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

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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 CARSWELL

My Lords,

48.  I have had the advantage of reading in draft the opinion prepared by my noble and learned friend, Lord Hope of Craighead, with which I am in complete agreement. For the reasons which he has given I too would dismiss the appeal.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

49.  Article 5(1) of the European Convention begins by stating that everyone has “the right to liberty and security of person", and it goes on to provide that “[n]o one shall be deprived of his liberty” subject to six specified exceptions. Those exceptions include, in paras (b) and (c), “the lawful arrest or detention of a person” in certain specified events.

50.  In McKay v United Kingdom (2007) 44 EHRR 41, para 30, the Grand Chamber of the European Court of Human Rights (“the ECtHR”) described article 5, along with articles 2, 3 and 4, as being “in the first rank of fundamental rights that protect the physical security of the individual and as such its importance is paramount". As Lord Hoffmann said in Secretary of State for the Home Department v JJ [2008] 1 AC 385, para 35, “[t]he point about the right not to be deprived of one’s liberty under article 5 is that, subject to the exceptions, it is unqualified“.

51.  Accordingly, 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 (2007) 44 EHRR 41, para 30, immediately following the passage quoted above, 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 ECtHR.

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 principles” 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 ECtHR 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. In that connection, the bare facts so far recited do not represent, by any means, “all the circumstances of the case".

57.  In very summary terms, those circumstances included the following significant features, all of which were identified by the Judge, after a very full hearing:

?????????????????  The cordon was imposed purely for crowd control purposes, to protect people and property from injury;

?????????????????  The cordon was necessary as many of the demonstrators were bent on violence and impeding the police, and its imposition was in no way attributable to policing failures;

?????????????????  The purpose and reason for imposing the cordon were at all times plain to those constrained within it;

?????????????????  The cordon lasted for as short a time as possible; during its imposition, the police attempted to raise it on a number of occasions, but decided that it was impractical;

?????????????????  The inclusion of the appellant and the demonstrators constrained with her within the cordon was unavoidable;

?????????????????  Those who were not demonstrators, or were seriously affected by being confined, were promptly permitted to leave;

?????????????????  Although the appellant suffered some discomfort, it was limited, and the police could not have alleviated it; further, she could move around within the cordon;

?????????????????  The appellant knew in advance that many of the demonstrators intended to cause violence, and that the police were concerned about this.

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.

64.  Furthermore, it is worth bearing in mind that, at least as I see it, if the restraint in the present case did amount to detention within article 5, it would not be possible for the police to justify the detention under the exceptions in paras (b) or (c), not least because of the reasoning of the European Court in Lawless v Ireland (No 3) (1961) 1 EHRR 15. I consider that the fact that the restraint in the present case could not be justified under any of the exceptions in paras (a) to (f) supports the contention that the constraint did not amount to detention within article 5 at all. It would appear to me to be very odd if it was not be open to the police to act as they did in the instant circumstances, without infringing the article 5 rights of those who were constrained.

 
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