ECON 1 Lecture Notes - Lecture 15: Reasonable Suspicion, Act Policing, Corporal
Summary of Meeting 3: Arrest and Pre-trial detention
Different rights for pre-trial detention:
Individual liberty (Art 5 ECHR): any violence against this right must be as a last resort (ultima
retio)
There has to be multiple safeguards (eg supervision)
Presumption of innocence: presumption of bail is for protection of this element.
Art 5(1)-(4) ECHR: legal requirements for arrest and pre-trial detention.
ECHR:
For arrest to be lawful according to Art 5(1)(c) of ECHR 3 requirements must be
met:
1) Reasonable suspicion: According to O’Hara v UK case there has to be facts
that would satisfy an objective observer that a person may have committed
a crime. Hence, concrete information linking the person to the criminal
offence Is required.
2) Double lawfulness: There are two tests to be satisfied:
a) Does the arrest complies with national law?
b) Domestic law must be in compliance with ECHR: the legal certain,
foreseeable and does the legal ground have reason.
3) To be informed of reasons for arrest according to Art 5(2): There are two
requirements to be informed:
a) Must be done promptly: within few hours, not necessarily upon the
arrest.
b) Adequate information is required: essential legal and factual grounds for
the arrest must be communicated to the suspect so he/she is able to
challenge the lawfulness of the arrest (Murry, O’Hara).
There has to be a first appearance less than four days according to maggee case
according to Art 5(3) ECHR:
Requirements of first appearance are:
1. Promptly (Brogan case): The first appearance must be done within 102 hrs
calculated from the moment of arrest. In case of police custody, the
reasons of such an act must be reasonable.
2. Procedural guarantees:
a) The first appearance must be before a professional judge
b) There must be a hearing
c) The suspect must be physically present
3. Substantive requirements: Merits of detention , power of release and asses
pre-trial detention.
For pre-trial detention to be lawful 2 requirements must be met: According to
Buzadji case RS + one of the grounds is sufficient for PTD. However, all grounds
diminish through time and new and relevant reasons must be available for
continuation of the PTD.
1. Material requirements under Art 5(1) and (1(c) ECHR:
a) Reasonable suspicion and 2ble lawfulness
b) Four exhaustive Public interest grounds under Czarnecki case: one of
such risks must exist if the suspect is released on bail and there has to
be factual evidence of actual risk
1. Risk of absconding
2. Risk of obstruction of Justice: factual evidence is required
3. Risk of re-offending: there has to be a plausible danger, a mere fact
of criminal record is not enough in it self.
4. Preservation of public order: factual evidence and concrete and
genuine grounds.
c) Special diligence
d) Alternative measures: PTD must be used as a last resort.
2. Procedural requirements under Art 5(4) ECHR:
There has to be judicial review or periodic automatic review
There has to be adversarial hearing to ensure equality of arms.
England:
Arrest: PACE 1948 SECTION 24(6) requires two elements for a lawful arrest:
1. A person’s involvement or suspected involvement in the commission of a criminal
offence s24(2).
2. Reasonable grounds for believing that the person’s arrest is necessary.
If arrest is not necessary, the police will have to apply for a warrant from a court.
A constable may arrest for any offence. Other persons may do so only if the offence is
actually being committed in front of them and it is necessary to prevent physical harm or
damage to property.
On arrest, the arrested person must be informed that he is under arrest, and informed of
the grounds for his arrest. (PACE S.28)
He has a right to have a person notified of his arrest, THIS MAY be delayed on the authority
of a senior officer if immediate notification is likely to prejudice the investigation, alert
other suspects or hinder recovery of criminal property (PACE code C and annex B).
Document Summary
Summary of meeting 3: arrest and pre-trial detention. Individual liberty (art 5 echr): any violence against this right must be as a last resort (ultima retio) There has to be multiple safeguards (eg supervision) Presumption of innocence: presumption of bail is for protection of this element. Art 5(1)-(4) echr: legal requirements for arrest and pre-trial detention. There has to be a first appearance less than four days according to maggee case according to art 5(3) echr: Requirements of first appearance are: promptly (brogan case): the first appearance must be done within 102 hrs calculated from the moment of arrest. For pre-trial detention to be lawful 2 requirements must be met: according to. Buzadji case rs + one of the grounds is sufficient for ptd. There has to be judicial review or periodic automatic review. There has to be adversarial hearing to ensure equality of arms.
