COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Tugendhat
HQO2X01338 and 1337
Strand, London, WC2A 2LL
B e f o r e :
SIR IGOR JUDGE P
LORD JUSTICE LLOYD
| LOUIS AUSTIN
|- and -
|THE COMMISSIONER OF POLICE OF THE METROPOLIS
David Pannick QC, John Beggs, George Thomas and Amy Street (instructed by Edward Solomons,
Director of Legal Services, Metropolitan Police Service) for the Respondent
Hearing dates: 27, 28 and 29 March 2007
Crown Copyright ©
Sir Anthony Clarke, MR:
This is the judgment of the court to which all its members have contributed.
|II The judge's brief summary of events||5-8|
|III The claims||9-11|
|IV Common law – false imprisonment||12|
|V Breach of the peace||13-50|
|VI Key findings of fact relied on by the respondent||51|
|VII The appellants' summary||52-55|
|VIII Did the appellants appear to be about to commit a breach of the peace?||56-62|
|IX If the appellants did not appear to be about to commit a breach of the peace,
was their containment lawful?
|X Conclusion on false imprisonment||73|
|XI Public Order Act 1986||74-84|
|XII Article 5 of the Convention||85-86|
|XIII Deprivation of liberty under article 5(1)||87-107|
|XIV Article 5(1)(b)||108-110|
|XV Article 5(1)(c)||111-117|
II The judge's brief summary of events
IV Common law – false imprisonment
V Breach of the peace
"Every constable, and also every citizen, enjoys the power and is subject to a duty to seek to prevent, by arrest or other action short of arrest, any breach of the peace occurring in his presence, or any breach of the peace which (having occurred) is likely to be renewed, or any breach of the peace which is about to occur. This appeal is only concerned with the third of these situations."
"that every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although, except in the case of a citizen who is a constable, it is a duty of imperfect obligation."
"This brings me to the other question which, had your Lordships taken a different view of whether the police at Lechlade could reasonably have regarded a breach of the peace as already then imminent, would have needed to be addressed: the question as to the circumstances in which the police may take preventive action against persons other than those committing or reasonably apprehended of being about to commit a breach of the peace. Because it does not arise directly I shall touch on it comparatively briefly."
At  Lord Mance posed the question whether and to what extent the police may take preventive action against anyone other than persons committing or reasonably apprehended as being about to commit a breach of the peace.
"The question then seems to be reduced to this: assuming the plaintiff and others assembled with him to be doing nothing unlawful, but yet that there were reasonable grounds for the defendant believing, as he did, that there would be a breach of the peace if they continued so assembled, and that there was no other way in which the breach of the peace could be avoided but by stopping and dispersing the plaintiff's meeting - was the defendant justified in taking the necessary steps to stop and disperse it? In my opinion he was so justified, under the peculiar circumstances stated in the defence, and which for the present must be taken as admitted to be there truly stated. Under such circumstances the defendant was not to defer action until a breach of the peace had actually been committed. His paramount duty was to preserve the peace unbroken, and that, by whatever means were available for the purpose. Furthermore, the duty of a justice of the peace being to preserve the peace unbroken he is, of course, entitled and in part bound, to intervene the moment he has reasonable apprehensions of a breach of the peace being imminent; and therefore, he must in such cases necessarily act on his own reasonable and bona fide belief, as to what is likely to occur. Accordingly in the present case, even assuming that the danger to the public peace arose altogether from the threatened attack of another body on the plaintiff and his friends, still if the defendant believed and had just grounds for believing that the peace could only be preserved by withdrawing the plaintiff and his friends from the attack with which they were threatened, it was, I think, the duty of the defendant to take that course."
He added, at page 112:
"I assume here that the plaintiff's meeting was not unlawful. But the question still remains - was not the defendant justified in separating and dispersing it if he had reasonable ground for his belief that by no other possible means could he perform his duty of preserving the public peace. For the reasons already given, I think he was so justified, and therefore that the defence in question is good...."
"… where it is necessary in order to prevent a breach of the peace, at common law police officers can take action . . . which affects people who are not themselves going to be actively involved in the breach."
"What does need to be stressed, however, is that, as Dicey, An Introduction to the Study of the Law of the Constitution (10th ed by E C S Wade, 1959), pp 278-279, emphasised, using the familiar example of the Salvationists and the Skeleton Army:
"the only justification for preventing the Salvationists from exercising their legal rights is the necessity of the case. If the peace can be preserved, not by breaking up an otherwise lawful meeting, but by arresting the wrongdoers - in this case the Skeleton Army - the magistrates or constables are bound, it is submitted, to arrest the wrongdoers and to protect the Salvationists in the exercise of their lawful rights".
The inference from that passage is that, if the peace cannot be preserved by arresting the wrongdoers (or presumably those imminently about to be wrongdoers), it is or may be the duty of a constable to break up a lawful meeting.
"82. Here, of course, the claimant and those like her were not going to take any part in any breach of the peace. Nor was their conduct likely to lead to one. But, as O'Kelly v Harvey shows, where it is necessary in order to prevent a breach of the peace, at common law police officers can take action (in that case dispersing a meeting) which affects people who are not themselves going to be actively involved in the breach. ….
83. On the same principle, where they need to do so in order, say, to reach the scene of an imminent breach of the peace, police officers must be able to clear a path through a crowd of innocent bystanders. Indeed, where necessary, a police officer is entitled to go further and call on any able-bodied bystanders for their active assistance in suppressing a breach of the peace. If without any lawful excuse, they refuse to give it, they are guilty of an offence. See Archbold, Criminal Pleading Evidence and Practice 2006, para 19-277. The law proceeds on the basis that "it is no unimportant matter that the Queen's subjects should assist the officers of the law, when duly required to do so, in preserving the public peace": R v Brown (1841) C & Mar 314, 318 per Alderson B. In the eyes of the law therefore innocent bystanders caught up in a breach of the peace are to be regarded as potential allies of the police officers who are trying to suppress the violence."
"84. In the light of these authorities I would reject Mr Emmerson QC's submission that there has to be a causal nexus between the persons affected by any measure taken by the police and the potential breach of the peace. In some circumstances a requirement of that kind would make it impossible for police officers to discharge their primary duty to preserve the peace. In a case like the present, therefore, provided that there was no other way of preventing an imminent breach of the peace, under the common law a police officer could stop a coachload of protesters from proceeding further, even although those on board included entirely peaceful protesters. The proviso is, however, vital."
i) Only, perhaps, in "extreme and exceptional" circumstances can a police officer require an innocent third party to desist from lawful conduct and, if he refuses to desist, arrest him in the face of a breach or imminent breach of the peace by others. In other circumstances he cannot be required so to desist: .
ii) It is the primary duty of the police to ensure that innocent parties are able lawfully to exercise their rights. Their first duty "is to protect the rights of the innocent rather than to compel the innocent to cease exercising them": . That innocent members of the public are lawfully exercising or seeking lawfully to exercise such rights should make it "the more, not the less, important that the police should take all possible steps to advance rather than thwart their rights": .
iii) After considering such assistance as is available in the Strasbourg authorities, at  Lord Brown answered the question he posed for himself, namely whether the approach in O'Kelly would be lawful today, as follows:"Ultimately, therefore, I am persuaded that the approach adopted in O'Kelly v Harvey remains valid today but subject always to two provisos: first, that it is not used as an excuse for the police failing to prepare properly for likely confrontations, and, secondly, that there is absolutely no dilution of Law C's stipulation that the constable has "just grounds for believing that the peace could only be preserved by withdrawing the plaintiff and his friends from the attack with which they were threatened [and] that by no other possible means could he perform his duty of preserving the public peace."
iv) The common law power and duty to require the assistance of innocent third parties to ensure that an imminent breach of the peace is avoided can be taken no further than it was in O'Kelly and in Moss v McLachlan  IRLR 76, DC. O'Kelly applies only when absolutely "no other possible means" are available to preserve the peace: . Moss v McLachlan is not relevant to the present question but to the test of imminence.
"… Some authorities suggest a principle whereby, if it is the only way to prevent a third party (A) causing a breach of the peace, a police officer (or justice of the peace) may request another person (B) to desist from entirely lawful and innocent conduct, and, if B refuses to desist, may physically restrain B or charge B with wilfully obstructing the police officer (or justice of the peace) in the execution of her or his duty. Obstruction may consist in persisting in conduct of a positive nature which is, taken by itself, entirely lawful: cf eg Dibble v Ingleton  1 QB 480. Perhaps the requisite duty may be found in the general duty of the police and justices to prevent a breach of the peace, and, in the consideration that, if the only way that a police officer has of avoiding a breach of the peace by A is to enlist the assistance of B by asking B to desist from otherwise entirely lawful and innocent conduct, then B as a citizen comes under a duty to afford that assistance when sought. There is practical attraction in such a principle."
i) where a breach of the peace is taking place, or is reasonably thought to be imminent, before the police can take any steps which interfere with or curtail in any way the lawful exercise of rights by innocent third parties they must ensure that they have taken all other possible steps to ensure that the breach, or imminent breach, is obviated and that the rights of innocent third parties are protected;
ii) the taking of all other possible steps includes (where practicable), but is not limited to, ensuring that proper and advance preparations have been made to deal with such a breach, since failure to take such steps will render interference with the rights of innocent third parties unjustified or unjustifiable; but
iii) where (and only where) there is a reasonable belief that there are no other means whatsoever whereby a breach or imminent breach of the peace can be obviated, the lawful exercise by third parties of their rights may be curtailed by the police;
iv) this is a test of necessity which it is to be expected can only be justified in truly extreme and exceptional circumstances; and
v) the action taken must be both reasonably necessary and proportionate.
"A prior authorisation procedure for public meetings is in keeping with the requirements of article 11, if only so that the authorities may be in a position to ensure the peaceful nature of the meetings: Ziliberberg v Moldova, admissibility decision, European Court, Fourth Section, 4 May 2004, unreported. By contrast, a peaceful protester does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of a demonstration: Ziliberberg v Moldova and Ezelin v France (1991) 14 EHRR 362, 375, para 34 of the Commission's decision.
"I can find little in the Strasbourg jurisprudence—which, as I have explained in para 121 above, sanctions the concept of breach of the peace on the express basis that its scope has been clarified by recent decisions—to support it. On the other hand, both article 10 and article 11 provide in terms in sub-clause 2 for interference with the protective rights if this is "necessary" "for the prevention of disorder or crime".
Thus Lord Brown's view was that the test of necessity upon which he placed so much emphasis ensured that the principle in O'Kelly, which is reflected in the five propositions which we have tried to distil from the reasoning in Laporte, was consistent with the freedoms expressed in articles 10 and 11 of the Convention. We will return separately below to the principles enshrined in article 5.
"149. As to the European Convention on Human Rights, Mr Pannick QC pointed out that the European Commission and Court have accepted the legitimacy of general statutory restrictions on demonstrations in the form of a public procession, where necessary to avoid a breach of the peace: see Christians against Racism and Fascism v United Kingdom (1980) 21 DR 138 and Ziliberberg v Moldova (Application No 61821/00, decision of 4 May 2004). So the general statements in Ezelin (cf paragraph 144 above) may by parity of reasoning be subject to a similar qualification which would permit preventive action against an innocent person where it was reasonably apprehended that there was no other possible means of avoiding an imminent breach of the peace. On that assumption, a principle permitting such action in such a case would also appear to be sufficiently clear and certain to be considered as "prescribed by law". But the European Court has at all times also stressed the importance of the rights of freedom of assembly and expression and that states have positive obligations to take steps to facilitate their exercise (cf para 136 above). So, wherever possible, the focus of preventive action should, on any view, be on those about to act disruptively, not on innocent parties."
"144. As to the first point, preventive action may on any view be taken by a policeman or other citizen against the person reasonably apprehended to be committing or about to commit the breach of peace: see paragraph 138 above. As to action against others, in Ezelin v France (1991) 14 EHRR 362 the Commission, at para 34, considered that
"generally speaking, an individual does not cease to enjoy the right to freedom of peaceful assembly simply because sporadic violence or other punishable acts take place in the course of the assembly, if he himself remains peaceful in his intentions and behaviour."
The Court said, at para 53:
"The Court considers, however, that the freedom to take part in a peaceful assembly - in this instance a demonstration that had not been prohibited - is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion".
The "first point" referred to in  was whether and to what extent the police may take preventive action against anyone other than persons committing or reasonably apprehended as being about to commit a breach of the peace.
VI Key findings of fact relied upon by the respondent
i) The police officers responsible for policing on the day were the most experienced public order officers in England: . About 6,000 police officers were deployed on the streets, which was about as large a number as had ever been so deployed. To have 6,000 officers policing about the same number of demonstrators was wholly exceptional: [194-6].
ii) Demonstrations in London are common and it is the policy of the Metropolitan Police to ensure that people have the opportunity to express their views: [245-246],  and .
iii) There was no challenge to, or doubt cast upon, the accuracy and reliability of the intelligence on which the police operations were based. The Special Branch assessed the risks and seriousness of anticipated public disorder as being among the worst ever seen in London: . The Special Branch intelligence reported that there would be "500-1,000 hard core demonstrators looking for confrontation, violence and to cause public disorder": . The assessment that there would be such violence and disorder was supported by the lack of co-operation on the part of the organisers, the wearing of masks by demonstrators, the incitement to looting and violence in the organisers' literature and the suggestion of multiple protests to evade the police and the encouragement of secrecy: [532-3] and [207-214].
iv) At previous recent protests on similar themes, both in London and overseas, there had been serious violence, criminal damage and injuries to protestors and the police: [187-192] and . There was a real risk, not only of damage to property, but also of serious injury and even death if the police did not effectively control the crowd and those at risk included members of the public, demonstrators and police officers:  and .
v) Few people attending the demonstration can have been unaware of warnings that there was a very substantial risk of serious violence: see , , which quotes from an article by the Mayor of London, Ken Livingstone, in The Evening Standard telling people not to join the demonstration, and .
vi) The difficulties on the day were the result of a deliberate and complete failure by the organisers to co-operate with the police: .
vii) If the police were to prevent violence and the risk of injury to persons and property, they had no alternative at 2 pm but to impose an absolute cordon: [548-549]. The need to impose the cordon did not arise out of any negligence on the part of the police: . The decision to impose the cordon and the effective imposition of it at about 2.20 pm were proportionate responses by the police to the presence of the crowd in Oxford Circus: . By the end of the trial it was not contended on behalf of the appellants that a cordon was not needed. Their case was that the cordon was maintained for too long and that they were not permitted to leave when they asked to do so: .
viii) The reason for imposing the cordon was to establish control over the crowd prior to and during a planned and controlled dispersal:  and [541-2].
ix) It was not possible to impose the cordon without including Ms Austin in it: . There were operational reasons why Mr Saxby was included in the cordon: [541-2].
x) It was not practicable for the police to release the crowd collectively earlier than they did: . The release policy communicated to police officers by Bronze Commander, Chief Superintendent Allison, which was subject to the discretion of individual police officers to release individual demonstrators, was that officers should seek to identify those who obviously and clearly had nothing to do with the demonstration but were caught up in the cordon because of the unlucky chance of being at Oxford Circus. There was no release policy which could and should have been adopted other than just described, especially where, as here, the police had no opportunity to plan for the event:  read with [521-8] and [347-351]. No alternative release policy was put to the police at the trial: .
xi) The police had no intention of holding demonstrators for longer than necessary: . The object was not to hold the crowd for any reason other than to carry out a controlled release as soon as it was practical and safe to do so: .
xii) At 2.25 pm, which was about five minutes after the cordon was imposed, Chief Superintendent Webb started to plan for, and put in place resources to facilitate, a commencement of controlled dispersal: . At 2.45 pm he expected that the release would have started within about an hour: .
xiii) In fact, nearer 400 than 200 people were released, many of them at about 3 pm. It is likely that a substantial number of those were demonstrators:  and .
xiv) The police did not expect the cordon to last as long as, in the event, it did. It was expected that the dispersal process would take about two to three hours. This was the expectation at 2 pm and at each stage up to about 6 pm, when it was reviewed: .
xv) On a number of occasions during the afternoon Mr French, who was Silver Commander, gave the order to commence controlled release, only to find that he 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. They were decisions at 5.55 pm reversed at 6.15 pm, at 6.50 pm suspended at 7.20 pm and at 7.30 pm stopped shortly afterwards. The final release phase began at 8.02 pm: [360, 374 and 375].
xvi) About 40 per cent of the crowd were actively hostile at any given time, pushing and throwing missiles, and otherwise showing a lack of co-operation. Those not pushing or throwing missiles were not dissociating themselves from those who were: . Some members of the crowd were very violent. For example protestors broke up paving slabs and threw the debris at the police and an officer was struck by a large piece of concrete: . When officers entered the cordon to arrest a suspect or to prevent fires from spreading, there was no sign of the crowd attempting to ease the task of the police: [366 and 547].
xvii) If the appellants had not been controlled by and within the cordons, they would have found themselves in an increasingly disorderly situation, which most people would have regarded as less preferable: .
xviii) The police were in part engaged in an exercise for the benefit of the crowd, to protect members of the crowd from danger from each other and from others who wished to join their number. The risks were from crushing, trampling and missile throwing, which could have been fatal. The crowd of over 1,000 at Oxford Circus needed measures to be taken to control them for their own protection: .
xix) 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: [2 and 548].
xx) Although there was some breakdown of public order on May Day 2001, it was on a much smaller scale than in June 1999 or May Day 2000. There has been no similar breakdown in public order on any of the very many political demonstrations which have taken place since May Day 2001: .
VII The appellants' summary
VIII Did the appellants appear to be about to commit a breach of the peace?
"521. The nearest Ch Supt Allison comes to the point is in his witness statement where he says:
"I spoke to all the Chief Inspectors to ensure, amongst other things, those not involved in the demonstrations were being allowed out of the cordon. The importance of this activity had been recognised throughout the planning process for this operation and built on the lessons learnt when we had used this tactic in the past. The Chief Inspectors indicated that this was being done. I fully accept that this was a very difficult task and required the officers to make on the spot judgments. I was not asking officers to differentiate between violent and non-violent protesters but asking them to identify for release those individuals who obviously and clearly had nothing to do with the demonstration. Such individuals would have been at Oxford Circus by chance when the containment was put in place and so became caught up in it."
The judge does not give a time for this but Mr Allison's witness statement suggests that it was between about 2.30 and 3.40 pm. It is clear from that evidence that the police were aware that there were those in the crowd who were not demonstrators.
"529. In the end, and with considerable hesitation, I infer and find that, subject to personal matters which might have arisen for consideration when each Claimant came forward and asked to be released, it did appear to the police (that is the police did suspect) that all those present within the cordon, including each Claimant, were demonstrators, and that in the particular circumstances of this case, that meant that they also appeared to the police to be about to commit that breach of the peace."
IX If the appellants did not appear to be about to commit a breach of the peace, was their containment lawful?
X Conclusion on false imprisonment
XI The Public Order Act 1986
XII Article 5 of the Convention
"Article 5 - Right to liberty and security
"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.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."
XIII Deprivation of liberty under article 5(1)
i) The duration of the detention was never expected to be the seven or so hours it turned out to be. What was expected, both initially and up to about 6 pm, was a detention that was likely to last some two or three hours at most. "The expectation became correct at about 6 pm", by which we think the judge meant that it did then in fact take some three hours or so before everyone was released. In the meantime there was close confinement in Oxford Circus, with minimal liberty. Its effects were severe, as described elsewhere in the judgment (and referred to above). On the other hand, had those confined not been detained as they were, they would probably have found themselves in an increasingly disorderly situation, with one or two thousand other people converging upon them in Oxford Circus over the subsequent two hours. Those considerations (said the judge) pointed towards the detention being a deprivation of liberty, rather than a restriction, albeit a deprivation which most people would regard as preferable to the likely alternative situation: .
ii) The police intended, not merely to detain the crowd, but to prevent crime and to ensure the safety of persons, the preservation of property in Oxford Street and the protection of other rights of third parties. They also intended to segregate some members of the crowd from others, if appropriate by asking them questions, or by searching them pursuant to section 60 of the 1994 Act: .
iii) The police were also engaged in an exercise for the benefit of those in the crowd, to protect the members of the crowd from danger from each other, and from others who wished to join their number. The main risks were from crushing and trampling, but there were also risks from missile throwing. Missiles aimed at the police were likely to miss and to hit other members of the crowd, which could be fatal to an unprotected member of the crowd. This crowd of over 1,000 in the middle of a major London cross roads needed measures to be taken to control them for their own protection: .
iv) 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. 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 pm, that is about one to two hours at least: .
v) If the only reason why the police detained the crowd had been to take such temporary measures for the protection of the members of the crowd themselves, the judge would have concluded that this was not a deprivation of liberty within the meaning of Art 5(1), but that it was a restriction of liberty; the case would be similar to Guenat v Switzerland, Application No 24722/94: . He added in this regard, also in :"The police owe common law duties of care [to] a crowd for whom they have taken, or should take, control. This is the duty of care to prevent death or physical injury, which was admitted in the Hillsborough litigation. It is also the positive obligation recognised in Osman v UK. If the police are to fulfil such duties effectively, it must follow that they have the powers necessary to enable them to do so, and that these powers should exist where there can be no question of intending to take the detainees before a judge. Necessary powers must include the power to use reasonable force to ensure that members of a crowd stay where the police reasonably require them to stay for as long as is necessary to allow them to disperse safely."
vi) If the police had been intending to question or search members of the crowd, if they thought appropriate, before deciding whether to arrest anyone, it would have been open to the judge to hold that there was no deprivation of liberty, on the basis that the case would then have been similar to X v Germany (1981) 24 DR 1578 (Application No 8819/79), although he also said that he found the principle in X v Germany difficult to discern: .
vii) The judge distinguished R (Gillan) v Commissioner of Police of the Metropolis  UKHL 12,  2 WLR 537, in which the House of Lords held that a person stopped under police stop and search powers in sections 44-47 of the Terrorism Act 2000 was not deprived of his liberty within article 5(1), principally on the ground that the whole process lasted only a few minutes. He added that the principle of proportionality may allow more latitude in a terrorist case than in a public order case, even as bad a case as this one: .
"594. Fortunately the consequences of MD01 [ie 1 May 2001] to the Claimants did not include any injury. What happened to these Claimants on MD01 is comparable in gravity to what happens to many people when a flight is cancelled at holiday time, by reason of a strike or some other such event. It is also comparable to what happens when there has been an accident on the motorway, and the police bring all traffic to a halt to enable the injured to be evacuated and the wrecks to be removed. This can create long jams behind the police barrier. Commander Allison in evidence drew on this as analogy. In that situation also, when the time comes to remove the barrier, the police control the rate at which the traffic starts to move again, in order to avoid the dangers of an uncontrolled release. Those sorts of delay can last as long, or longer, than seven hours. The conditions can be very bad, and may include the need to provide for small children. There would probably be functioning toilets in an airport case, and some food and drink. But the delay in an airport is commonly much longer than seven hours. The similarity is that in each case the victim is in a place he or she has chosen to go, knowing that there can be risks of discomfort involved, if not necessarily the risks that actually occur. Neither Claimant here appreciated there was a risk of containment, whether for seven hours or at all. But that there were risks from the violent elements in the crowd was known to Ms Austin, and must have been obvious, even to Mr Saxby, who had not seen anything in the papers or on TV."
It is also we think important to have in mind when considering this part of the case the judge's critical finding at [548-9] that, if the police were to prevent violence and the risk of injury to persons and property, they had no alternative at 2 pm (when the decision was made) but to impose an absolute cordon.
i) The ECtHR has stressed that one of the purposes of the Convention is to secure a "fair balance" between"the demands of the general interest of the community and the requirement of the protection of the individual's fundamental rights":Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35 at , which was cited with approval by Lord Bingham in Brown v Stott  1 AC 681 at 704F. See also eg Brogan v United Kingdom (1988) 11 EHRR 117 at .
ii) On the particular facts of this case a fair balance would in our judgment have led to the conclusion that the necessary steps taken by the police were lawful.
iii) The considerations identified by Lord Rodger, Lord Brown and Lord Mance in Laporte, which are referred to at [38-43] above, support this approach. In particular Lord Brown expressly noted at  of Laporte ( above) that both articles 10(2) and 11(2) provide in terms for interference with the protective rights if this is necessary for the prevention of disorder or crime. Moreover, as we said at  above, it seems to us that Lord Mance recognised the general approach of the ECtHR as protecting the rights of peaceful demonstrators described in  but subject to permitting preventive action against an innocent person where it is reasonably apprehended that there is no other possible means of avoiding an imminent breach of the peace.
iv) Although the House of Lords was not considering article 5 in Laporte, it does seem to us that it would be surprising if the ECtHR did not approach that article with similar principles in mind. This is especially so since, as Mr Pannick submits, its approach to every case is pragmatic and fact-sensitive: see eg Gillan per Lord Bingham at , R v Spear  1 AC 734 per Lord Rodger at  and Brown v Stott per Lord Bingham at page 704E-F.
"The Court recalls that in proclaiming the 'right to liberty' paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are covered 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, 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 key point is that article 5(1) was intended to avoid arbitrary detention.
"The resulting picture is that article 5 of the Convention guaranteed the individual against illegitimate imprisonment, or confinement so close as to amount to the same thing – in sum against deprivation of liberty stricto sensu – but it afforded no guarantee against restrictions falling short of that."
It must be borne in mind that Sir Gerald was dissenting but so too must the distinction between the two concepts, however difficult the distinction is to make on the facts of a particular case: see Gillan in this court at .
"in the circumstances of the present case the applicant's placement in the nursing home did not amount to a deprivation of liberty … but was a responsible measure taken by the competent authorities in the applicant's interests."
It is fair to say that that was only one of the factors that the court took into account but the case does show the potential importance of such a consideration. We note in passing that, although the decision in HM v Switzerland was distinguished in HL v United Kingdom, the ECtHR did not disagree with the principle.
XIV Article 5(1)(b)
"The obligation in question cannot, in particular, consist in substance merely of an obligation to submit to detention".
According to his submission, for the police to be able to justify a cordon such as was used in the present case by reference to an obligation to comply with the request, or direction, to remain within the cordon, would open the way to the sort of conduct, incompatible with the spirit of the Convention, against which the Court warned in Engel and Guzzardi.
XV Article 5(1)(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;".
"for the purpose of bringing him before the competent legal authority"
did not just apply to the phrase
"on reasonable suspicion of having committed an offence"
but to all parts of article 5(1)(c) including
"when it is reasonably considered necessary to prevent his committing an offence".
i) the appellants were 'imprisoned' for the purposes of the tort of false imprisonment but their 'imprisonment' was lawful because, although the appellants did not themselves appear to be about to commit a breach of the peace, on the judge's findings of fact the police had no alternative but to ask all those in Oxford Circus to remain inside the police cordon in order to avoid an imminent breach of the peace by others;
ii) the correct approach is summarised in the propositions set out in  above as follows:
a) where a breach of the peace is taking place, or is reasonably thought to be imminent, before the police can take any steps which interfere with or curtail in any way the lawful exercise of rights by innocent third parties they must ensure that they have taken all other possible steps to ensure that the breach, or imminent breach, is obviated and that the rights of innocent third parties are protected;
b) the taking of all other possible steps includes (where practicable), but is not limited to, ensuring that proper and advance preparations have been made to deal with such a breach, since failure to take such steps will render interference with the rights of innocent third parties unjustified or unjustifiable; but
c) where (and only where) there is a reasonable belief that there are no other means whatsoever whereby a breach or imminent breach of the peace can be obviated, the lawful exercise by third parties of their rights may be curtailed by the police;
d) this is a test of necessity which it is to be expected can only be justified in truly extreme and exceptional circumstances; and
e) the action taken must be both reasonably necessary and proportionate.
iii) those tests of necessity and proportionality, which are derived from the Irish case of O'Kelly and from statements of principle in the recent House of Lords case of Laporte, were satisfied on the facts found by the judge;
iv) there is no sensible basis upon which this court could or should interfere with those findings of fact;
v) it is unnecessary to express a view upon the respondent's case based on the Public Order Act 1986;
vi) article 5 of the European Convention on Human Rights does not apply because the containment of the appellants within the cordon did not amount to a deprivation of liberty within that article, as opposed to an interference with liberty of movement;
vii) in these circumstances it is not necessary to express a concluded view on the parties' respective contentions, either under article 5(1)(b) or (c) of the Convention, or on the assessment of damages.