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The burden of proof in Article 5 claims

The burden of proof lies with the police to prove a detention is lawful where a breach of the right to liberty under Article 5 of the European…

Motasim v CPS, Metropolitan Police and others

Executive summary

The burden of proof lies with the police to prove a detention is lawful where a breach of the right to liberty under Article 5 of the European Convention on Human Rights (ECHR) is alleged. That prevented a claim for breach of Article 5 from being struck out as speculative.

Background and facts

On the evening of 24 September 2014, armed police officers of the Metropolitan Police Counter-Terrorism Unit executed a search warrant at a London flat, the home of Suhaib Majeed, as part of an investigation into a suspected terrorist plot. Shortly after the police officers gained entry, a gun, a magazine containing six rounds of ammunition, one loose round and a silencer were thrown from Majeed’s bedroom window. Shortly after that, the claimant appeared at the window. They were both arrested.

Investigations suggested that there was a plot to carry out the drive-by shooting of a police officer. The claimant and four others were charged with terrorist and firearms’ offences. The claimant was detained post-charge but maintained his innocence and made an application to dismiss. The CPS identified material that could undermine the Crown’s case and support the claimant. A public interest immunity (PII) application was made concerning that material but dismissed by Wilkie J on 9 June 2015. He directed that the material should be disclosed but the Crown chose to offer no evidence and the prosecution was terminated after the claimant had spent nine months in custody.

The claimant issued a claim under the Human Rights Act for breach of Article 5 ECHR, his right to liberty and security in detention post-charge. The CPS and the Metropolitan Police (the defendants) applied to strike out the claim against them.


The case came before Master Davison on 15 August 2017. The defendants argued under CPR 3.4(2)(a) that there were no reasonable grounds for bringing the claim and that it was speculative. The defendants contended that so long as there were reasonable grounds for suspicion the detention was lawful under Article 5. The existence of the PII material did not undermine that suspicion.

The claimant argued that the PII material clearly went to the sufficiency of the evidence against him. It had been available earlier and should have been disclosed earlier. This delay had led to unlawful detention and was a breach of Article 5. This followed the Court of Appeal’s decision in Zenati v Metropolitan Police.

The court regarded an Article 5 claim as analogous to a claim for false imprisonment, where the burden of proof lay with the defendant. Although Article 5 was silent on the point, the court was satisfied that the burden of proof lay with the defendants. All the claimant had to do was establish the fact of his detention (in this case he had arguably gone further than necessary). This was enough to stop the claim from being speculative and the burden of proof switched to the defendants.  

The Master stated that even if this were wrong he would not strike out the claim. The claimant could not state his case in full at this stage because full disclosure had not been given. It seemed that the PII material was capable of resolving the case one way or another. In that regard, the judge might be able to adjudicate on the material but maintain its confidentiality pursuant to section 6 of the Justice and Security Act 2013 and CPR 82. The application was also in reality not simply an application based on legal principles under CPR 3.4 but also a claim on the facts that there was no realistic prospect of success pursuant to CPR 24.2. The Master stated that the court should be wary of striking out actions in developing areas of law on assumed facts.


Article 5 cases will always be difficult to strike out under CPR 3.4(2)(a) because it is enough for a claimant to establish the fact of imprisonment. A defendant then has the burden of proving its lawfulness. On that analysis, strikeout as under CPR 3.4 is highly unlikely.

For further information about Weightmans or to discuss any of the issues in this update, please contact John Riddell, Partner, at

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