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Judgments - Austin (FC) (Appellant) & another v Commissioner of Police of the Metropolis (Respondent)


SESSION 2008-09

[2009] UKHL 5

on appeal from: [2007] EWCA Civ 989




Austin (FC) (Appellant) & another v Commissioner of Police of the Metropolis (Respondent)

Appellate Committee

Lord Hope of Craighead

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Lord Carswell

Lord Neuberger of Abbotsbury



Heather Williams QC

Phillippa Kaufmann

(Instructed by Christian Khan Solicitors )


Lord Pannick QC

John Beggs

(Instructed by Directorate of Legal Services

Metropolitan Police Service )

Hearing dates :

24 and 25 NOVEMBER 2008






Austin (FC) (Appellant) & another v Commissioner of Police of the Metropolis (Respondent)

[2009] UKHL 5


My Lords,

1.  One of the features of a vigorous and healthy democracy is that people are allowed to go out onto the streets and demonstrate. Thousands of demonstrations take place each year in London. Experience has shown that for the most part gatherings of this kind are peaceful. The police, on whom the responsibility of maintaining public order rests, seek to facilitate rather than impede their activities. Unfortunately, human nature being what it is, this is not always possible. Sometimes an event attracts people who do not share the peaceful intentions of the organisers. Sometimes it is the organisers themselves whose intentions are anything but peaceful. On those occasions it may be necessary for the police to take control of the event to ensure public safety and minimise the risk of damage to property. The event with which this case is concerned was such an occasion.

2.  The ways in which the police will seek to control the event will vary from case to case. In this case their policy was one of containment. Its consequence was that a large number of people were enclosed in the place where they had gathered within a police cordon. They were prevented for many hours from leaving it. Article 5(1) of the European Convention on Human Rights provides that no one shall be deprived of his liberty save in the cases which that article specifies. The appellant was one of those within the police cordon. The question which this case raises is whether the way in which she was treated was incompatible with her Convention right to liberty. Underlying that question is an important issue of principle. The right which is guaranteed by article 5(1) is an absolute right. But it must first be held to be applicable. To what extent, if at all, is it permissible in the determination of that issue to balance the interests of the individual against the demands of the general interest of the community? The appellant submits that it is plain that she was deprived of her right to liberty. She says that the reason why the cordon was put in place and kept there for so long is irrelevant. If she is right, she must succeed in this appeal. If she is wrong, the judge’s findings are against her. They show conclusively that the sole purpose of the cordon was to maintain public order, that it was proportionate to that need and that those within the cordon were not deprived of their freedom of movement arbitrarily.

The facts

3.  On 1 May 2001 at about 2 pm a crowd of demonstrators marched into Oxford Circus from Regent Street South. They were joined later by others who entered the Circus, or tried to enter it, from all directions. By the end of the afternoon some 3,000 people were within the Circus and several thousands more were gathered outside in the streets that lead into it. The appellant was among those who went to Oxford Circus as part of the crowd to demonstrate, but she was not one of the organisers. She was prevented from leaving the area by the police cordon for about seven hours. On 29 April 2002 she brought a claim for damages against the respondent for false imprisonment and for breach of her right under article 5(1) of the Convention to liberty. The case went to trial before Tugendhat J who, having analysed the evidence with great care and attention to detail, dismissed her claims: [2005] EWHC 480 (QB); [2005] HRLR 647. What follows is a much abbreviated summary of his account of the event.

4.  1 May 2001, May Day, was not a public holiday in England. Nevertheless the police had been expecting demonstrations. On three previous occasions within the past two years, when the theme had been protests against capitalism and globalisation, they had resulted in very serious breakdowns in public order. The officers in charge of policing on this occasion were the most experienced public order officers in England. They feared that a breakdown in public order would be repeated in 2001. About 6,000 police officers were deployed on the streets of London. This was about as large a number as had ever been so deployed. The Special Branch assessment was that there would be about 500 to 1,000 hard core demonstrators looking for confrontation, disorder and violence. The organisers had deliberately given no notice to the police of their intentions. They had refused to co-operate with them in any way at all. Their literature included incitement to looting and violence, multiple protests to avoid the police and the encouragement of secrecy. Their publicity material had led the police to expect a gathering on Oxford Circus at 4 pm. But no warning was given of any march or procession or of the route which the demonstrators might take. The arrival there of such a large procession at 2 pm, when the area was already busy with shoppers and traffic, took the police by surprise and led them to respond as they did. They decided that, if they were to prevent violence and the risk of injury to persons and damage to property, they had no alternative but to impose an absolute cordon round the entire crowd that had gathered there.

5.  The imposition of the cordon had not been decided upon in advance. Things might have been different if the crowd had built up gradually. As it was, the police decided that if they did not take control of the crowd when it arrived the opportunity to do this might not recur. Their aim was to establish control over it prior to and during a planned dispersal. It was not possible to impose the cordon without including the appellant in it because she was standing not on a pavement at the perimeter of the Circus but on the roadway. It took about 5 to 10 minutes to put in place a loose cordon, and about 20 to 25 minutes to put in place a full cordon. The full cordon was effectively in place by about 2.20 pm. Five minutes later, at 2.25 pm, a senior officer started to plan for the start of a controlled dispersal. At 2.45 pm he had reached the point where he expected the release to start within about an hour. On a number of occasions the order was given to start controlled release but it had to be suspended because of the conduct of protesters either inside or outside the contained area. At 4 pm the crowd were told that they were being contained to prevent a breach of the peace and that they would be released in due course by a prescribed exit. They were asked to be patient. The judge was satisfied that the police had no intention of holding the demonstrators longer than was necessary. The object was not to hold the crowd for any reason other than to carry out a controlled release as soon as it was practicable and safe to do so. In the event the dispersal was not completed until 9.30 pm.

6.  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 pm and were refusing to accept control by the police.

7.  The judge held that it was not practicable for the police to release the crowd earlier than they did. For them to have done so earlier would have been a complete abnegation of their duty to prevent a breach of the peace and to protect members of the crowd and third parties, including the police, from serious injury. The policy that was communicated to police officers was that they should seek to identify and release those who obviously had nothing to do with the demonstration but were caught up in the cordon because they had just happened to be in Oxford Circus. This was subject to their discretion to release individual demonstrators. Up to about 400 individuals were released individually. Some of them were bystanders who had been caught up in the demonstration. Others had medical problems or had suffered some injury. The judge was satisfied that there was no other release policy which could and should have been adopted, especially as the police had had no opportunity to plan for the event.

8.  Few of those who were attending the demonstration can have been unaware that there was a substantial risk of violence. On 24 April 2001 an article by the Mayor of London, Ken Livingstone, appeared in the Evening Standard newspaper. He said that he supported the aims of the demonstration, which would be calling for the cancellation of Third World debt, the eradication of poverty, a stop to the privatisation of the London Underground and an end to pollution of the environment. But on this occasion violence was central to the objectives of its organisers. What was planned was not a peaceful protest that might go wrong but a deliberate attempt to create destruction in the capital. He urged all Londoners to stay away from it. The appellant had taken part in such events before. The judge held that when she chose to join this demonstration she was well aware that the protest was not expected by anyone to end without serious violence. There is no suggestion that she herself was involved in any violent acts or that she had any other intention than to engage in peaceful protest. Nevertheless she willingly took the risk of violence on the part of other demonstrators with whom she chose to be present, and her own conduct was unreasonable in joining with others to obstruct the highway.

9.  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. The appellant, like others who were present, was not adequately dressed for the occasion. She had an 11 month old baby who was in a crèche. She had planned to be on the demonstration for two or three hours before collecting her, but in the event she was prevented from doing so. Nevertheless the judge held that she was not much distressed, but was stimulated 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 TV interview and responded to questions from the press.

10.  The judge said that there was no deprivation of liberty during the period between 2.00 pm and 2.20 pm, as the cordon was not absolute and people were free to leave by the pavements if they wished to do so. But during the subsequent period no one was free to leave without permission. He held that once the full cordon was in place there was a deprivation of liberty within the meaning of article 5(1), but that the containment was capable of being justified under article 5(1)(c) as the police reasonably believed that all those present within the cordon, including the appellant, were demonstrators and were about to commit a breach of the peace. He rejected the appellant’s claim at common law for false imprisonment. The Court of Appeal (Sir Anthony Clarke MR, Sir Igor Judge P and Lloyd LJ) dismissed her appeal: [2007] EWCA Civ 989; [2008] QB 660. In doing so however it upheld the appellant’s appeal against the judge’s finding that the police reasonably believed that all those within the cordon were about to commit a breach of the peace. The police were aware that there were those in the crowd who would not do this, and it was wrong to say that everyone in the crowd was a suspect: para 61. But the police did what was necessary to avoid an imminent breach of the peace. In this very exceptional case the actions of the police were lawful at common law.

11.  There is no appeal to your Lordships against the Court of Appeal’s findings on the common law. The respondent accepts that, if the appellant’s detention was an unlawful deprivation of liberty contrary to article 5(1) of the Convention, the finding that this was a lawful exercise of breach of the peace powers at common law cannot stand. The appellant for her part accepts that, if her detention did not amount to an unlawful deprivation of liberty contrary to article 5(1), she was contained within the cordon in the lawful exercise of police powers. Her appeal is directed solely to the Court of Appeal’s decision that her rights under article 5(1) of the Convention were not infringed.

Article 5(1)

12.  Article 5(1) of the Convention provides:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)  the lawful detention of a person after conviction by a competent court;

(b)  the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

13.  The list in sub-paragraphs (a) to (f) of the cases where deprivations of liberty are permitted is exhaustive and is to be narrowly interpreted, as the European Court of Human Rights has repeatedly emphasised: Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 57; Kurt v Turkey (1998) 27 EHRR 373, para 122: Secretary of State for the Home Department v JJ and others [2007] UKHL 45; [2008] 1 AC 385, para 5, per Lord Bingham of Cornhill. Of those listed, the only ones that it was suggested might be applicable in this case are those referred to in sub-paragraphs (b) and (c). In view of its decision that there had been no deprivation of liberty in this case the Court of Appeal found it unnecessary to decide whether, if there had been a deprivation of liberty, it would have been justified under either of these paragraphs.

14.  The United Kingdom has not ratified article 2 of Protocol 4, nor are the rights that it sets out among the Convention rights within the meaning of the Human Rights Act 1998. But it is convenient to set out its provisions here too, as it is mentioned in some of the Strasbourg authorities that I am about to refer to:

“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country including his own.

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ‘ordre public‘, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”

15.  The rights mentioned in article 2 of Protocol 4 are relevant only in so far as they indicate that there is a distinction, for Convention purposes, between conditions to which a person may be subjected which are a restriction on his movement and those which amount to a deprivation of his liberty. The European Court has said that under its established case law article 5 is not concerned with mere restrictions on liberty of movement. They are governed by article 2 of Protocol 4. This is an important distinction, even though the rights that this article describes are not binding on the United Kingdom. Article 2 of Protocol 4 is a qualified right. The protection that article 5(1) provides against a deprivation of liberty is absolute, subject only to the cases listed in sub-paragraphs (a) to (f). In McKay v United Kingdom 44 (2006) 44 EHRR 827, para 30, the court said:

“Article 5 of the Convention is, together with articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of an individual and as such its importance is paramount. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty.”

Article 2 of Protocol 4 helps to put the ambit of this absolute right into its proper perspective.

16.  In Secretary of State for the Home Department v JJ and others [2008] 1 AC 385, para 35, Lord Hoffmann said that the point about the right to liberty under article 5(1) is that it is unqualified. Its place in the scheme of other unqualified rights shows that it deals with literal physical restraint. Such is the revulsion against detention without charge or trial that it ordinarily trumps even the interests of national security. Liberty of movement may be restricted in the interests of public safety or to maintain public order. But the right to liberty under article 5(1) is absolute. As was observed in Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 58, this article contemplates individual liberty in its classic sense - the physical liberty of the person. Moreover a comparison between article 5 and the other normative provisions of the Convention and its Protocols shows that it is not concerned with mere restrictions upon liberty of movement. In this case the appellant’s liberty of movement was restricted by the police cordon. The question is whether this was also a deprivation of liberty.

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.

19.  The same point was developed more fully by Sir Gerald Fitzmaurice in his dissenting opinion in Guzzardi. In para 5 he said that, while the question whether the conditions of the applicant’s existence on the island were sufficiently stringent to amount to a sort of imprisonment was a matter of appreciation and opinion, what to him decisively tilted the balance was the fact of article 2 of Protocol 4 to the Convention. In para 6 he said that its existence showed that those who framed the Convention did not actually contemplate that article 5 should extend to mere restrictions on freedom of movement, or they would not have considered it necessary to draw up a separate Protocol about that.

“The resulting picture is that article 5 of the Convention guaranteed the individual against illegitimate imprisonment, or confinement so close as to amount to the same thing - in sum against deprivation of liberty stricto sensu - but it afforded no guarantee against restrictions (on movement or place of residence) falling short of that.”

In para 7 he said that he deduced from the existence of article 2 of Protocol 4 that the concept of deprivation of liberty under article 5 of the Convention must be interpreted fairly strictly.

20.  In Secretary of State for the Home Department v JJ and others [2008] 1 AC 385, para 37, Lord Hoffmann referred to the paradigm case, which he said amounted to a complete deprivation of human autonomy and dignity. He gave this description of it:

“The prisoner has no freedom of choice about anything. He cannot leave the place to which he has been assigned. He may eat only when and what his gaoler permits. The only human beings he may see or speak to are his gaolers and those whom they allow to visit. He is entirely subject to the will of others.”

But he recognised that one might have some deviation from the standard case without it ceasing to be a deprivation of liberty. He referred to Judge Matscher’s comment in his dissenting opinion in Guzzardi v Italy (1980) 3 EHRR 333 that the concept had a core which could not be the subject of argument but which was surrounded by a “grey zone” where it was extremely difficult to draw the line. He accepted that the concept may include features which lack certain features of the paradigm case. The difference of opinion among the members of the Appellate Committee in JJ shows how difficult it may be to decide where the line should be drawn in such cases.