Police Powers and Article 5 ECHR: Time for a New Approach to the Interpretation of the Right to Liberty

Abstract

This paper discusses the approach of British and European Courts to the interpretation and application of the Article 5 ECHR right to liberty when faced with police powers. The paper argues that the long-standing approach of the European Court of Human Rights in Guzzardi v Italy [1980] ECHR 7367/76 is wrong and should be replaced with a new interpretation based on coercion. The paper goes on to argue that a new approach would allow the courts to effectively protect both Convention rights and the rule of law.