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AUSTIN AND OTHERS v. THE UNITED KINGDOM - 39692/09 [2012] ECHR 459 (15 March 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/459.html
Cite as:
55 EHRR 14,
(2012) 55 EHRR 14,
[2012] Crim LR 544,
32 BHRC 618,
[2012] ECHR 459
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GRAND
CHAMBER
CASE OF AUSTIN AND OTHERS v. THE UNITED KINGDOM
(Applications
nos. 39692/09, 40713/09 and 41008/09)
JUDGMENT
STRASBOURG
15 March
2012
This judgment is final
but may be subject to editorial revision.
In the case of Austin and Others
v. the United Kingdom,
The
European Court of Human Rights (Grand Chamber), sitting as a Grand
Chamber composed of:
Françoise
Tulkens, President,
Nicolas
Bratza,
Jean-Paul
Costa,
Josep
Casadevall,
Nina
Vajić,
Dean
Spielmann,
Lech
Garlicki,
Ineta
Ziemele,
Päivi
Hirvelä,
Giorgio
Malinverni,
Luis
López Guerra,
Ledi
Bianku,
Kristina
Pardalos,
Ganna
Yudkivska,
Vincent
A. De Gaetano,
Angelika
Nußberger,
Erik
Møse, judges,
and
Michael O’Boyle,
Deputy
Registrar,
Having
deliberated in private on 14 September 2011 and 15 February 2012,
Delivers
the following judgment, which was adopted on the latter date:
PROCEDURE
The
case originated in one application (no. 39692/09)
lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a British
national, Ms Lois Amelia Austin (“the first applicant”),
on 17 July 2009; one application (no. 40713/09) lodged by a dual
Greek/Australian national, Mr George Black (“the second
applicant”) on 27 July 2009; and one application (no. 41008/09)
lodged by a dual British/Australian national, Ms Bronwyn
Lowenthal (“the third applicant”) and a British national,
Mr Peter O’Shea (“the fourth applicant”), on
27 July 2009. All three applications were brought against the
United Kingdom of Great Britain and Northern Ireland.
The
first applicant was represented before the Court by Louise
Christian, Katharine Craig, Heather Williams QC and Philippa
Kaufmann. The second applicant was represented by James Welch. The
third and fourth applicants were represented by Mr Ben Emmerson QC,
Mr Michael Fordham QC, Mr Alex Bailin and Mr John Halford. The United
Kingdom Government (“the Government”) were represented by
their Agent, Mr John Grainger, Foreign and Commonwealth Office.
3. The
applicants complained that their restriction within a police cordon
(a measure known as “kettling”) for up to seven hours
during the course of a demonstration in central London amounted to a
deprivation of their liberty in breach of Article 5 § 1 of the
Convention.
The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 21 September 2010 the
Court decided to join the applications and
communicate them to the Government. It also
decided to rule on the admissibility and merits of the applications
at the same time (Article 29 § 1). On 12 April 2011 the
Chamber decided to relinquish jurisdiction to the Grand Chamber.
The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court.
The
applicants and the Government each filed a memorial on the
admissibility and merits.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 14 September 2011 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr J.
Grainger, Agent,
Mr D.
Pannick QC,
Mr J. Segan,
Counsel,
Mr C.
Papaleontiou,
Ms M.
Purdasy, Advisers;
(b) for
the applicants
Mr B. Emmerson QC,
Ms P.
Kaufmann QC,
Ms A.
Macdonald,
Mr I.
Steele, Counsel,
Ms K. Craig,
Mr J.
Halford,
Mr J.
Welch, Advisers,
Ms L.A.
Austin,
Mr G. Black,
Ms B.
Lowenthal, Applicants.
The
Court heard addresses by Mr Pannick, Ms Kaufmann and Mr Emmerson.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
first applicant was born in 1969 and lives in Basildon; the second
applicant was born in 1949 and lives in London; the third applicant
was born in 1972 and lives in London; and the fourth applicant was
born in 1963 and lives in Wembley.
The
facts of the case may be summarised as follows.
A. The applicants’ accounts of what happened to
them on 1 May 2001
On
1 May 2001, in the context of a demonstration in central London they
were contained within a police cordon at Oxford Circus (the junction
between Regent Street and Oxford Street).
The
first applicant, Ms 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 a
protest against globalisation outside the World Bank before walking
with other protesters 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 but was told
that she could not leave and that it was not known how long it would
be before she would be able to leave the area. Ms Austin arranged for
a friend to collect the child from the crèche. She was finally
allowed to leave at about 9.30 p.m.
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 allowed out of the cordon and was informed
that there was an exit for non protesters 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 able to exit the cordon until 9.20
p.m.
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. She was held
within the cordon at Oxford Circus until 9.35 p.m. She and others
repeatedly requested to be allowed to leave the cordoned area but was
told by the policemen she approached that they were under orders to
allow no-one to pass.
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 able to leave at approximately 8 p.m.
B. The domestic proceedings
1. The High Court
Following
the events on 1 May 2001 approximately 150 people who had been
confined in Oxford Circus 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. They
commenced proceedings in the High Court, claiming damages for false
imprisonment and under the Human Rights Act 1998 for breach of the
right to liberty guaranteed by Article 5 of the Convention. The first
applicant also initially advanced a claim for interference with her
rights of freedom of expression and assembly contrary to Articles 10
and 11 of the Convention, but she subsequently abandoned these
claims. 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.
(a) The facts as found by the Mr Justice
Tugendhat
The
hearing in the High Court before Tugendhat J lasted three weeks,
including six days of oral evidence. He considered live evidence from
18 lay witnesses and two experts, statements from a further 138
witnesses, thousands of pages of documentary evidence and video
footage from hand-held and security cameras and police helicopters.
In his judgment, delivered on 23 March 2005 ([2005] EWHC 480 (QB)),
Tugendhat J devoted 500 paragraphs to his assessment of the evidence
and findings of fact. His factual findings can be summarised as
follows.
Tugendhat
J found that on 18 June and 30 November 1999 and May Day 2000 there
had occurred very serious breakdowns in public order in London, which
the police feared would be repeated in 2001. The theme of all three
demonstrations was protest against capitalism and globalisation. The
organisers of the event on 18 June 1999 had failed to co-operate with
the police and had distributed publicity material similar to that
distributed by the organisers of the May Day 2001 demonstration.
During the afternoon of 18 June 1999 a crowd of some 3,000 to 5,000
people, wearing masks, caused approximately GBP 2 million worth of
damage and injury to members of the public and police officers,
eleven of whom required hospital treatment. Demonstrations on these
themes had also resulted in serious breakdowns in public order in
other countries at about this time, including in Seattle on 30
November 1999 (the World Trade Organisation meeting), in Washington
DC on 16 April 2000 (the International Monetary Fund meeting), in
Melbourne on 11-13 September 2000 (World Economic Forum Asia Pacific
summit), in Prague on 26 September 2000 (another International
Monetary Fund meeting), and on 22 April 2001 in Quebec (a Summit of
the Americas meeting). The planning for May Day 2001 reflected
experience at these and earlier demonstrations, particularly in
London, and recommendations made in the light of them.
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 at 24 locations across London based on the
squares of the Monopoly board game. 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 and they
attempted to maintain secrecy about the locations and nature of the
protest. Protesters were directly and indirectly encouraged to wear
masks and to engage in looting and violence (see Tugendhat J’s
judgment, §§ 206 225). The intelligence available
to the Police Special Branch was that there would be “500 to
1,000 hard core demonstrators looking for confrontation, violence and
to cause public disorder”. The Special Branch assessment was
that the protest would involve one of the most serious threats to
public order ever seen in London, with 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. On 24 April 2001 the
Mayor of London wrote an article in the principal London evening
newspaper, expressing the view that the organisers of the May Day
protest deliberately sought to create destruction, and urging
Londoners to stay away. Similar warnings were reported in a number of
other newspapers in March and April 2001.
The
police plan for the day involved the deployment of nearly 6,000
officers on foot wearing high visibility jackets, in addition to
mounted police officers. At that time, this was about the largest
number of police officers that had ever been deployed in London. 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.
During
the morning of 1 May 2001 there were a number of fairly small
demonstrations across London. At around 1 p.m. 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. A
number of people moving up Regent Street were wearing face masks. The
police intelligence had indicated that the gathering at Oxford Circus
was to take place at 4 p.m. and the size of the crowd there at this
time took them by surprise, with insufficient officers in the area to
prevent more people entering the area.
At
approximately 2 p.m. the police decided to put up a cordon to contain
the crowd. The decision was based on the available intelligence,
which had estimated that 500-1,000 individuals intent on violence
would take part in the May Day protest and on what had occurred at
previous similar demonstrations, rather than on the behaviour of the
crowd up until that point. The decision was made in conscious
exercise of common law powers to prevent a breach of the peace. Once
the decision to put in a cordon was made, it took five to ten minutes
to put in a loose cordon and, as more police officers arrived, 20 to
25 minutes to put in a full cordon. There was sufficient space within
the cordon for people to walk about and there was no crushing.
Nonetheless, as the afternoon progressed conditions became
uncomfortable. The weather was cold and wet. No food or water was
provided and there was no access to toilet facilities or shelter.
No
announcement was made to the crowd when the cordon was first put in
place because of police concern that it would not be strong enough to
resist a concerted effort by the crowd to break through. The first
announcement through the public address system was made at 4 p.m.,
informing the crowd 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.
At
2.25 p.m., five minutes after the full cordon was put in place, the
Chief Superintendent commanding the operation planned to commence a
controlled release from within the cordon up Regent Street North.
However, release had to be delayed when members of the crowd both
within and outside the cordon started to throw missiles and use
violence against the police and when there was an attempt by the
crowd to break through the cordon into Regent Street. At 2.55 p.m. a
dispersal North was again planned but suspended because of violence
by protesters on both sides of the cordon. At around this time more
people started moving towards Oxford Circus to take part in the event
which had been planned to take place there at 4 p.m. By 3.40 p.m. the
police situation report was that officers were sandwiched between
crowds, with pushing and shoving and bottles being thrown. At 4.30
p.m. there was a crowd of between 400 and 500 people outside the
cordon following a samba band, which made dispersal into Oxford
Street difficult. The situation was reviewed at 4.55 p.m. but
collective release was ruled out because of the risk of violence and
disorder. At 5.15 there was serious disorder in Oxford Street caused
by a core of about 25 masked protesters which attracted a crowd of
several hundreds. At 5.20 p.m. the crowd within the cordon were calm
but the police were not willing to risk collective release because of
the presence of other large, disorderly crowds nearby.
At
5.55 p.m. the decision was taken to disperse the crowd within the
cordon. However, the crowd became violent again and at 6.15 the
decision to release was reversed. At 7 p.m. release was commenced,
with small groups and individuals being escorted away from the
containment. However, at 7.20 p.m. the release was put on hold
because of the difficulty in policing the crowds outside the cordon,
some of whom were throwing large bits of masonry and burning missiles
at the police, and because demonstrators released from the cordon
were remaining in the vicinity. At 7.30 the collective dispersal was
resumed, with additional police resources to escort those released
from the cordon. However, the dispersal was soon halted again because
it became apparent that those being released from Oxford Circus were
joining another large crowd, which had previously been violent, to
the North in Great Portland Street. By 8 p.m. Portland Place was
clear and the collective release of the Oxford Circus crowd
recommenced, in groups of ten. By 9.45 the dispersal was almost
complete. Over 100 people were arrested as a result of the disorder
in Oxford Circus and the surrounding area. It was part of the
collective release policy to search some or all of those released,
take a record of their names and addresses and photograph them.
The
police estimated that there were a maximum of 2,000 people within the
cordon at the peak time and 1,000 in the crowd outside it. Analysis
of the documentary and video evidence admitted at trial indicated
that, over the course of the afternoon, some 392 people were released
individually. It was accepted that this figure was unlikely to be
accurate, but Tugendhat J found that the number of individual
releases was likely to be “nearer 400 than 200”. Of
these, most were from the North and South sides of Oxford Circus,
with very few people being released to the East and West. Most of the
recorded releases were before 4 p.m.; 12 were between 4 p.m. and 5
p.m.; 89 between 5 p.m. and 6 p.m.; 59 between 6 p.m. and 7 p.m.; and
12 individual releases after 7 p.m. It was difficult for police
officers to identify members of the crowd for individual release on
the basis that they posed no threat of violence. Some of those
released were identified in police records as being bystanders caught
up in the demonstration. Others were described as being in physical
distress, pregnant women, elderly people or children.
(b) Tugendhat J’s conclusions
The
judge concluded that, in the light of the violence which had occurred
at previous demonstrations, the intelligence available to the police,
the lack of co-operation from the organisers and the conduct of
certain sections of the crowd, the police had reasonable grounds to
believe that there was a real risk of damage to property, serious
physical injury and even death. The main risks were from crushing and
trampling, but there were also risks from missile throwing. Given the
situation at Oxford Circus, if they were to prevent violence and
injury, the police had no alternative at 2 p.m. but to impose an
absolute cordon and this was, therefore, a proportionate response by
the police to the presence of the crowd. The principal purpose of the
containment was to ensure the safety of persons, including those
within the cordon; the preservation of property in Oxford Street; and
the protection of other rights of third parties. The police also
intended to segregate some members of the crowd from others, if
appropriate by asking them questions, or by searching them.
From
2.20 p.m., no-one in the crowd was free to leave without permission.
The measure was a close confinement, with minimal liberty in Oxford
Circus, and its effects were severe, increasingly so as time went by.
However, it was never expected that the containment would last so
long and the possibility of safely releasing the crowd was kept under
review at all times.
It
was not practicable for the police to release the crowd collectively
earlier than they did. There were periods when the dispersal route
was blocked by other crowds attempting to get into Oxford Circus. It
would not have been reasonable or safe to allow these crowds to join
each other without controlling their movement. In addition, there
were long periods during which the police did not have the resources
to provide for safe dispersal, and it was not suggested that the
Commissioner of the Metropolitan Police could or should have made
available more police officers than he did have on the streets that
day. One reason the resources were inadequate was that a substantial
proportion of the crowd was not co operating with the police on
the cordons around them. The judge estimated that about 40% were
actively hostile at any given time, pushing and throwing missiles,
and otherwise showing lack of co-operation. Those not pushing or
throwing missiles were not disassociating themselves from the smaller
minority who were. As a result the cordon had to be manned by enough
officers to resist a concerted push by these people to break out. A
co-operative crowd could have been contained by fewer officers,
leaving others available to control the dispersal. The other reason
why there were insufficient resources is that other crowds outside
the containment were refusing to accept control by or directions from
the police. The police were doing the best that they could in the
most difficult circumstances. The resources they needed to control
the dispersal of the crowd in Oxford Circus were necessarily and
properly deployed elsewhere. That did not mean that the police had to
allow the crowd in Oxford Circus to disperse without control.
According to the judge, that would have been an abnegation of their
duty to prevent a breach of the peace, and of their duty of care and
the positive obligation incumbent upon them to protect the members of
the crowd and third parties, including police officers, from the risk
of serious injury, as well as to protect third parties from risk of
damage to property.
In
the circumstances that existed in Oxford Circus, and in particular
the difficulty for the police to distinguish between peaceful and
violent or potentially violent individuals within the cordon, the
judge was unable to find any individual release policy, other than
that applied, which would have been workable. Once the cordon was in
place, any measure of controlled release was bound to have taken a
considerable time before all the crowd were released. It was
impossible to say how long it would have taken, if there had been no
searches or evidence gathering, but it would have been more than a
matter of twenty minutes. If a release was to be combined with
searches and evidence gathering, it was bound to take as long as this
one took from the time it restarted at 7.30 p.m., that is about one
to two hours at least.
As
regards the false imprisonment claim, Tugendhat J held that the
defence of necessity was available and that the police action was
necessary.
In
connection with Article 5, the judge found that containment within
the cordon amounted to deprivation of liberty within the meaning of
Article 5 § 1. 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, and that this was
sufficient for the requirements of Article 5 § 1(c).
In
addition, Tugendhat J found that, on the unusual facts of the case,
there had been no interference with the rights of freedom of speech
and assembly. None of the witnesses were able to explain what was the
purpose of the procession to Oxford Circus or what it was proposed
should have happened either there, or anywhere else, if the police
cordon had not been imposed. He found that the literature distributed
in advance by the organisers was intended to encourage at least a
substantial minority of those present to engage in some form of
disorderly and criminal activity, probably including public order
offences such as affray, criminal damage and theft. If there had been
no cordon, it would in practice have been impossible in this
environment of disorder for anyone intending to carry out lawful acts
of protest to do so. Moreover, there was no evidence that anyone at
Oxford Circus intended to exercise any rights of speech that they did
not in fact exercise. Tugendhat J therefore concluded that the case
was about public order and the right to liberty, and not about
freedom of speech or freedom of assembly, and he dismissed all the
plaintiffs’ claims.
(c) The Court of Appeal
Tugendhat
J granted Ms Austin and Mr Saxby leave to appeal against his findings
as regards the claims for false imprisonment and under Article 5 of
the Convention. In a judgment delivered on 15 October 2007 ([2007] EWCA Civ 989), the Court of Appeal dismissed the appeal.
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. Sir Anthony Clarke MR, giving the judgment of the
court, held as follows:
“102. ... [T]he first question is
whether the appellants were deprived of their liberty from the
outset. In our opinion they plainly were not. The position at that
time was not markedly different in terms of detention from a number
of different types of confinement or detention to which the judge
referred which would not be regarded as a deprivation of liberty
within article 5(1). A good example is perhaps a football crowd. It
is commonplace for such a crowd to be contained for what may turn out
to be quite long periods, partly for the protection of individuals in
the crowd and partly (in some cases) to avoid crowd violence, perhaps
as between groups of opposing supporters ... Other examples would be
... for example where motorists are unable to leave a motorway,
perhaps for many hours, because of police action following an
accident. In such cases it may be necessary for police to confine
individuals in particular areas for what may be much longer than
originally intended.
103. In our opinion this was plainly such a
case. On the judge’s findings of fact, the police had no
alternative but to impose the cordon which they did. They anticipated
orderly release over two or three hours in order to avoid violence.
The judge identified their various purposes, which included safety
and the prevention of crime by individuals in the crowd many of whom
could not be identified. In these circumstances the original
imposition of the cordon could not, in our judgment, 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). For these reasons we hold that the judge
erred in principle in concluding that the appellants were unlawfully
detained as from 2.20 pm.
104. On that basis, it is for us to consider
afresh the remaining question, namely whether they were unlawfully
detained thereafter. In our judgment the answer to that question is
‘No’. So for example, ... on a number of occasions during
the afternoon the police gave the order to commence controlled
release, only to find that they could not safely carry it through ...
On three occasions the decision to commence controlled dispersal
north had to be reviewed or suspended because of the conduct of
protesters either inside or outside the contained area, with the
result that the final release phase did not begin until 8.02 pm ...
During the whole period there was very considerable violence,
although not it must be stressed by the appellants ... As the judge
concluded ... this was not simply a static crowd of protesters in
Oxford Circus surrounded by police and held in place for 7 hours. It
was a dynamic, chaotic, and confusing situation in which there were
also a large number of other protesters in the immediate vicinity
outside the cordon who were threatening serious disorder and posing a
threat to the officers both on the cordon and within it.
105. In these circumstances it could not
sensibly be held that there came a time in which what was originally
something less than a deprivation of liberty subsequently became a
deprivation of liberty within the meaning of article 5(1) of the
Convention. We therefore hold, contrary to the conclusion of the
judge, that, if all the relevant circumstances are taken into
account, there was not here the kind of arbitrary deprivation of
liberty contemplated by the Convention.”
(d) The House of Lords
Ms
Austin, like Mr Saxby, 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:
“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 measure’s
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 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.”
Lord
Hope then reviewed a number of judgments and decisions of the Court
and Commission, including X. v the Federal Republic of Germany,
no. 8819/79, Commission decision of 19 March 1981, Decisions and
Reports (DR) vol. 24, p. 158; Guenat v Switzerland, no.
24722/94, Commission decision of 10 April 1995, DR vol. 81-B, p. 13;
H.M. v. Switzerland, no. 39187/98, ECHR 2002 II;
Nielsen v. Denmark, 28 November 1988, Series A no. 144;
Soering v. the United Kingdom, 7 July 1989, Series A no.
161; O’Halloran and Francis v. the United Kingdom [GC],
nos. 15809/02 and 25624/02, ECHR 2007 III; N. v. the United
Kingdom [GC], no. 26565/05, 27 May 2008, and concluded:
“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
Neuberger of Abbotsbury agreed that there had been no deprivation of
liberty, and observed as follows:
“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.”
Lord
Carswell agreed with Lord Hope and Lord Scott of Foscote agreed with
Lords Hope and Neuberger, emphasising that “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” whether there has
been a deprivation of liberty.
Lord
Walker of Gestingthorpe agreed with Lord Hope, but added as a
“footnote”:
“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: ... 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.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
The
applicants complained that they were deprived of
their liberty in breach of Article 5 § 1 of the Convention,
which reads as follows:
“1. 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.”
The
Government argued that Article 5 § 1 did not apply, because
there had been no deprivation of liberty. In the alternative, they
contended that any deprivation of liberty had been in conformity with
Article 5 § 1(b) and/or (c).
A. The parties’ arguments
1. The Government
The
Government submitted that the police had not deprived the applicants
of their liberty, within the meaning of Article 5 § 1. They
emphasised that it was one of the most basic principles inherent in
the Convention that a fair balance should be struck between the
interests of the community and the protection of the rights of the
individual. The need to strike such a balance was a theme running
through the Court’s case-law and it should also be taken into
account when determining the existence of a deprivation of liberty.
Unlike Articles 8-11 of the Convention, Article 5 § 1 was not
subject to a general justification provision. It was therefore
important not to adopt too broad a concept of “deprivation of
liberty”.
The
relevant principles for identifying a deprivation of liberty were
first set out by the Court in Engel and Others v. the Netherlands,
8 June 1976, §§ 58-59, Series A no. 22, followed in
Guzzardi v. Italy, 6 November 1980, §§ 92-93, Series
A no. 39 and numerous subsequent cases. This case law made it
clear that the question whether there was a deprivation of liberty
had to be determined with reference to the specific facts. The
duration of the measure was one factor to be taken into account, but
the fact that controls were imposed for a significant period was not
in itself sufficient to trigger a deprivation of liberty, as was
clear from the cases on night curfews: see Raimondo v. Italy,
22 February 1994, Series A no. 281 A and Trijonis v.
Lithuania, no. 2333/02, 15 December 2005. The purpose for which a
measure was imposed was a relevant factor and could weigh against the
Court finding a deprivation of liberty, even where there was physical
confinement in a specific place for a lengthy period: see Engel,
cited above, at § 59, where the Court observed that the context
of military discipline had to be taken into account; see also
Nielsen v. Denmark and H.M. v. Switzerland, both
cited above, where the Court, in holding that Article 5 did not
apply, took into account the humanitarian purpose behind the
confinement. This approach was correct in principle, since the
objective of Article 5 § 1 was to prevent arbitrary and
unjustified detention.
None
of the Court’s case-law to date addressed circumstances such as
those in issue here, where it had been necessary for the police to
take proportionate action to confine persons for a limited time to
prevent serious public disorder involving a substantial risk of death
or serious injury. If Article 5 were to be interpreted as preventing
the imposition of a cordon at Oxford Circus on May Day 2001, the
police in Contracting States would be obliged to prepare alternative
methods of dealing with violent demonstrations, which would not raise
Article 5 issues but which might be far more dangerous for all
concerned, such as the use of tear gas or rubber bullets.
The
House of Lords and Court of Appeal correctly applied principles
derived from the Court’s case-law to find that there was no
deprivation of liberty when the cordon was initially imposed. A
temporary restraint on freedom of movement along a public highway,
even if absolute, did not amount to a deprivation of liberty, as was
clear from the examples involving crowds at football matches or
traffic on motorways referred to by the domestic courts. The question
then was whether the length of time for which the cordon was imposed
made it into a deprivation of liberty. That had to depend on all the
circumstances, in particular, the purpose of the police to protect
the safety of those within and outside the cordon and the necessity
of the measure, since there were no other steps which the police
could have taken to prevent serious public disorder.
In
the alternative, if there had been a deprivation of liberty, it was
justified under Article 5 § 1(b), to secure the fulfilment of
the “obligation prescribed by law” to assist a constable
in dealing with a breach of the peace. In the further alternative,
any deprivation of liberty also fell within the exception of Article
5 § 1(c), in that the confinement of each applicant was
necessary in order to enable the police to prevent the apprehended
breach of the peace.
2. The applicants
In
the applicants’ submission, in order to establish whether there
had been a deprivation of liberty it was necessary objectively to
evaluate the individual’s concrete situation, in particular
whether there had been “confinement to a certain limited place
for a not negligible length of time”, and whether he or she
“validly consented” to this happening (see Storck
v. Germany, no. 61603/00, § 74, ECHR 2005 V).
Where the measure employed did not involve detention in the classic
sense of imprisonment, it should be evaluated by reference to the
nature and extent of the confinement, the manner of its
implementation, its duration and its effect upon the applicant. Thus,
for example, the greater the extent of the confinement and the
greater the degree of coercion by the authorities, the shorter the
duration required before a deprivation of liberty would be found.
The
applicants reasoned that the Government’s Observations were
based on the novel and controversial proposition that containment
required for a benevolent or public interest purpose would not amount
to a deprivation of liberty, at least outside the classic
imprisonment situation. The applicants disagreed and submitted that
if a measure was employed in circumstances that would otherwise
amount to a deprivation of liberty, the intention or purpose with
which it was undertaken was irrelevant to the assessment of whether a
deprivation of liberty had occurred. The purpose for which the
measure was undertaken was relevant only to determine whether an
established deprivation of liberty was justified by reference to the
six purposes specified at 5 § 1(a)-(f), which were, in any case,
to be narrowly construed. It was not possible to interpret the
concept of deprivation of liberty differently in relation to
restrictions imposed on grounds of public order, as opposed to
measures imposed for any other benevolent or public interest purpose.
The
applicants further contended that the Government’s attempt to
support their argument by reference to the search for a fair balance
between the demands of the public interest and the need to protect
the rights of individuals was misconceived. This fair balance had
already been struck by the very formulation of the rights protected
by the Convention. The Court was not free to weigh competing public
interest considerations to narrow down the scope of protection. Any
assessment of fair balance undertaken by the Court was informed by
the structure of the particular Article and only occurred within the
spaces left by that structure, for example in delimiting the scope of
positive obligations arising from certain Articles. If the
Government’s central contention were correct, States would be
able to circumvent the protections of Article 5, detaining people for
a wide range of reasons beyond the scope of Article 5 §
1(a)-(f), provided that necessity was shown and without those
individuals enjoying the safeguards, procedural and substantive,
afforded by Article 5.
The
applicants did not contend that there was a deprivation of liberty
from the moment the cordon was imposed. However, in view of the
nature of the confinement, its coercive enforcement, long duration
and effect upon them, the containment within the police cordon was
clearly a deprivation of their liberty. The fact that the domestic
Courts found it was a necessary public order measure was irrelevant
to this issue.
The
deprivation of liberty was not justified under any of the
subparagraphs of Article 5 § 1. In particular, as regards
Article 5 § 1(b), the applicants were not detained to “secure
the fulfilment of any obligation prescribed by law”, since this
justification could only arise where a specific and concrete
obligation upon the individual had arisen and the deprivation of
liberty was incidental to its fulfilment. The “obligation”
could not be a requirement to submit to the deprivation of liberty
itself. Furthermore, detention pursuant to Article 5 § 1(c),
“when it is reasonably considered necessary to prevent his
committing an offence”, required both that the deprivation
occurred to prevent the individual in question from committing a
particular offence and that it was the intention of the authorities
at the time of the deprivation to bring the individual before the
competent legal authority in the course of criminal proceedings.
Neither of these requirements could be shown in their case.
B. The Court’s assessment
1. Admissibility
The
Court considers that the question whether the applicants were
deprived of their liberty, and therefore whether Article 5 § 1
applies, is closely linked to the merits of the applicants’
complaints. It therefore joins this preliminary issue to the merits.
It
finds that the case is not inadmissible on any other grounds and it
therefore declares it admissible.
2. The merits
(a) General principles
It
is true, as the parties point out, that this is the first time that
the Court has considered the application of Article 5 § 1 of the
Convention in respect of the “kettling” or containment of
a group of people carried out by the police on public order grounds.
In interpreting Article 5 § 1 in these circumstances, and in
particular in determining whether there has been a deprivation of
liberty, the Court draws guidance from the following general
principles.
First,
as the Court has underlined on many occasions, the Convention is a
living instrument which must be interpreted in the light of
present-day conditions and of the ideas prevailing in democratic
States today (see, among other authorities, Tyrer v. the United
Kingdom, 25 April 1978, § 31, Series A no. 26; Kress v.
France [GC], no. 39594/98, § 70, ECHR 2001-VI; Christine
Goodwin v. the United Kingdom [GC], no. 28957/95, § 75,
ECHR 2002 VI; and, most recently, Bayatyan v. Armenia
[GC], no. 23459/03, § 102, ECHR 2011). This does not,
however, mean that to respond to present-day needs, conditions, views
or standards the Court can create a new right apart from those
recognised by the Convention (see Johnston and Others v. Ireland,
18 December 1986, §§ 51-54, Series A no. 112) or that
it can whittle down an existing right or create a new “exception”
or “justification” which is not expressly recognised in
the Convention (see, for example, Engel and Others, cited
above, § 57 and Ciulla v. Italy, 22 February 1989, §
41, Series A no. 148).
Secondly,
the Convention must be read as a whole, and interpreted in such a way
as to promote internal consistency and harmony between its various
provisions (Stec and Others v. the United Kingdom (dec.) [GC],
nos. 65731/01 and 65900/01, § 48, ECHR 2005 X).
Given
the context in which this containment measure took place in the
instant case, the Court considers it appropriate to recall, for the
sake of completeness, that Article 2 of Protocol No. 4 to the
Convention guarantees the right to liberty of movement. It is true
that the applicants did not invoke this provision, since the United
Kingdom has not ratified Protocol No. 4 and is thus not bound by it.
In the Court’s view, however, taking into account the
importance and purport of the distinct provisions of Article 5 and of
Article 2 of Protocol No. 4, it is helpful to make the following
reflections. First, Article 5 should not, in principle, be
interpreted in such a way as to incorporate the requirements of
Protocol No. 4 in respect of States which have not ratified it,
including the United Kingdom. At the same time, Article 2 §
3 of the said Protocol permits restrictions to be placed on the right
to liberty of movement where necessary, inter alia, for the
maintenance of public order, the prevention of crime or the
protection of the rights and freedoms of others. In connection
with Article 11 of the Convention, the Court has held that
interferences with the right of freedom of assembly are in principle
justified for the prevention of disorder or crime and for the
protection of the rights and freedoms of others where demonstrators
engage in acts of violence (see Giuliani and Gaggio v. Italy [GC],
no. 23458/02, § 251, ECHR 2011). It has also held that, in
certain well-defined circumstances, Articles 2 and 3 may imply
positive obligations on the authorities to take preventive
operational measures to protect individuals at risk of serious harm
from the criminal acts of other individuals (Giuliani and Gaggio,
cited above, § 244; P.F. and E.F. v. the United
Kingdom, (dec.), no. 28326/09, § 36, 23 November 2010). When
considering whether the domestic authorities have complied with such
positive obligations, the Court has held that account must be taken
of the difficulties involved in policing modern societies, the
unpredictability of human conduct and the operational choices which
must be made in terms of priorities and resources (Giuliani and
Gaggio, cited above, § 245; P.F. and E.F. v. the
United Kingdom, cited above, § 40).
As
the Court has previously stated, the police must be afforded a degree
of discretion in taking operational decisions. Such decisions are
almost always complicated and the police, who have access to
information and intelligence not available to the general public,
will usually be in the best position to make them (see P.F. and
E.F. v. the United Kingdom, cited above, § 41). Moreover,
even by 2001, advances in communications technology had made it
possible to mobilise protesters rapidly and covertly on a hitherto
unknown scale. Police forces in the Contracting States face new
challenges, perhaps unforeseen when the Convention was drafted, and
have developed new policing techniques to deal with them, including
containment or “kettling”. Article 5 cannot be
interpreted in such a way as to make it impracticable for the police
to fulfil their duties of maintaining order and protecting the
public, provided that they comply with the underlying principle of
Article 5, which is to protect the individual from arbitrariness (see
Saadi v. the United Kingdom [GC], no. 13229/03, §§ 67 74,
ECHR 2008).
As
mentioned above, Article 5 § 1 is not concerned with mere
restrictions on liberty of movement, which are governed by Article 2
of Protocol No. 4. In order to determine whether someone has been
“deprived of his liberty” within the meaning of Article 5
§ 1, the starting point must be his concrete situation and
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. The difference between deprivation of and restriction upon
liberty is one of degree or intensity, and not of nature or substance
(see Engel and Others, § 59; Guzzardi, §§
92-93; Storck, § 71, all cited above; and also, more
recently, Medvedyev and Others v. France [GC],
no. 3394/03, §§ 73, ECHR 2010).
As Lord Walker pointed out (see paragraph 37 above),
the purpose behind the measure in question is not mentioned in the
above judgments as a factor to be taken into account when deciding
whether there has been a deprivation of liberty. Indeed, it is clear
from the Court’s case-law that an underlying public interest
motive, for example to protect the community against a perceived
threat emanating from an individual, has no bearing on the question
whether that person has been deprived of his liberty, although it
might be relevant to the subsequent inquiry whether the deprivation
of liberty was justified under one of the subparagraphs of Article 5
§ 1 (see, among many examples, A. and Others v. the United
Kingdom [GC], no. 3455/05, § 166, 19 February 2009;
Enhorn v. Sweden, no. 56529/00, § 33, ECHR 2005 I;
M. v. Germany, no. 19359/04, 17 December 2009). The same is
true where the object is to protect, treat or care in some way for
the person taken into confinement, unless that person has validly
consented to what would otherwise be a deprivation of liberty (see
Storck, cited above, §§ 74-78, and the cases cited
therein and, most recently, Stanev v. Bulgaria [GC], no.
36760/06, § 117, 17 January 2012; see
also, as regards validity of consent, Amuur v. France, 25 June
1996, § 48, Reports of Judgments and Decisions 1996 III).
However,
the Court is of the view that the requirement to take account of the
“type” and “manner of implementation” of the
measure in question (see Engel, § 59 and Guzzardi, §
92, both cited above) enables it to have regard to the specific
context and circumstances surrounding types of restriction other than
the paradigm of confinement in a cell (see, for example, Engel and
Others, cited above, § 59; Amuur, cited above, §
43). Indeed, the context in which action is taken is an important
factor to be taken into account, since situations commonly occur in
modern society where the public may be called on to endure
restrictions on freedom of movement or liberty in the interests of
the common good. As the judges in the Court of Appeal and House of
Lords observed, members of the public generally accept that temporary
restrictions may be placed on their freedom of movement in certain
contexts, such as travel by public transport or on the motorway, or
attendance at a football match (see paragraphs 35 and 37 above). The
Court does not consider that such commonly occurring restrictions on
movement, so long as they are rendered unavoidable as a result of
circumstances beyond the control of the authorities and are necessary
to avert a real risk of serious injury or damage, and are kept to the
minimum required for that purpose, can properly be described as
“deprivations of liberty” within the meaning of Article 5
§ 1.
Article
5 enshrines a fundamental human right, namely the protection of the
individual against arbitrary interference by the State with his or
her right to liberty. Subparagraphs (a)-(f) of Article 5 § 1
contain an exhaustive list of permissible grounds on which persons
may be deprived of their liberty and no deprivation of liberty will
be compatible with Article 5 § 1 unless it falls within one
of those grounds (see, amongst many other authorities, Al-Jedda v.
the United Kingdom [GC], no. 27021/08, §
99, 7 July 2011). It cannot be excluded that the use of
containment and crowd control techniques could, in particular
circumstances, give rise to an unjustified deprivation of liberty in
breach of Article 5 § 1. In each case, Article 5 § 1 must
be interpreted in a manner which takes into account the specific
context in which the techniques are deployed, as well as the
responsibilities of the police to fulfil their duties of maintaining
order and protecting the public, as they are required to do under
both national and Convention law.
(b) Application of these principles to the
facts of the case
The
question whether there has been a deprivation of liberty is,
therefore, based on the particular facts of the case. In this
connection, the Court recalls that within the scheme of the
Convention, it is intended to be subsidiary to the national systems
safeguarding human rights (see A. and Others, cited
above, § 154). Subsidiarity is at the very basis of the
Convention, stemming as it does from a joint reading of Articles 1
and 19. The Court must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case. As a general
rule, where domestic proceedings have taken place, it is not the
Court’s task to substitute its own assessment of the facts for
that of the domestic courts and it is for the latter to establish the
facts on the basis of the evidence before them. Though the Court is
not bound by the findings of domestic courts and remains free to make
its own appreciation in the light of all the material before it, in
normal circumstances it requires cogent elements to lead it to depart
from the findings of fact reached by the domestic courts (Giuliani
and Gaggio, cited above, § 180). Nonetheless, since pursuant
to Articles 19 and 32 of the Convention it is the Court’s role
definitively to interpret and apply the Convention, while it must
have reference to the domestic court’s findings of fact, it is
not constrained by their legal conclusions as to whether or not there
has been a deprivation of liberty within the meaning of Article 5 §
1 (see, for example, Storck, cited above, § 72).
Tugendhat
J’s judgment at first instance followed a three week trial,
during which he considered a substantial body of evidence about the
events at Oxford Circus on May Day 2001, including oral testimony and
documentary, video and photographic evidence (see paragraph 16
above). He found, inter alia, that the information available
in advance to the police indicated that the demonstration would
attract a “hard core” of 500 to 1,000 violent
demonstrators and that there was a real risk of serious injury, even
death, and damage to property if the crowds were not effectively
controlled. The police were expecting a crowd to form at Oxford
Circus at around 4 p.m. and they were taken by surprise when
over 1,500 people gathered there two hours earlier. In the light of
the intelligence they had received and the behaviour of crowds at
earlier demonstrations on similar themes, the police decided that, if
they were to prevent violence and the risk of injury to persons and
damage to property, an absolute cordon had to be imposed at 2 p.m.
From 2.20 p.m., when a full cordon was in place, no-one in the crowd
was free to leave the area without permission. There was space within
the cordon for people to walk about and there was no crushing, but
conditions were uncomfortable, with no shelter, food, water or toilet
facilities. Throughout the afternoon and evening attempts were made
by the police to commence collective release, but the violent and
uncooperative behaviour of a significant minority both within the
cordon and in the surrounding area outside led the police repeatedly
to suspend dispersal. In consequence, full dispersal could not be
completed until 9.30 p.m. However, the police permitted
approximately 400 individuals who could clearly be identified as not
being involved in the demonstration or who were seriously affected by
being confined, to leave (see paragraphs 17-25 above). These findings
were not disputed by the parties to the present proceedings and the
Court sees no ground to depart from them. The first, second and third
applicants were confined within the police cordon for approximately
seven hours and the fourth applicant for five and a half hours.
The
Court must analyse the applicants’ concrete situation with
reference to the criteria set out in Engel and Others and the
subsequent case-law (see paragraph 57 above). Although there were
differences between the applicants, in that the first applicant was
present in Oxford Circus as a demonstrator whereas the other
applicants were passers-by, the Court does not consider that this
difference is relevant to the question whether there was a
deprivation of liberty.
In
accordance with the Engel criteria, the Court considers that
the coercive nature of the containment within the cordon; its
duration; and its effect on the applicants, in terms of physical
discomfort and inability to leave Oxford Circus, point towards a
deprivation of liberty.
However,
the Court must also take into account the “type” and
“manner of implementation” of the measure in question. As
indicated above, the context in which the measure was imposed is
significant.
It
is important to note, therefore, that the measure was imposed to
isolate and contain a large crowd, in volatile and dangerous
conditions. As the Government pointed out (see paragraph 42 above),
the police decided to make use of a measure of containment to control
the crowd, rather than having resort to more robust methods, which
might have given rise to a greater risk of injury to people within
the crowd. The trial judge concluded that, given the situation in
Oxford Circus, the police had no alternative but to impose an
absolute cordon if they were to avert a real risk of serious injury
or damage (see paragraph 26 above). The Court finds no reason to
depart from the judge’s conclusion that in the circumstances
the imposition of an absolute cordon was the least intrusive and most
effective means to be applied. Indeed, the applicants did not contend
that, when the cordon was first imposed, those within it were
immediately deprived of their liberty (see paragraph 48 above).
Moreover,
again on the basis of the facts found by the trial judge, the Court
is unable to identify a moment when the measure changed from what
was, at most, a restriction on freedom of movement, to a deprivation
of liberty. It is striking that, some five minutes after the absolute
cordon was imposed, the police were planning to commence a controlled
release towards the north. Thirty minutes later, a second attempt by
the police to begin release was begun but suspended, because of the
violent behaviour of those within and outside the cordon. Between
about 3 p.m. and 6 p.m. the police kept the situation under review,
but the arrival of a new group of protesters and the dangerous
conditions within the crowds led them to consider that it would not
be safe to attempt to release those within the cordon. Controlled
release was recommenced at 5.55 p.m., but stopped at 6.15 p.m.;
resumed at 7 p.m. and suspended at 7.20 p.m.; begun again at 7.30
p.m., again abandoned; then carried out continuously, by groups of
ten, until the entire crowd had been released at 9.45 p.m. (see
paragraph 24 above). Thus, the trial judge found the same conditions
which required the police to contain the crowd at 2 p.m. persisted
until about 8 p.m., when the collective release was finally able to
proceed without interruption (see paragraph 24 above). In these
circumstances, where the police kept the situation constantly under
close review, but where substantially the same dangerous conditions
which necessitated the imposition of the cordon at 2 p.m.
continued to exist throughout the afternoon and early evening, the
Court does not consider that those within the cordon can be said to
have been deprived of their liberty within the meaning of Article 5 §
1. Since there was no deprivation of liberty, it is unnecessary for
the Court to examine whether the measure in question was justified in
accordance with subparagraphs (b) or (c) of Article 5 § 1.
The
Court emphasises that the above conclusion, that there was no
deprivation of liberty, is based on the specific and exceptional
facts of this case. Furthermore, this application did not include any
complaint under Articles 10 or 11 of the Convention and the Court
notes the first instance judge’s finding that there had been no
interference with the Article 10 and 11 rights of freedom of
expression and assembly of those contained within the cordon (see
paragraph 32 above). It must be underlined that measures of crowd
control should not be used by the national authorities directly or
indirectly to stifle or discourage protest, given the fundamental
importance of freedom of expression and assembly in all democratic
societies. Had it not remained necessary for the police to impose and
maintain the cordon in order to prevent serious injury or damage, the
“type” of the measure would have been different, and its
coercive and restrictive nature might have been sufficient to bring
it within Article 5.
In
conclusion, since Article 5 is inapplicable, there has been no
violation of that provision in this case.
FOR THESE REASONS, THE COURT
Declares the applications
admissible unanimously;
Holds by fourteen votes to three
that there has been no violation of Article 5 of the
Convention.
Done in English and French, and notified at a public hearing in the
Human Rights Building, Strasbourg, on 15 March 2012, pursuant to Rule
77 §§ 2 and 3 of the Rules of Court.
Michael O’Boyle Françoise
Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following joint dissenting
opinion of Judges Tulkens, Spielmann and Garlicki
is annexed to this judgment.
F.T.
M.O.B.
JOINT DISSENTING OPINION OF JUDGES TULKENS, SPIELMANN
AND GARLICKI
(Translation)
We
do not share the view of the majority that there was no deprivation
of liberty in the present case, a finding which led them to conclude
that, since Article 5 of the Convention was inapplicable, there had
been no violation of that provision.
The
judgment explains its position by “the specific and exceptional
facts of this case”, while also pointing out that “[h]ad
it not remained necessary for the police to impose and maintain the
cordon in order to prevent serious injury or damage, the ‘type’
of the measure would have been different, and its coercive and
restrictive nature might have been sufficient to bring it within
Article 5” (see paragraph 68).
In
terms of the principles governing the application of Article 5 of the
Convention, a provision which features in all the universal and
regional human-rights instruments and forms part of the European
public order, the majority’s position can be interpreted as
implying that if it is necessary to impose a coercive and restrictive
measure for a legitimate public-interest purpose, the measure does
not amount to a deprivation of liberty. This is a new proposition
which is eminently questionable and objectionable for two reasons.
Firstly,
the Court has always held that the aim or intention of a measure
cannot be taken into account in assessing whether there has been a
deprivation of liberty. These aspects are relevant only in assessing
whether the deprivation of liberty was justified for the purposes
listed in sub-paragraphs (a) to (f) of Article 5 § 1. In other
words, the wording of Article 5 in itself strikes the fair
balance inherent in the Convention between the public interest and
the individual right to liberty by expressly limiting the purposes
which a deprivation of liberty may legitimately pursue.
Next,
regard being had to the structure and wording of Article 5 § 1
of the Convention, there can be no distinction in principle between
measures taken on public-order grounds and measures imposed for any
other legitimate/public-interest purpose. In other words, there is no
reason to treat deprivations of liberty resulting from public-order
considerations any differently from other kinds of deprivation of
liberty for which this provision is invoked. Otherwise, States would
be able to “circumvent” the guarantees laid down in
Article 5 and detain people for a whole range of reasons going beyond
the provisions of Article 5 § 1 (a) to (f), as long as they
could show that the measure was necessary.
This
was the approach underlying the Court’s analysis in the
A. and Others v. the United Kingdom judgment
of 19 February 2009 ([GC], no. 3455/05, ECHR 2009), concerning a
situation that was surely even more serious, namely a potential
threat to national security: “The Court does not accept the
Government’s argument that Article 5 § 1 permits a balance
to be struck between the individual’s right to liberty and the
State’s interest in protecting its population from terrorist
threat. This argument is inconsistent not only with the Court’s
jurisprudence under sub-paragraph (f) but also with the principle
that paragraphs (a) to (f) amount to an exhaustive list of exceptions
and that only a narrow interpretation of these exceptions is
compatible with the aims of Article 5. If detention does not fit
within the confines of the paragraphs as interpreted by the Court, it
cannot be made to fit by an appeal to the need to balance the
interests of the State against those of the detainee” (§
171).
In
this connection, the suggestion by the majority which unfortunately
features in the part of the present judgment setting out general
principles is problematic in our view: “It cannot be excluded
that the use of containment and crowd control techniques could, in
particular circumstances, give rise to an unjustified deprivation of
liberty in breach of Article 5 § 1. In each case, Article 5 §
1 must be interpreted in a manner which takes into account the
specific context in which the techniques are deployed, as well as the
responsibilities of the police to fulfil their duties of maintaining
order and protecting the public, as they are required to do under
both national and Convention law” (see paragraph 60 of the
judgment). The wording of this statement appears dangerous to us in
that it leaves the way open for carte blanche and sends out a
bad message to police authorities.
The
majority point out that “in certain well-defined circumstances,
Articles 2 and 3 may imply positive obligations on the authorities to
take preventive operational measures to protect individuals at risk
of serious harm” (see paragraph 55 of the judgment). That may
be so, but it has not been established in the present case that there
was a clear and present danger to life or limb. In any event, the
problem arising is not in fact a new one. The interaction between the
protection afforded by Article 5 § 1 of the Convention and the
positive obligations under Articles 2 and 3 has been examined on
several occasions by the Court, which has consistently reiterated
that positive obligations of this kind should be fully compatible
with the guarantees set forth in Article 5. Only recently, in the
Jendrowiak v. Germany judgment (no. 30060/04,
14 April 2011), the Court observed that “the State
authorities could not, in the present case, rely on their positive
obligations under the Convention in order to justify the applicant’s
deprivation of liberty which, as has been shown above ..., did not
fall within any of the exhaustively listed permissible grounds for a
deprivation of liberty under sub-paragraphs (a) to (f) of Article 5 §
1. That provision can thus be said to contain all grounds on which a
person may be deprived of his liberty in the public interest,
including the interest in protecting the public from crime” (§
38).
In
the present case, the paradox lies in the fact that, as rightly noted
by Lord Hope and Lord Neuberger, if there had been a deprivation of
liberty, it would not have been possible for the police to justify it
under the exceptions provided for in Article 5 § 1,
sub-paragraphs (b) and (c).
We
are well aware that maintaining order is a difficult task, although
in the present case it was not disputed that the 6,000 police
officers deployed were the most experienced in England. As the
domestic courts’ analysis indicates, it appears that the police
prioritised effectiveness in their operation and opted for the most
practical means of dealing with the situation by keeping everyone
inside the cordon. This measure was thus applied indiscriminately and
was also imposed against people taking no part in the demonstration.
In this regard, the police could have been expected to apply less
intrusive means. As it was, it seems that all people who happened to
be at Oxford Circus at around 2 p.m. were treated like objects and
were forced to remain there as long as the police had not solved
other problems around the city.
The
majority note that the applicants’ circumstances differed in
that the first applicant went to Oxford Circus to take part in the
demonstration whereas the other three applicants were passers-by.
They consider, however, that this difference is not relevant
to the question whether there was a deprivation of liberty (see
paragraph 63 of the judgment). With all due respect, we do not agree.
Admittedly, one can accept that active participants in a
demonstration that is not entirely peaceful should be aware that
their freedom of movement may be restricted because of the need for
police measures, although that was not the case here. Indeed, the
Court of Appeal overturned Mr Justice Tugendhat’s finding that
the police had had reasonable grounds to believe that the first
applicant was about to commit a breach of the peace; on the contrary,
it held that in containing her, the police had been exercising an
exceptional common-law power whereby an innocent party could be
detained in order to prevent a breach of the peace by others. Be that
as it may, the situation was completely different regarding the other
three applicants, who were at the scene by chance and had no
intention of taking part in the demonstration. They could reasonably
have expected that, by following police instructions, they would not
be subjected to measures aimed at controlling a crowd of hostile
demonstrators.
The
Court considers itself unable to identify a moment when the measure
of a restriction on freedom of movement changed into to a deprivation
of liberty (see paragraph 67 of the judgment). It is unclear what
this observation means. Does it mean that there was no deprivation of
liberty before 9.30 p.m. or that the situation became a deprivation
of liberty between 2 and 9.30 p.m. but the precise moment cannot be
pinpointed? In the latter event, the majority should not be able to
conclude so categorically that those within the cordon cannot be said
to have been deprived of their liberty within the meaning of Article
5 § 1 of the Convention. In a situation of uncertainty, the
presumption is normally in favour of respect for individual rights.
Lastly,
the Grand Chamber makes no reference whatsoever to the Gillan and
Quinton v. the United Kingdom judgment of 12 January 2010 (no.
4158/05, ECHR 2010). Admittedly, the main focus of that case was
Article 8 of the Convention but Article 5 was also involved,
precisely in the context of a demonstration. The interpretation of
Article 5 in Gillan and Quinton was in fact much broader than
in the present case since the Court found that a coercive restriction
on freedom of movement amounted to deprivation of liberty within the
meaning of Article 5 § 1: “The Court observes that
although the length of time during which each applicant was stopped
and searched did not in either case exceed 30 minutes, during
this period the applicants were entirely deprived of any
freedom of movement. They were obliged to remain where they were and
submit to the search and if they had refused they would have been
liable to arrest, detention at a police station and criminal charges.
This element of coercion is indicative of a deprivation of liberty
within the meaning of Article 5 § 1 (see, for example, Foka
v. Turkey, no. 28940/95, §§ 74-79, 24 June 2008)”
(§ 57, emphasis added). Yet the degree of coercion in the
present case was much higher than in Gillan and Quinton.
In
the present case, the applicants were confined within a relatively
small area, together with some 3,000 other people, and their freedom
of movement was greatly reduced; they were only able to stand up or
sit on the ground and had no access to toilet facilities, food or
water. The cordon was maintained through the presence of hundreds of
riot police officers and the applicants were entirely dependent on
the police officers’ decisions as to when they could leave.
Furthermore, the police could use force to keep the cordon in place,
and refusal to comply with their instructions and restrictions was
punishable by a prison sentence and could lead to arrest. All the
applicants were contained in those conditions for six to seven hours.
In
conclusion, we consider that there was a deprivation of liberty
within the meaning of Article 5 of the Convention and that there has
been a violation of that Article in the present case.