|Judgments - Austin (FC) (Appellant) & another v Commissioner of Police of the Metropolis (Respondent)
21. Drawing these together, the following general points can be made. Whether there is a deprivation of liberty, as opposed to a restriction of movement, is a matter of degree and intensity. Account must be taken of a whole range of factors, including the specific situation of the individual and the context in which the restriction of liberty occurs: Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 59; Guzzardi v Italy (1980) 3 EHRR 333, para 92; HM v Switzerland (2002) 38 EHRR 314, para 42; HL v United Kingdom (2004) 40 EHRR 761, para 89; Foka v Turkey, application no 28940/95, 24 June 2008, para 74; Stefanov v Bulgaria, application no 65755/01, 22 May 2008. And it is helpful to have regard to how the case in hand compares with the core or paradigm case, which cannot be the subject of argument. The court seems to have had this mind in Guzzardi v Italy, para 95, when it referred to the difference between the applicants treatment and classic detention in prison or strict arrest imposed on a serviceman, as in Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 63. Sir Gerald Fitzmaurice clearly did when he referred in para 6 of his opinion to confinement so close as to amount to the same thing. On the other hand, as the court observed in Guenat v Switzerland (1995) 81-B DR 130 and again in Stefanov v Bulgaria, para 71, article 5(1) may apply to deprivations of liberty of even a very short duration.
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 persons 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.
24. The restrictions that were imposed by the police cordon in this case may be thought, as compared with the examples that I have just mentioned, to have been greater in degree and intensity. But Lord Pannick QC for the respondent submitted that one could not sensibly ignore the purpose of the restriction or the circumstances. Detention in the paradigm sense was not in the minds of anyone. There would have been no question of there being a deprivation of liberty if the cordon had remained in place for only 20 minutes. The fact that it remained in place for much longer ought to make no difference, as the fact that it was not possible to release everyone from the cordon earlier was due to circumstances that were beyond the control of the police. This was a case, he said, where the answer to the question whether what was done was within the scope of article 5(1) was to be determined by striking a fair balance between the rights of the individual and the interests of society. It was, of course, necessary to give full effect to the fact that article 5 was a fundamental right whose importance was paramount. But the fact that infringement was not open to justification except in the cases listed in sub-paragraphs (a) to (f) pointed to the need for care to be taken to identify the limits of its application.
25. Ms Williams QC for the appellant, on the other hand, said that the purpose for which the measure was employed was irrelevant. The fact that it was a necessary response and was proportionate was a pre-condition for establishing the measures legality for the purpose of sub-paragraphs (a) to (f) of article 5(1). But it went no further than that. There was no balance to be struck when consideration was being given to the initial question whether article 5(1) applied to the measures adopted by the police. Questions of purpose and balance only arose when consideration was being given to the cases listed in sub-paragraphs (a) to (f).
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 courts 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 applicants 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 mothers 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 described in Secretary of State for the Home Department v JJ and others  1 AC 385, para 37, by Lord Hoffmann. 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 applicants 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 individuals 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  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 individuals 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 persons 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.
Article 5(1)(b) and (c)
35. The respondents written case contains submissions directed to the cases mentioned in article 5(1)(b) and (c) as alternatives to his principal submission that there was no deprivation of liberty within the meaning of that article in the circumstances of this case. He submits that the police conduct was lawful under article 5(1)(b), as the police were acting in a proportionate manner to secure the appellants fulfilment of an obligation prescribed by law, namely the common law obligation to assist a constable in dealing with a breach of the peace. Alternatively he submits that the police confined the appellant lawfully under article 5(1(c), because they reasonably believed that this was necessary to prevent her committing the common law offence of refusing to aid a constable to prevent a breach of the peace. He accepts that to develop this argument he would need to persuade your Lordships that the reasoning in Lawless v Ireland (No 3) (1961) 1 EHRR 15 as to the way this subparagraph should be construed was unsound.
36. Although he did not abandon these arguments, Lord Pannick did not develop either of them in oral argument. The Court of Appeal found it unnecessary to reach a concluded view on these points, and so do I. But in my opinion it would be most unfortunate if the police were to have to rely on these sub-paragraphs, or either of them, when they were considering whether or not it was lawful for them to resort to measures of crowd control. It is obvious that neither of them were designed with that way of preserving public order in mind. It is safe to assume that, if they had thought that such measures were at risk of being held within the ambit of article 5(1), the framers of the Convention would have used language similar to that which is to be found in article 10(2). As it is, the tests which they lay down, which must be construed strictly, are highly specific to the position of the individual whose right to liberty is guaranteed by the article. They refer to what the court in Guzzardi v Italy (1980) 3 EHRR 333, para 92 described as the concrete situation of the person who complains that his right to liberty has been violated. The police would have to identify each and every individual in the crowd and determine whether it was necessary in his particular case for his liberty to be restricted. In almost every situation that can be imagined this would be an impossible exercise - especially in an emergency, when measures of crowd control were most needed to preserve life and limb and avoid serious damage to property.
37. If measures of this kind are to avoid being prohibited by the Convention therefore it must be by recognising that they are not within the ambit of article 5(1) at all. In my opinion measures of crowd control will fall outside the area of its application, so long as they are not arbitrary. This means that they must be resorted to in good faith, that they must be proportionate and that they are enforced for no longer than is reasonably necessary.
38. I would hold, in agreement with the Court of Appeal, that the restriction on the appellants liberty that resulted from her being confined within the cordon by the police on this occasion met these criteria. This was not the kind of arbitrary deprivation of liberty that is proscribed by the Convention, so article 5(1) was not applicable in this case. I would respectfully endorse the further remarks of my noble and learned friend, Lord Walker of Gestingthorpe, with which I am in full agreement. I would dismiss the appeal.
LORD SCOTT OF FOSCOTE
39. I have had the advantage of reading in draft the opinions prepared by my noble and learned friends, Lord Hope of Craighead and Lord Neuberger of Abbotsbury, and am in full agreement with the reasons they have given for dismissing the appeal. I agree, 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 GESTINGTHORPE
40. I have had the great advantage of reading in draft the opinion of my noble and learned friend Lord Hope of Craighead. I am in full agreement with it, and for the reasons given by Lord Hope I would dismiss this appeal. Because of the importance of the appeal, I add a few remarks of my own, but they are no more than footnotes to Lord Hopes opinion.
41. The opening words of article 5(1) refer to the right to liberty and security of person. There is no clear Strasbourg jurisprudence as to what security of person adds to liberty", but at least the added words emphasise that the article is concerned with liberty of the person (rather than, for instance, intellectual or economic freedom). In Bozano v France (1986) 9 EHRR 297, a case of disguised extradition", the Court (paras 59 and 60) attached weight to the fact that the applicant had been transported in handcuffs for 12 hours in concluding that his treatment was not compatible with the right to security of person. In some more recent cases (such as Kurt v Turkey (1999) 27 EHRR 373, paras 122-124, and Timurtas v Turkey (2000) 33 EHRR 121, paras 99-106) the Court has referred to security of person in connection with the ill-treatment or disappearance of prisoners while in state custody (see also McKay v United Kingdom (2006) 44 EHRR 827, para 30 and footnote 4). All this is consistent with close personal confinement, against ones will and to ones discomfort, being the paradigm case of a breach of article 5(1).
42. It is worth noting that article 2 of the Fourth Protocol, which the United Kingdom has not ratified, is not a new measure. It dates from 1963, and it was therefore in existence when all the Strasbourg authorities cited to your Lordships were decided. In Guzzardi v Italy (1980) 3 EHRR 333 it was referred to in the dissenting opinion of Sir Gerald Fitzmaurice, who noted that it was not an issue in that case because it had not been ratified by Italy. It is also worth noting that the qualifications in article 2 of the Fourth Protocol to the right of liberty of movement and freedom to choose ones residence (set out in para 14 of Lord Hopes opinion) constitute wider and less demanding grounds of justification than the six exceptions in article 5(1). As Lord Hope observes, article 2 of the Fourth Protocol puts the ambit of the absolute article 5(1) right into its proper perspective.
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.