Policing power
Date: 10 April 2009
Authors: Neil Parpworth
Issue: Vol 159, Issue 7364
Categories: Features, Public
In Austin and another v Commissioner of Police of the Metropolis [2007] EWCA Civ 989, [2008] 1 All ER 564 the Court of Appeal decided that in exceptional circumstances, the innocent bystander may have his freedoms restricted in order that the peace be preserved and public order maintained. The House of Lords has recently heard an appeal against the Court of Appeal's decision in Austin (see [2009] UKHL 5). The appeal did not relate to the Court of Appeal's findings in relation to the common law powers of the police. Rather, it was concerned with the decision that the appellant's rights under Art 5(1) of the European Convention on Human Rights (the Convention) had not been infringed by the police officers' actions. Since the case raised a novel point not previously decided by the European Court of Human Rights (ECtHR), it merits further consideration.
On 1 May 2001, a crowd of demonstrators marched into Oxford Circus at approximately 2pm. By the end of the day, there were approximately 3,000 people in Oxford Circus and several thousand others were gathered on the periphery. The police were aware that a demonstration was to take place in the vicinity despite the fact that none of the organisers had given them prior notice of the event. From about 2.20pm onwards, none of the people who had entered Oxford Circus was allowed to leave. After having been detained within the police cordon for a period of up to seven hours, those present were finally allowed to disperse. The appellant had planned to demonstrate for between two and three hours before collecting her baby from a crêche. On a number of occasions she asked police officers to permit her to leave the cordon. Each request was, however, refused. It was in respect of her containment that the appellant brought an action against the Commissioner for damages at common law for false imprisonment and under s 7 of the Human Rights Act 1998 (HRA 1998) in respect of her right to liberty as guaranteed by Art 5 of the Convention. These claims were dismissed before Mr Justice Tugendhat ([2005] EWHC 480 (QB)) and the Court of Appeal.
The judgment
Art 5(1) of the Convention provides that: “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”. It then proceeds to state those cases in which a deprivation of liberty is acceptable such as where, for example, it involves “the lawful detention of a person after conviction by a competent court” (Art 5(1)(a)). In Secretary of State for the Home Department v JJ and others [2007] UKHL 45, [2007] All ER (D) 489 (Oct) Lord Bingham noted that the cases listed in Art 5(1)(a)–(f) are “those in which any democratic state is likely to exercise a power to detain” (at [5]). He further noted that the jurisprudence of the Strasbourg Court has “repeatedly emphasized” that the list is “exhaustive and is to be narrowly interpreted”. Commenting on the effect of the Convention provision in the same case, Lord Hoffmann remarked: “The point about the right not to be deprived of one's liberty under Art 5(1) is that, subject to the exceptions, it is unqualified. Such is the revulsion against detention without charge or trial, such is this country's attachment to habeas corpus, that the right to liberty ordinarily trumps even the interests of national security” (at [35]).
Austin
In delivering his opinion in the House of Lords in Austin, Lord Hope noted there is a distinction “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” (at [15]). It was clear on the facts that the appellant's liberty of movement had been restricted by the police cordon. The question, however, was whether that cordon could also be said to have deprived her of her liberty.
In considering whether the threshold had been crossed, Lord Hope observed: “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” (at [17]).
The facts of Austin could therefore be distinguished from those in R (Gillan) v Commissioner of the Police of the Metropolis [2006] UKHL 12, [2006] 2 AC 307, where the interference with the appellant's freedom of movement in order to effect a stop and search pursuant to s 44 of the Terrorism Act 2000 had been “merely transitory”. Having regard to the jurisprudence of the ECtHR (as required HRA 1998, s 2), and in particular the decisions in Engel v The Netherlands (No.1) (1976) 1 EHRR 647 and Guzzardi v Italy (1980) 3 EHRR 333, Lord Hope noted that the cumulative effect of the authorities showed: “…that it is not enough that what was done could be said in general 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 Art 5(1). Whether it has been crossed must be measured by the degree or intensity of the restriction” (at [18]).
Paradigm case
The “paradigm case” to which Lord Hope referred had previously been considered by Lord Hoffmann in JJ, where it had been identified as a deprivation of liberty involving incarceration in a prison cell. It represented the paradigm case because: “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 whom 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” (at [37]).
In determining Art 5 cases, the matter becomes more difficult the further the facts deviate from the paradigm case. Thus in JJ itself, the House of Lords was split 3:2 on the question whether the cumulative effect of the conditions attached to a control order made under the Prevention of Terrorism Act 2005 amounted to a deprivation of liberty within the meaning of Art 5(1). In Austin, Lord Hope was of the opinion that the case was not “simply a threshold case”. Rather, it raised “a more fundamental issue of principle”, ie whether it was relevant “when considering whether a case falls within the ambit of Art 5(1), to have regard to the purpose for which a person's freedom of movement has been restricted” (at [22]).
If purpose was relevant, “it must be to enable a balance to be struck between what the restriction seeks to achieve and the interests of the individuals” (at [27]). Although Lord Hope recognised that the issue of balance was not mentioned in either Engel or Guzzardi and that it does not feature in the wording of Art 5, he was nevertheless of the opinion 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” (at [27]).
Strasbourg guidance?
Having considered a number of Strasbourg decisions, none of which provided clear guidance on the question whether Art 5(1) was engaged in the circumstances of Austin, Lord Hope was of the view that there was room “for a pragmatic approach which takes full account of the circumstances” (at [34]). Applying such an approach, his Lordship observed: “So any steps that are taken must be resorted to in good faith and must be proportionate to the situation which has made the measure 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 Art 5 rights of the individual members of the crowd whose freedom of movement is restricted by them” (at [34]).
Thus in Lord Hope's judgment, measures of crowd control fall outside the scope of Art 5(1) provided that they are not effected in an arbitrary manner. The other law lords who heard the appeal were also agreed that it should be dismissed. Lord Walker remarked that in a case such as Austin: “…it seems to me unrealistic to contend that Art 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” (at [61]).
White paper
In the white paper Rights Brought Home: The Human Rights Bill (1997), Cm 3782, the government of the day sought to make the case for incorporating Convention rights into UK law. One of the “distinct benefits” which it contended would flow from incorporation was that “British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe” (at para 1.14). The decision in Austin provides a good example of the House of Lords doing just that. Although the purpose of a confinement which does amount to a deprivation of liberty is clearly relevant to whether it can be justified under Art 5(1)(a)–(f), their lordships have gone further by holding that purpose is also relevant at an earlier stage; in determining whether the relevant containment has crossed the threshold so as to amount to a deprivation of liberty in the legal rather than the colloquial sense. Their decision thus provides the police with some useful guidance in connection with the policing of violent demonstrations. It makes it clear that a substantial period of containment may be an appropriate course of action provided that the containment is for a legitimate purpose and lasts for no longer than the circumstances require. If, however, a cordon was maintained “beyond the time necessary for crowd control, in order to punish, or “to teach a lesson” to, the demonstrators within the cordon”, then, as Lord Neuberger noted in Austin itself, the circumstances would be different. In such a case, the containment would not be for a legitimate purpose and accordingly Art 5(1) would be engaged.
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