22 September 2010
FOURTH SECTION
Application nos. 39692/09, 40713/09 and 41008/09
by Lois AUSTIN and Others
against the United Kingdom
lodged on 17 and 27 July 2009
STATEMENT OF FACTS
THE FACTS
The first applicant, Ms Lois Austin, is a British national who was born in 1969 and lives in Basildon. She is represented before the Court by Louise Christian, Katharine Craig, Heather Williams QC and Phillippa Kaufmann, lawyers practising in London. The second applicant, Mr George Black, has dual Greek and Australian nationality. He was born in 1949 and lives in London. He is represented before the Court by James Welch, a lawyer practising in London. The third and fourth applicants are Ms Bronwyn Lowenthal and Mr Peter O’Shea. Ms Lowenthal has British and Australian nationality. She was born in 1972 and lives in London. Mr O’Shea is a British national. He was born in 1963 and lives in Wembley. They are represented before the Court by Mr John Halford, Mr Ben Emmerson QC, Mr Michael Fordham QC, Mr Alex Bailin and Mr John Halford.
The circumstances of the case
The facts of the case, as submitted by the applicants and as found by the domestic courts, may be summarised as follows.
1. The demonstration at Oxford Circus on 1 May 2001
On 18 June 1999, 30 November 1999 and 1 May 2000, demonstrations had been held in London to protest against global capitalism which had led to violence and serious breakdowns in public order.
For 1 May 2001, two events had been notified to the police, namely a trade union May Day March and Rally and a Young Socialist Students March, taking place in different parts of London. In addition, intelligence indicated that activists representing a broad coalition of environmentalist, anarchist and left wing protest groups intended to stage various protests based on the locations from the Monopoly board game. The locations were very widely spread. They included: CHARM at Marylebone and Liverpool Street stations at 7.30 a.m.; a picket in front of the World Patent Protection Summit at 8 to 10 a.m. in Great Queen Street WC1; a demonstration at 8.30 a.m. in the Pall Mall area against the arms trade; an investiture between 8.30 a.m. and 1 p.m. at Buckingham Palace; a Veggie Burger Give away at King’s Cross McDonalds at 9.30 a.m.; a “Peacenik in the Park” event at Victoria Embankment Gardens; Anti-Capitalist Anti-Globalisation demonstration at Parliament Square and Speakers’ Corner, Hyde Park, at 11 a.m.; an event timed to coincide with the Changing of the Guards at Buckingham Palace at 11.30 a.m.; demonstrations outside Coutts Bank on the Strand, at Elephant and Castle and at Trafalgar Square at 12 noon; further events at Piccadilly Circus at 1 p.m. as well as a protest peacefully to protect the planet at Angel Islington and a protest against hoteliers in West Cromwell Road; four events were due to take place between 2 and 2.30 p.m., at Pentonville prison, Speakers’ Corner, Conduit Street and the Haymarket. The final event was to be a rally at Oxford Circus at 4 p.m. The organisers of the “May Day Monopoly” protest did not make any contact with the police nor attempt to seek authorisation for the demonstrations.
During the domestic proceedings, there was no challenge to, or doubt cast upon, the accuracy and reliability of the intelligence on which police operations on May Day 2001 were based. The police had a Special Branch assessment which was one of the most pessimistic ever seen in London with regard to the risks and seriousness of anticipated public disorder. Special Branch intelligence reported that there would be “500 to 1,000 hard core demonstrators looking for confrontation, violence and to cause public disorder”. The intelligence assessment that there would be such violence and disorder was supported by the lack of co-operation on the part of the organisers, the wearing of masks by demonstrators, the incitement to looting and violence in the organisers’ literature, the suggestion of multiple protests to evade the police and the encouragement of secrecy. The police considered that there was a real risk of serious injury and even death, as well as damage to property, if they did not effectively control the crowd. Those at risk included members of the public, police officers and other demonstrators.
The police plan for the day involved the deployment of nearly 6,000 officers on foot wearing high visibility jackets. The policemen and women responsible for policing on May Day 2001 were the most experienced public order officers in England. Since it was foreseen that the final event would be a gathering at Oxford Circus at 4 p.m., a speaker system was installed there. The strategic intentions of the police operation were stated as being to provide public reassurance and ensure public safety; facilitate and police all legitimate protest; prevent public disorder and protect key buildings such as Buckingham Palace and the Houses of Parliament; prevent crime and take all reasonable steps to apprehend offenders if crime was committed; and generally minimise disruption. However, the police had little idea of what to expect or how they would react to it if and when it happened.
At around 1 p.m. on 1 May 2001 demonstrators started gathering outside the offices of the World Bank in the Haymarket. They walked towards Piccadilly Circus then down Regent Street to Oxford Circus. By 2 p.m. it was estimated that there were over 1,500 people in Oxford Circus and that more were steadily joining them. The evidence before the domestic courts was that the size of this crowd took the police by surprise and that there were insufficient officers in the area to prevent people gathering in Oxford Circus. Instead the police, fearing public disorder, took the decision at approximately 2 p.m. to contain the crowd. The domestic courts found that, in order to prevent the risk of injury to persons and damage to property, the police had no alternative at 2 p.m. but to impose an absolute cordon at Oxford Circus. The decision to impose the cordon was made in conscious exercise of common law powers to prevent a breach of the peace.
Once the decision to contain was taken it took about ten minutes to put in place a loose cordon and about 20-25 minutes to establish a full cordon. It was not possible to contain the crowd selectively, since police officers had no way of distinguishing between demonstrators and non-demonstrators or between peaceful and potentially violent demonstrators.
At 2.25 p.m., the Chief Superintendent commanding the operation started to plan for, and put in place, resources to facilitate a commencement of a controlled dispersal. At 2.45pm he expected the release to start within about an hour, but this proved impossible. On at least three occasions during the afternoon the order was given to commence a controlled dispersal north, but had to be reversed or suspended because of the conduct of protestors either inside or outside the cordon. The delay in the dispersal was substantially contributed to by the attitude of the crowd within the cordon which was not co-operating with the police. While about 60% remained calm, about 40% were actively hostile, pushing and throwing missiles. Those who were not pushing or throwing missiles were not dissociating themselves from the minority who were. Some members of the crowd were very violent. They broke up paving slabs and threw the debris at the police. The crowd did nothing to help the police when they entered the cordon to arrest a suspect. It was a dynamic, chaotic and confusing situation. It was made all the more difficult by the fact that there were a large number of protesters in the immediate vicinity outside the cordon. They were engaged in the same quest for Oxford Circus that had driven the original crowd there at 2 p.m. and were refusing to accept control by the police.
At 4 p.m. the first announcement was made, telling the people within the cordon that they were being contained to prevent a breach of the peace. It was accepted by the Police Commander in evidence before the domestic courts that the announcement to the crowd could have been made earlier, perhaps at 3.15 or 3.30 p.m.
There was sufficient space within the cordon for people to walk about and there was no crushing. But conditions within it were uncomfortable. The weather was cold and wet. No food or water was provided and there was no access to toilet facilities or shelter.
When the police eventually began to release the crowd they did so slowly. Protesters were searched and photographed on leaving and the dispersal was not completed until about 9.30 p.m. The domestic courts found that it would not have been practicable for the police to release the crowd collectively earlier than they did, because of the risk of disorder and violence, and also found that the dispersal procedure followed had been reasonable.
2.The applicants
a.The first applicant
The first applicant, Lois Austin, is a member of the Socialist Party and had been on many demonstrations, including previous May Day demonstrations. On 1 May 2001 she left her 11 month-old daughter at a crèche, planning to collect her at 4.30 p.m., and travelled from Essex to Central London with her partner. They attended the protest against globalisation outside the World Bank before walking with other protestors to Oxford Circus, arriving at about 2 p.m. Around 3.45 p.m. Ms Austin needed to leave the demonstration to collect her daughter from the crèche. She explained her situation to two police officers maintaining the cordon and offered the telephone number of the crèche for verification. However, she was told that she could not leave and that it was not known how long she would be held. Ms Austin was anxious about her daughter and at 4.30 p.m. she and her partner again requested to be released. The police officer responded: “You only have yourselves to blame for not being able to leave the demonstration. You should have thought of this and the consequences before coming on a demonstration.”
Ms Austin arranged for a friend to collect the child from the crèche. She was finally released at about 9.30 p.m. During the proceedings before the High Court the judge held that the evidence showed that Ms Austin was stimulated rather than distressed by the event. At various times in the afternoon she had a megaphone and told people not to push. She was in the company of friends throughout. When she came out of the police cordon she did not rush home but participated in a television interview and responded to questions from the press.
b.The second applicant
Between 2 and 2.30 p.m. on 1 May 2001 the second applicant attempted to cross Oxford Circus to go to a bookshop on Oxford Street. He was told by a police officer that he could not walk down Oxford street because of the approaching crowd of demonstrators and was advised to take Margaret Street, a parallel road to the north. The applicant followed this advice but between Margaret Street and Regent Street he was met by a wall of riot police with shields and helmets, moving south. The applicant was forced into Oxford Circus at about 2.30 p.m. He immediately asked to be released and was informed that there was an exit for non-protestors at the Bond Street side of Oxford Circus, but when he went there he was told that there was no exit. The applicant was not released until 9.20 p.m.
c.The third applicant
The third applicant had no connection with the demonstration. She worked in the Oxford Circus area and was on her lunch break at 2.10 p.m. when she was prevented from returning to her workplace by a line of police officers blocking the road. She turned and tried to pass in another direction but found that that exit was also now blocked by police officers, who began to advance towards her. Ms Lowenthal was held within the cordon at Oxford Circus until 9.35 p.m. She and others repeatedly requested to be released but was told by the policemen she approached that they were under orders to allow no-one to pass.
d.The fourth applicant
The fourth applicant also worked in the Oxford Circus area and was also caught up in the cordon while walking through Oxford Circus on his lunch break. He was released at approximately 8 p.m.
3. The domestic proceedings brought by the first applicant
a.The High Court
On 29 April 2002 the first applicant issued proceedings against the Commissioner of Police of the Metropolis, claiming damages for false imprisonment and for a breach of her rights under Articles 5, 10 and 11 of the Convention.
It was Ms Austin’s case that she was not herself presenting a threat to the peace and that any action taken against her as a result of the conduct of others had to come within the established limits of the common law power of police officers to deal with a breach of the peace and be justified under Article 5. The Commissioner of Police accepted that the applicant was not violent and had not herself threatened violence nor breached the peace nor threatened to do so. As to whether the applicant’s rights under Article 5 had been violated, the Commissioner’s case was that the applicant had not been deprived of her liberty within the meaning of Article 5 § 1 or, in the alternative, if she was deprived of her liberty, that the deprivation had been lawful in accordance with Article 5 § 1(c). In relation to Articles 10 and 11, the Commissioner argued that the interferences pursued the aim of preventing disorder and crime and did so proportionately.
In the High Court judgment delivered on 23 March 2005 ([2005] EWHC 480 (QB)), Tugendhat J dismissed the applicant’s claims. On the basis of his findings of fact, the judge found that a breach of the peace had been imminent at the time the containment was imposed, that the police had had reasonable grounds to suspect that everyone within the cordon posed a threat to the peace and that the police action throughout had been necessary to prevent such a breach. The detention was, accordingly, justified for the purpose of the tort of false imprisonment as a lawful exercise of traditional breach of the peace powers.
In connection with Article 5, the judge found that Ms Austin had been deprived of her liberty but that it had been permissible under Article 5 § 1(c). Although he found that there was never an intention on the part of the police to bring everyone contained at Oxford Circus before a judge, the purpose was to contain the crowd so that the police could arrest and bring before a judge all those they reasonably considered had committed offences and those whose arrest was necessary to prevent them committing offences.
b. The Court of Appeal
Ms Austin was granted permission by the trial judge to appeal to the Court of Appeal. The Commissioner of Police maintained his primary case in relation to Article 5 § 1, that the applicant had not been subjected to a deprivation of liberty, but he also argued in the alternative that the deprivation of liberty was justified under Article 5 § 1(c) and (b).
In a judgment delivered on 15 October 2007 ([2007] EWCA Civ 989), the Court of Appeal dismissed the first applicant’s appeal, on grounds which differed from those of the High Court. In connection with the claim for false imprisonment, the Court of Appeal held that, in order to prevent a breach of the peace threatened by others, the police could lawfully take action which interfered with or curtailed the lawful exercise of the rights of innocent third parties, but only where all other possible steps had been taken to avoid a breach of the peace and to protect the rights of third parties and where the action taken was reasonably necessary and proportionate. Applying this test, in the circumstances of the demonstration at Oxford Circus, Ms Austin’s containment was lawful because it was necessary to prevent an imminent breach of the peace by others.
In connection with the claim under Article 5, the Court of Appeal concluded that the detention did not amount to a deprivation of liberty, commenting that:
“it would be surprising if the respondent infringed the appellants’ rights under article 5 in a case where the judge has held that it was necessary for the police to take the steps they did”.
They emphasised the need under the Convention to strike a fair balance between the general interest of the community and the requirement of the protection of the individual’s fundamental rights and continued:
“94. ... The appropriate balance could be met by concluding that there was here no deprivation of the appellants’ liberty under article 5(1), or by holding that there was a deprivation of their liberty but either that it was lawful in order to secure the fulfilment of an obligation prescribed by law within article 5(1)(b) or was within article 5(1)(c). Because of its general approach, it does seem to us that, if the [Court] were to hold that there was a deprivation of the appellants’ liberty, it would be inclined to hold that paragraph (b) or (c) applied in order to ensure that the balance enshrined in the purpose of the Convention was maintained. We stress that we are here concerned with a most unusual case on the facts, in which the judge has held that the police had no real alternative to doing what they did”.
The Court of Appeal found that the imposition of the containment at the outset was not markedly different from other measures which would plainly not amount to a deprivation of liberty such as holding back football supporters to avoid crowd violence or preventing motorists from leaving a motorway. As with these sorts of cases “the original imposition of the cordon could not ... properly be regarded as the kind of arbitrary detention which the Strasbourg authorities would describe as deprivation of liberty within the meaning of article 5(1)” (§ 103).
c. The House of Lords
The applicant was granted leave to appeal by the House of Lords in connection with the issues under Article 5 § 1 of the Convention. The case was heard on 24 and 25 November 2008 and on 28 January 2009 a unanimous judgment was delivered, dismissing the appeal on the ground that Article 5 § 1 did not apply since the applicant had not been deprived of her liberty ([2009] UKHL 5).
Lord Hope of Craighead, with whom all the other Law Lords agreed, explained his approach to the interpretation of “deprivation of liberty” as follows:
“The threshold
17. If the difference between a restriction of liberty and a deprivation of liberty was to be measured merely by the duration of the restriction, it would be hard to regard what happened in this case as anything other than a deprivation of liberty. The interference with the appellant’s freedom of movement was not merely transitory, as in R (Gillan) v Commissioner of the Police of the Metropolis [2006] UKHL 12; [2006] 2 AC 307 where detention in the exercise of stop and search powers would ordinarily be for a few minutes only. In this case the detention that resulted from the police cordon was measured in hours, not minutes. But it is very well established that, in order to determine whether the threshold has been crossed, a much wider examination of the facts and circumstances is appropriate. In Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 59, for example, the court said that a disciplinary measure which would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian might not possess that characteristic when applied to a serviceman. But it would not escape the terms of article 5 if it deviated from the normal conditions of life within the armed forces of the Contracting States. In order to establish whether this was so, account should be taken of a whole range of factors such as the nature, duration, effects and manner of execution of the penalty or measure in question.
18. In Guzzardi v Italy (1980) 3 EHRR 333, where the applicant was sent for three years to live under special supervision on a small island, the court decided by a majority of 11 votes to 7 that he had been deprived of his liberty, both the majority and the minority were agreed that the question was one of degree. In para 92 of its judgment, following Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 59, the court said that, in order to determine whether someone has been ‘deprived of his liberty’ within the meaning of article 5, the starting point must be his concrete situation and that account must be taken of a whole range of criteria, such as the type, duration, effects and manner of implementation of the measure in question. In para 93 however it added these words:
‘The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the court cannot avoid making the selection upon which the applicability or inapplicability of article 5 depends.’
The point that is being made in the first sentence of para 93, which the court has repeated in many subsequent cases, is that it is not enough that what was done could be said in general or colloquial terms to have amounted to a deprivation of liberty. Except in the paradigm case of close confinement in a prison cell, where there is no room for argument, the absolute nature of the right requires a more exacting examination of the relevant criteria. There is a threshold that must be crossed before this can be held to amount to a breach of article 5(1). Whether it has been crossed must be measured by the degree or intensity of the restriction.
...
22. This case however is not simply a threshold case. It raises a more fundamental issue of principle which was not dealt with in Guzzardi v Italy (1980) 3 EHRR 333. Is it relevant, when considering whether a case falls within the ambit of article 5(1), to have regard to the purpose for which a person’s freedom of movement has been restricted? If so, in what kinds of cases can this be relevant? And, if the purpose of the restriction is relevant, what conditions must it satisfy to avoid being proscribed by the article?
23. The application of article 5(1) to measures of crowd control is an issue which does not appear so far to have been brought to the attention of the court in Strasbourg. So there is no direct guidance as to whether article 5(1) is engaged where the police impose restrictions on movement for the sole purpose of protecting people from injury or avoiding serious damage to property. The need for measures of crowd control to be adopted in the public interest is not new, however. It is frequently necessary, for example, for such measures to be imposed at football matches to ensure that rival fans do not confront each other in situations that may lead to violence. Restrictions on movement may also be imposed by the police on motorists in the interests of road safety after an accident on a motorway, or to prevent local residents from coming too close to a fire or a terrorist incident. It is not without interest that it has not so far been suggested that restrictions of that kind will breach article 5(1) so long as they are proportionate and not arbitrary.
...
Is purpose relevant?
26. The decision whether there was deprivation of liberty is, of course, highly sensitive to the facts of each case. Little value can be derived therefore from decisions on the application of article 5 that depend entirely on their own facts. But they are of value where they can be said to illustrate issues of principle. In the present context some assistance is to be derived from the cases as to the extent to which regard can be had to the aim or purpose of the measure in question when consideration is being given as to whether it is within the ambit of article 5(1) at all.
27. If purpose is relevant, it must be to enable a balance to be struck between what the restriction seeks to achieve and the interests of the individual. The proposition that there is a balance to be struck at the initial stage when the scope of the article is being considered was not mentioned in Engel v The Netherlands (No 1) (1976) 1 EHRR 647 or Guzzardi v Italy (1980) 3 EHRR 333. Nor can it be said to be based on anything that is to be found in the wording of the article. But I think that there are sufficient indications elsewhere in the court’s case law that the question of balance is inherent in the concepts that are enshrined in the Convention and that they have a part to play when consideration is being given to the scope of the first rank of fundamental rights that protect the physical security of the individual.
28. In X v Federal Republic of Germany (1981) 24 DR 158, where the Commission had regard to the fact that the purpose for which the children were taken to the police headquarters and kept there for about two hours was to question them, not to arrest or detain them. This led to the conclusion that the action in question did not constitute a deprivation of liberty in the sense of article 5(1). Similarly, in Guenat v Switzerland, application no 24722/94, 10 April 1995, the Commission had regard, in reaching its decision that the application was manifestly unfounded, to the fact that the police acted out of humanitarian considerations, given the applicant’s strange behaviour, when they took him to the police station where he remained for nearly three hours and was never locked up as there was never any question of arresting him. And in HM v Switzerland (2002) 38 EHRR 314 the court, in holding that article 5(1) was not applicable, had regard to the fact that applicant was placed in a foster home in her own interests in order to provide her with the necessary medical care, as well as satisfactory living conditions and hygiene: para 48. It would seem in principle that the more intensive the measure and the longer the period it is kept in force the greater will be the need for it to be justified by reference to the purpose of the restriction if it is not to fall within the ambit of the article.
29. In Nielsen v Denmark (1988) 11 EHRR 175 the applicant, who was a minor, complained about his committal to a child psychiatric ward of a state hospital at his mother’s request. The question was whether this was a deprivation of his liberty in violation of article 5. The applicant said that it was, as the ward in which he was placed was a closed ward, he was unable to receive visitors except with the agreement of the staff, special permission was required for him to make telephone calls and for persons outside the hospital to get into contact with him and he was under almost constant surveillance: para 65. On those facts his situation was close to the paradigm case ... But the court said in para 72 that it did not follow that the case fell within the ambit of article 5. The restrictions that were imposed on the applicant were not of a nature or degree similar to the cases of deprivation of liberty specified in article 5(1). He was not detained as a person of unsound mind so as to bring the case within paragraph (e). He was there at the request of his mother, as to whom there was no evidence of bad faith. The court summed the matter up in this way in para 72:
‘Hospitalisation was decided upon by her in accordance with expert medical advice. It must be possible for a child like the applicant to be admitted to hospital at the request of the holder of parental rights, a case which is clearly not covered by paragraph (1) of article 5.’
30. In Soering v United Kingdom (1989) 11 EHRR 439 one of the applicant’s complaints was that the decision to extradite him to the United States of America, if implemented, would give rise to a breach of article 3 as, if he were to be sentenced to death, he would be exposed to inhuman and degrading treatment on death row. In para 89 the court stressed the need for a fair balance to be struck:
‘What amounts to ‘inhuman or degrading treatment or punishment’ depends on all the circumstances of the case. Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.’
31. In O’Halloran and Francis v United Kingdom (2007) 46 EHRR 397 drivers whose vehicles had been caught on a speed camera complained under article 6(1) that they had been compelled to give incriminating information as to their identities in violation of their right to remain silent and the privilege against self-incrimination. They contended that this destroyed the very essence of the right to a fair trial. The court said in para 53 that it was unable to accept this argument. It did not follow from previous cases that any direct compulsion will automatically result in a violation:
‘While the right to a fair trial under article 6 is an unqualified right, what constitutes a fair trial cannot be the subject of a single unvarying rule but must depend on the circumstances of the particular case.’
In para 57, the court said that those who choose to keep and drive motor cars can be taken to have accepted certain responsibilities as part of the regulatory framework relating to motor vehicles. In para 58 the court brought into account the limited nature of the inquiry which the police were authorised to undertake, that the relevant statute did not sanction prolonged questioning about facts giving rise to criminal offences and that, as Lord Bingham noted in Brown v Stott [2003] 1 AC 681, 705, the penalty for declining to answer was moderate and non-custodial.
32. In N v United Kingdom (2008) 47 EHRR 885 the applicant was seriously ill on her arrival in the United Kingdom on a false passport from Uganda and was diagnosed as being HIV positive. She improved after prolonged medical treatment in this country. When steps were taken for her removal to Uganda she claimed that this would violate her rights under article 3 as the medication that she needed would only be available at considerable expense and would not be easily accessible. In para 44 the court repeated the observation that it had made in Soering that inherent in the whole Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. Advances in medical science, together with social and economic differences between countries, meant that the levels of treatment available there might vary considerably:
‘While it is necessary, given the fundamental importance of article 3 in the Convention system, for the court to retain a degree of flexibility to prevent expulsion in very exceptional cases, article 3 does not place an obligation on the contracting state to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the contracting states.’
33. In Saadi v United Kingdom, application no 13229/03, 29 January 2008, the Grand Chamber examined the notion of arbitrary detention in the context of the first limb of article 5(1)(f) which authorises the detention of a person to prevent his effecting an unauthorised entry to the country: paras 67 to 74. Its observations were directed to the restrictions permitted by the various sub-paragraphs of article 5(1). In para 67 the Grand Chamber said that it is a fundamental principle that no detention that is arbitrary can be compatible with article 5(1) and that the notion of ‘arbitrariness’ extends beyond lack of conformity with national law. In para 68 it said that the notion of arbitrariness in the context of this article varies to a certain extent depending on the type of detention involved. In para 74 it said that, to avoid being branded as arbitrary, such detention must be carried out in good faith and its length should not exceed that reasonably required for the purpose pursued. The ambit of article 5(1) was not the point at issue in that case. But it must follow from these observations that measures of crowd control which involve a restriction on liberty, if they are not to be held to be arbitrary, must be carried out in good faith and should not exceed the length that is reasonably required for the purpose for which the measure was undertaken.
34. I would hold therefore that there is room, even in the case of fundamental rights as to whose application no restriction or limitation is permitted by the Convention, for a pragmatic approach to be taken which takes full account of all the circumstances. No reference is made in article 5 to the interests of public safety or the protection of public order as one of the cases in which a person may be deprived of his liberty. This is in sharp contrast to article 10(2), which expressly qualifies the right to freedom of expression in these respects. But the importance that must be attached in the context of article 5 to measures taken in the interests of public safety is indicated by article 2 of the Convention, as the lives of persons affected by mob violence may be at risk if measures of crowd control cannot be adopted by the police. This is a situation where a search for a fair balance is necessary if these competing fundamental rights are to be reconciled with each other. The ambit that is given to article 5 as to measures of crowd control must, of course, take account of the rights of the individual as well as the interests of the community. So any steps that are taken must be resorted to in good faith and must be proportionate to the situation which has made the measures necessary. This is essential to preserve the fundamental principle that anything that is done which affects a person’s right to liberty must not be arbitrary. If these requirements are met however it will be proper to conclude that measures of crowd control that are undertaken in the interests of the community will not infringe the article 5 rights of individual members of the crowd whose freedom of movement is restricted by them.”
Lord Scott of Foscote agreed:
“... in particular, that, when deciding whether a confinement or a restriction of movement imposed on an individual by some public authority constitutes a deprivement of liberty for the purposes of article 5.1 of the European Convention, the purpose of the confinement or restriction and the intentions of the persons responsible for imposing it rank very high in the circumstances to be taken into account in reaching the decision. The imposition by the police of the Oxford Circus cordon on the appellant, and many others, was done for the purposes of protecting the physical safety of the demonstrators, including the appellant, and of protecting the neighbourhood properties from the violence that it was justifiably feared some of the demonstrators would perpetrate, violence that the appellant herself regarded as likely to happen. The intention of the police was to maintain the cordon only so long as was reasonably thought necessary to achieve those purposes and it is accepted by the appellant that the cordon was not maintained longer than was necessary to achieve those purposes. In the circumstances the confinement and restriction of movement that the cordon inevitably imposed on those within it did not, in my opinion, constitute an Article 5 deprivation of their liberty. I, too, would dismiss this appeal”.
Lord Walker of Gestinghope also agreed with Lord Hope, but emphasised the need for caution:
“43. In paras 26ff of his opinion Lord Hope poses the question ‘Is purpose relevant?’ His conclusion is a very guarded one, that is (para 34) that there is room, even in the case of fundamental rights, for a pragmatic approach which takes full account of all the circumstances. I respectfully agree that it is right to be cautious on this point. The Strasbourg Court has frequently made clear that all the surrounding circumstances may be relevant in determining whether there is a deprivation of liberty: see for instance HM v Switzerland (2004) 38 EHRR 314, para 42:
‘In order to determine whether there has been a deprivation of liberty, the starting-point must be the specific situation of the individual concerned and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question.’
It is noteworthy that the listed factors, wide as they are, do not include purpose.
44. The purpose of confinement which may arguably amount to deprivation of liberty is in general relevant, not to whether the threshold is crossed, but to whether that confinement can be justified under article 5(1)(a) to (f): see for instance (in relation to article 5(1)(e)) Nielsen v Denmark (1988) 11 EHRR 175; Litwa v Poland (2001) 33 EHRR 1267; Wall v Sweden, (10 December 2002) admissibility decision 41403/98; HM v Switzerland (above); HL v United Kingdom (2005) 40 EHRR 32; Enhorn v Sweden (2005) 41 EHRR 633; and Storck v Germany (2006) 43 EHRR 96. If confinement amounting to deprivation of liberty and personal security is established, good intentions cannot make up for any deficiencies in justification of the confinement under one of the exceptions listed in article 5(1)(a) to (f), which are to be strictly construed.
45. Many of these article 5(1)(e) cases also raise issues as to express or implied consent (to admission to a psychiatric ward or old people’s home). Some of the earlier cases seem questionable today insofar as they relied on ‘parental rights’ (especially Nielsen, which was a nine-seven decision that the admission to a psychiatric ward of a twelve-year old boy was not a deprivation of liberty, because of his mother’s ‘parental rights’). Storck has, I think, sent out a clear message indicating a different approach to the personal autonomy of young people (although the unfortunate claimant in that case was 18 years of age at the time of her compulsory medication in a locked ward in the clinic at Bremen, for which she was made an exceptionally large award for non-pecuniary loss).
46. I also feel some unease about the decision in X v Germany (19 March 1981) admissibility decision 8819/79; police stations can be intimidating places for anyone, particularly children, and it seems rather disingenuous to reason that
‘in the present case the police action was not aimed at depriving the children of their liberty but simply to obtain information from them about how they obtained possession of the objects found on them and about thefts which had occurred in the school previously.’
47. Having said all that, however, I conclude that it is essential, in the present case, to pose the simple question: what were the police doing at Oxford Circus on 1 May 2001? What were they about? The answer is, as Lord Hope has explained in his full summary of the judge’s unchallenged findings, that they were engaged in an unusually difficult exercise in crowd control, in order to avoid personal injuries and damage to property. The senior officers conducting the operations were determined to avoid a fatality such as occurred in Red Lion Square on 15 June 1974. The aim of the police was to disperse the crowd, and the fact that the achievement of that aim took much longer than they expected was due to circumstances beyond their control.”
Lord Hope stated at the end of his opinion (§ 38) that he endorsed Lord Walker’s remarks.
Lord Neuberger of Abbotsbury observed as follows:
“51. ... where, as happened to the appellant in this case, a person is confined in an area against her will by the police for well over six hours, in circumstances where paras (b) and (c) do not apply, the notion that there has been no infringement of article 5 seems, at least on the face of it, surprising. All the more so, given that the appellant was required to remain, in circumstances of some discomfort, in an area of some 2,000 square metres, cordoned in together with apparently some 3,000 other people, and where the confinement was in the context of the appellant exercising her undoubted right to demonstrate.
52. Having said that, it is important to bear in mind that in McKay [v. the United Kingdom] (2007) 44 EHRR 41, para 30 ... the court said that the ‘key purpose’ of article 5 ‘is to prevent arbitrary or unjustified deprivations of liberty’. Apart from importantly describing the purpose of article 5, this suggests that it is necessary to examine the circumstances of a particular case in order to see if it is within the ambit of article 5, particularly when it is not a paradigm case (which is ‘being in prison, in the custody of a gaoler’ - per Lord Hoffmann in JJ [2008] 1 AC 385, para 36). This view is supported by much Strasbourg jurisprudence, and, in this connection, I would refer to two relatively recent decisions of the [Court].
53. In HM v Switzerland (2004) 38 EHRR 17, para 42, the court explained that, in deciding ‘whether there has been a deprivation of liberty, the starting-point must be the specific situation of the individual concerned’. The court then said that ‘account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question’ and that the ‘distinction between a deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance’. In Saadi v United Kingdom (Application no 13229/03), 29 January 2008, the Grand Chamber said at para 68 that ‘key principle’” relating to article 5 ‘have been developed on a case-by-case basis’, and that ‘the notion of arbitrariness in the context of article 5 varies to a certain extent depending on the type of detention involved’.
54. Saadi (Application no 13229/03) is also important in the present context, because it seems to make it clear that, contrary to the appellant’s contention, the state of mind of the person responsible for the alleged detention can be a relevant factor in deciding whether article 5 has been infringed. In para 69, the court said that detention, even if complying with the national law, could be contrary to article 5 if ‘there has been an element of bad faith or deception on the part of the authorities’. Given the fact-sensitive nature of the enquiry and the significance of arbitrariness, this appears to me to be entirely consistent with the more general approach of the court to article 5 cases.
55. However, these considerations should not be relied on to dilute the importance or the effectiveness of article 5. They simply serve to emphasise that, like all the rights enshrined in the Convention, those contained in article 5 must be approached in the way described by the [Court] in relation to article 3, another of the ‘first rank of fundamental rights’, in Soering v United Kingdom (1989) 11 EHRR 439, para 89:
‘What amounts to ‘inhuman or degrading treatment or punishment’ depends on all the circumstances of the case. Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.’
56. Accordingly, particularly as the instant facts do not amount to a ‘paradigm case’, the issue of whether they fell within article 5, so that the appellant was ‘deprived of [her] liberty, raises what is very much a fact-sensitive question. ...
58. The police are under a duty to keep the peace when a riot is threatened, and to take reasonable steps to prevent serious public disorder, especially if it involves violence to individuals and property. Any sensible person living in a modern democracy would reasonably expect to be confined, or at least accept that it was proper that she could be confined, within a limited space by the police, in some circumstances. Thus, if a deranged or drunk person was on the loose with a gun in a building, the police would be entitled, indeed expected, to ensure that, possibly for many hours, members of the public were confined to where they were, even if it was in a pretty small room with a number of other people. Equally, where there are groups of supporters of opposing teams at a football match, the police routinely, and obviously properly, ensure that, in order to avoid violence and mayhem, the two groups are kept apart; this often involves confining one or both of the groups within a relatively small space for a not insignificant period. Or if there is an accident on a motorway, it is common, and again proper, for the police to require drivers and passengers to remain in their stationary motor vehicles, often for more than an hour or two. In all such cases, the police would be confining individuals for their own protection and to prevent violence to people or property.
59. So, too, as I see it, where there is a demonstration, particularly one attended by a justified expectation of substantial disorder and violence, the police must be expected, indeed sometimes required, to take steps to ensure that such disorder and violence do not occur, or, at least, are confined to a minimum. Such steps must often involve restraining the movement of the demonstrators, and sometimes of those members of the public unintentionally caught up in the demonstration. In some instances, that must involve people being confined to a relatively small space for some time.
60. In such cases, it seems to me unrealistic to contend that article 5 can come into play at all, provided, and it is a very important proviso, that the actions of the police are proportionate and reasonable, and any confinement is restricted to a reasonable minimum, as to discomfort and as to time, as is necessary for the relevant purpose, namely the prevention of serious public disorder and violence.
61. It was suggested on behalf of the appellant that, at any rate in some of the examples I have given, consent to being confined could be imputed to the people concerned. I am not sure that that is a satisfactory analysis, not least because, unless the consent is to be treated as being involuntary or irrebuttably deemed to be given, it would not deal with the case of a person who informed the police that he objected to being confined. However, if imputed consent is an appropriate basis for justifying confinement for article 5 purposes, then it seems to me that the confinement in the present case could be justified on the basis that anyone on the streets, particularly on a demonstration with a well-known risk of serious violence, must be taken to be consenting to the possibility of being confined by the police, if it is a reasonable and proportionate way of preventing serious public disorder and violence.
62. So, in agreement with the Court of Appeal, I would hold that, in the light of the findings of the Judge, as summarised in para [57] above, the actions of the police in the present case did not give rise to any infringement of the appellant’s article 5 rights. The feature of the present case which gives particular cause for concern is the length of the period of confinement, nearly seven hours. However, having reached the conclusion that reasonable and proportionate constraint, which is requisite to prevent serious public disorder and violence, does not infringe article 5, it seems to me hard to contend that the mere fact that the period of constraint was unusually long can, of itself, convert a situation which would otherwise not be within the ambit of article 5 into one which is. I think that some support for that view can be found in cases where it has been held that detention in prison is not taken out of article 5 because it was only for a short time - see e.g. Novotka v Slovakia (Application No 47244/99) 4 November 2003.
63. As already indicated, it appears to me that the intention of the police is relevant, particularly in a non-paradigm case, such as this, and where the intention is manifest from the external circumstances. If it transpired, for instance, that the police had maintained the cordon, beyond the time necessary for crowd control, in order to punish, or ‘to teach a lesson’ to, the demonstrators within the cordon, then it seems to me that very different considerations would arise. In such circumstances, I would have thought that there would have been a powerful argument for saying that the maintenance of the cordon did amount to a detention within the meaning of article 5. However, as is apparent from the clear and careful findings made by the Judge, which have quite rightly not been challenged on appeal, there could be no question of such a contention being raised in the present case. ...”
Since the House of Lords unanimously decided that Ms Austin had not been deprived of her liberty and that Article 5 did not therefore apply, it was unnecessary for them to determine whether the police action was permissible under any of the subparagraphs of Article 5 § 1. However, both Lord Hope and Lord Neuberger commented that, if there had been a deprivation of liberty, it would not have been possible for the police to justify it under the exceptions in Article 5 § 1(b) or (c).
4.The other potential litigants
Following the events on 1 May 2001 approximately 150 people who had been confined in Oxford Circus, including the second, third and fourth applicants, contacted various firms of solicitors with the intention of commencing proceedings. The various potential applicants, their legal representatives and the representatives of the Metropolitan Police entered into correspondence with a view to progressing the claims in an efficient manner. It was agreed that the first applicant and Mr Geoffrey Saxby, who was a passer-by caught up in the cordon, would act as “test” claimants (Mr Saxby subsequently withdrew from the proceedings). The Metropolitan Police provided undertakings to the legal representatives of the other claimants (including the second, third and fourth applicants) that they would not raise any limitation argument if they brought claims in the domestic courts after the test case had been determined. Following the House of Lords judgment in Ms Austin’s case, the other applicants decided, on legal advice, not to bring domestic proceedings since such proceedings would inevitably have failed.
COMPLAINT
The applicants complain that they were deprived of their liberty without justification under Article 5 § 1(b) or (c) of the Convention.
QUESTIONS TO THE PARTIES
1. Were the applicants “deprived of [their] liberty” within the meaning of Article 5 § 1?
2. If so, was the deprivation of liberty justified under any of the subparagraphs of Article 5 § 1?
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