, as if they permitted an all-purpose, general proportionality mechanism.Footnote ¹²⁴

It should, of course, be noted that this article is not the first to draw attention to the problems with judicial reasoning in Article 5 cases. The result in Austin has been heavily criticised by academics: Ashworth and Zedner, for example, have described what they consider to be ‘result-pulled reasoning’Footnote ¹²⁵ and Stone has charged the court with reasoning backwards from a desired result.Footnote ¹²⁶ The argument here is that Austin provides just one example of this phenomenon. Indeed, the above list of cases is intended to be illustrative rather than exhaustive; there are certainly other accounts of judges departing from the Article 5 framework in order to achieve what they consider a just outcome. For example, Fenwick and Fenwick contend that in cases concerning control orders,Footnote ¹²⁷ judges would ‘reinterpret’Footnote ¹²⁸ and ‘recalibrat[e]’Footnote ¹²⁹ Article 5 so as to ensure compatibility. Similar arguments have been made in relation to the police's stop-and-search powers,Footnote ¹³⁰ and a further claim could even be made regarding detention in the mental health context.Footnote ¹³¹ Examples abound of judicial creativity producing dubious reasoning in the context of Article 5.

This is not a completely clandestine enterprise. Authorities on Article 5 constantly reiterate that it must be interpreted and applied in a ‘practical’ way which does not impose inappropriate burdens on the State.Footnote ¹³² It seems that this need can sometimes trump the fundamental principles behind the right. It has also been stated that the ‘underlying principle[s]’ behind Article 5 may be more important than complying with each specific limb and justification.Footnote ¹³³ Yet, whatever underlying principles that the courts may have had in mind in the cases described above were, in fact, deployed in a manner which undermined the even more fundamental principles described in Section II. Generic recourse to the promotion of unspecified principles in this way is unsatisfying and self-defeating.

Perhaps the clearest acknowledgement of the reality of the modern approach to Article 5 comes from Lord Neuberger's concurring judgment in Austin. In a refreshing departure from the sometimes delphic reasoning employed in Article 5 cases, he said this:

In other words: it is precisely because the application of the usual approach to Article 5 would lead to an outcome—here, that the kettling in that case would fall foul of the Convention—which would be unpalatable (‘odd’), that the usual approach should be departed from (in this instance, ruling that the relevant actions ‘did not amount to detention within Article 5 at all’). Lord Neuberger's statement is a rare admission that when it comes to Article 5, at least in hard cases, it is pragmatism which rules.Footnote ¹³⁴

IX. PROBLEMS, SOLUTIONS AND SOME MORE PROBLEMS

The above sections have sought to illustrate the disconnect between the endorsement of the exhaustive justification principle in theory and the sidelining of this principle in practice. This section asks what ought to be made of this.

First, why is this so problematic? Perhaps the most obvious issue, at least to lawyers, is the idea of judges advancing beyond their role, answering the question of what ought to constitute a deprivation of liberty according to their own wisdom, rather than according to what Article 5 of the ECHR requires. The adoption of an interpretation of Article 5 which strays significantly from its text may be considered to trespass upon the intentions of its drafters and threaten the democratic legitimacy conferred by its adopters. Thus, judges can be charged with crossing the cardinal line between application of the law and creation of it, a breach of the all-important legislative boundary. Of course, proponents of ‘slot machine jurisprudence’—whereby judges are limited to merely declaring the law—are few and far between.Footnote ¹³⁵ Most would allow for some kind of pragmatic, evolutive approach to the interpretation of legal sources. However, that does not necessarily bestow legitimacy to the approach adopted in the cases set out above.

The interpretation of Article 5 as described above is also based on achieving outcomes which are unlikely to attract universal moral assent. The use of ‘kettling’ as a form of protest response and crowd control has been strongly criticised.Footnote ¹³⁶ The use of preventive and protective detention may have merit, but their recognition sits uneasily with the continued expansion of police powers (and, in particular, evidence of discriminatory use of such powers).Footnote ¹³⁷ There are loud dissenting voices concerned about the effect of lockdowns.Footnote ¹³⁸ Yet the Article 5 framework was modified to facilitate each of these. Noting these criticisms is not necessarily to endorse them, or to contend that, if accepted, they would outweigh the potential positives stemming from allowing a deprivation of liberty in each case. It is simply to note that even if it is accepted that judges must make and develop law to some extent, the kind of changes made in these cases, grounded in moral considerations, are bound to be questioned.

Another concern applies in particular to the situations outlined in Sections III and VII—those who are cordoned and kettled, those who are unable to leave their homes due to their health concerns and so on. Due to a judicial sleight of hand, such individuals are not receiving reduced protection, but are deemed to fall outside of the scope of Article 5 altogether, receiving no protection. States are not required to justify infringements at all. There is no requirement that the infringement be justified ‘by law’. The additional protections in Article 5(2) to 5(5) do not apply to them. Even if it is considered that kettling and lockdowns should not fall afoul of Article 5(1), it seems unfair that those subject to such measures should not enjoy the additional Convention safeguards which they would otherwise be entitled to. The situation does fare better, in theory, for those affected by rulings in Sections IV–VI, whose deprivations of liberty were considered justified rather than not engaging Article 5 in the first place, but the applicability of these further protections in their case remains uncertain and patchy.

Finally, there is also a concern with the kind of changes being made in the examples above—judges are modifying the law by loosening, and ultimately weakening, the strict provisions of Article 5 (either by artificially narrowing what constitutes a deprivation of liberty or by artificially widening what can justify it). The result is, as commentators have put it, a dilution of protections under that rightFootnote ¹³⁹ and an ‘enlarged scope for coercive state action against individuals’Footnote ¹⁴⁰ going forwards. Towards this, there should, of course, be caution.

In sum, the approach to Article 5 set out above raises legitimate concerns relating to the appropriate role of judges in human rights cases, the relevance of personal morals in the case law, the specific moral choices being infused into law, the lack of safeguards applicable to some, and the implications of these developments for future cases. So, what should be done about all of this? Certainly, it is plausible to argue that some, or indeed all, of the cases above were wrongly decided. Many judges, in dissenting opinions, have said as such.Footnote ¹⁴¹ Over time, cases could be revisited or over-ruled. However, the cases outlined in this article are neither exhaustive examples of Article 5 being interpreted in a manner which undermines its orthodox principles, nor is it very likely that this trend will cease and there will be seen a return to the standard approach. The genie is seemingly out of the bottle. Judges adopted the approach they did in each case willingly; their doing so was no accident or mere legal error spotted with hindsight—the decisions were made intentionally. Judges had concerns, so serious that they compelled at times a fairly radical reinterpretation of Article 5. It is unlikely that these concerns will simply go away.

Perhaps more useful, then, is considering whether some kind of reform could be pursued, so as to accommodate, at least to some extent, some of the concerns leading to the problems identified above.Footnote ¹⁴² Reform of the Convention could of course be pursued. Amending Article 5 to include a more general proportionality-based approach would fit easily alongside the approach taken in relation to Articles 8–11 and elsewhere. Indeed, Article 5 was originally going to include a very similar proportionality measure to those rights before a change in drafting at an early stage.Footnote ¹⁴³ An alternative solution might be to amend or extend the grounds listed in Article 5(1)(a)–(f) so as to accommodate further specific justifications.Footnote ¹⁴⁴ Both changes would be likely to result in a greater emphasis being placed on the need to ensure a fair balance between that aim and the measures adopted,Footnote ¹⁴⁵ and would discourage judges from finding that measures which so clearly engage Article 5 on the face of it fall outside of its scope: there would be no need to do so if the justification for the measure could be subject to a more holistic assessment.

However attractive this may be from a legal point of view, the likelihood of this kind of reform taking place is virtually zero. It would be nearly impossible to mobilise support for an amendment to the Convention to modify the contours of Article 5.Footnote ¹⁴⁶ There is surely very little appetite for drafting and supporting what is essentially a fairly technical amendment, put forward to achieve a result which the court has considered itself capable, however messily, of achieving anyway. As is so often the case, the neatest academic solutions to a problem fall away in the face of political reality.

If Article 5 itself cannot be amended easily, perhaps for answers, elsewhere in the Convention should be consulted. Article 5 of the ECHR is not totally absolute—unlike, say, the right to life under Article 2 of the ECHR, States can derogate from their Article 5 obligations under Article 15 of the ECHR.Footnote ¹⁴⁷ When issues arise which, exceptionally, warrant depriving someone of the liberty in circumstances which do not fall under Article 5(1)(a)–(f), it may be fruitful to encourage States to derogate from the Convention, rather than asking courts to engineer an inauthentic interpretation of the Convention to justify such an action. In such a situation, exceptional cases are removed from the scope of the right altogether, mitigating the dilution of Article 5 as described above.Footnote ¹⁴⁸

Indeed, derogations from various rights under the Convention, including Article 5, have been historically made in the context of armed conflict;Footnote ¹⁴⁹ more recently, a raft of derogations were made by States during their initial response to the COVID crisis.Footnote ¹⁵⁰ Both contexts raise issues for the orthodox approach to Article 5, as outlined above.

Whilst the necessity of derogation in different circumstances is of course worth considering,Footnote ¹⁵¹ the idea that derogations could be effectively deployed in such a way to avoid the problems outlined above is impractical and unrealistic. Derogations are rarely made in practice.Footnote ¹⁵² This is by design—there are fairly strict requirements which must be satisfied for derogations to be valid and effective: there must be a ‘public emergency threatening the life of the nation’, and any measures adopted must be ‘strictly required by the exigencies of the situation’;Footnote ¹⁵³ this exacting threshold will not always be met, even in paradigm cases such as wartime and during a pandemic.Footnote ¹⁵⁴ Certainly, as things stand, derogation for the purposes of the exercise of ordinary police powers, or for routine crowd control, would be very difficult, if not impossible, to achieve.Footnote ¹⁵⁵ Expecting States to derogate in such a manner has rightly been described as ‘unreal’.Footnote ¹⁵⁶

There are also downsides to an increased recourse to derogation: as Lord Wilson pointed out, doing so in the context of armed conflict ‘would leave the human rights of those caught up in the conflict far less protected’.Footnote ¹⁵⁷ The same goes for each of the categories of people affected by the measures set out above. It may be considered better to retain the general protections of Article 5 and ‘tweak’ its application at the edges, in the cases described above, rather than to remove those protections altogether.Footnote ¹⁵⁸

As such, it seems there remains a problem without a neat solution: the current approach, under which a very small number of justifications are permitted for interfering with Article 5, is being jettisoned in practice in order to achieve a desired result, raising clear issues for judicial legitimacy, rights protection standards and the fairness of the approach to potential detainees in concrete cases. However, when it comes to finding a better route, the cleanest option—amending Article 5 in some way—is all but impossible. Further, derogation is impractical, presents problems, and would in any case only ever apply some of the time (there is no possibility of derogation when it comes to the ordinary application of police powers, for example).