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  • Print publication year: 2016
  • Online publication date: March 2016

8 - Preventive Detention in England


England provides the first example of what appears to be the liberal democratic descent down the slippery slope of preventive detention. Chapter 8 examines the government of England's decision to expand preventive detention beyond its traditional uses during an emergency and for the mentally ill to suspected terrorists and dangerous persons who suffer from antisocial personality disorder. It highlights the extent to which England has transformed preventive detention from an extraordinary measure for dealing with extraordinary circumstances to an ordinary crime-fighting tool – a transformation that tracks England's conversion to a risk society and places it on preventive detention's slippery slope.

Sources of English law

The primary sources of English law are domestic law, including common law and statutory law, and European law through the Council of Europe and European Union treaties, regulations and directives. England is also a signatory to the International Covenant on Civil and Political Rights (ICCPR). With respect to regional sources of law, the chapter focuses on the European Convention on Human Rights (Convention), as it is the main treaty governing preventive detention by Council member states. England signed the Convention in 1951 and adopted most of its provisions into domestic legislation in the form of the Human Rights Act in1998. The Convention, thus, can be enforced domestically or regionally before the European Court of Human Rights (ECtHR). As a member of the European Union, England has bound itself to the Charter of Fundamental Rights of the European Union, although for reasons described below, it plays a lesser role in determining England's human rights obligations.

Prohibition on arbitrary detention

English law

As described in Chapter 1, the prohibition on arbitrary detention in England dates back at least as far as the adoption of the Magna Carta in 1215. The common law maintains a “presumption of liberty” based on “the underlying principle, fundamental in English law, … that every imprisonment is prima facie unlawful.” The presumption requires the government to prove the legality of any detention in a court of law. This right to liberty and freedom from arbitrary detention applies without discrimination, including against foreign nationals.

The right to liberty and freedom from arbitrary detention is codified in the Human Rights Act of 1998. The Act states that it adopts the right to liberty guaranteed by Convention Article 5 subject to any reservation or derogation by England.

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