Jenni Dempster KC & Alex Benn examine the modern problems of unlawful detention & provide practitioners with some valuable guidance on navigating the system
- Considers the challenges of the modern criminal justice system and highlights the risk of unlawful detention—one which arises more frequently than might be expected.
- Sheds light on how the threat of unlawful detention manifests itself and how practitioners can counter it.
The concept of ‘detention’ arises in various contexts. The fundamental principle of habeas corpus remains a key characteristic of this jurisdiction’s sense of natural justice, including for those who are not British nationals: ex parte Khawaja [1984] AC 74 at 111. Article 5 of the European Convention on Human Rights furthers this commitment, enshrining a person’s right to their own liberty and security.
False imprisonment is a crime and, as a tort, it comprises complete deprivation of liberty without lawful justification for any period of time: R v Hague [1992] 1 AC 58 at 162 (Lord Bridge). Elsewhere, the Bail (Amendment) Act 1993 provides a strict procedural framework to which the prosecution must adhere
