Article 5 and Detention without Trial

Abstract

This chapter deals specifically with the effectiveness of contemporary legislative safeguards in the forms of the European Convention on Human Rights and the UK Human Rights Act 1998 by specifically undertaking an analysis of judicial decisions in relation to cases brought under Article 5 in order to determine how UK law is being interpreted in relation to this article and whether or not it is compatible with, or is deviating from, these basic libertarian principles. Contemporary and controversial cases such as those involving Khalid el-Masri and Maher Arar will be used to highlight this assessment as will case law such as the Secretary of State for the Home Department v JJ and others [2006] where the respondents successfully challenged the compatibility with Article 5 ECHR, of control orders issued against them. It is necessary to highlight that detention without trial under Article 5, torture under Article 3 and extraordinary rendition and Article 6 cannot easily be discussed separately as in many situations these issues all appear to go hand in hand. There will, therefore, be occasions throughout these chapters where the issues of torture and extraordinary rendition will be mentioned albeit the main focus within this chapter is on the subject of detention without trial. For this reason, I have tried to avoid repetition of materials used in the previous chapter and in the penultimate chapter which follows this.

Indefinite detention without charge or trial is anathema in any country which observes the Rule of Law.¹