Austin v Commissioner of Police of the Metropolis [2009] UKHL 5 (28 January 2009)

During a May Day demonstration in Oxford Circus, police cordoned approximately 3,000 protesters for seven hours to prevent anticipated violence. The appellant challenged this containment as unlawful deprivation of liberty under Article 5 ECHR. The House of Lords held that proportionate crowd control measures taken in good faith do not constitute deprivation of liberty.

Facts

On 1 May 2001, approximately 3,000 demonstrators gathered at Oxford Circus, London. Police had anticipated serious disorder based on previous May Day protests. The organisers had refused to cooperate with police and their literature included incitement to looting and violence. When a large crowd unexpectedly arrived at 2pm, police imposed a cordon around the entire area by 2.20pm. The appellant, Ms Austin, was confined within this cordon for approximately seven hours despite having no violent intentions herself. Conditions were uncomfortable with cold, wet weather, no food, water or toilet facilities. The police attempted controlled releases but were hindered by violence from protesters both inside and outside the cordon.

Background to the Demonstration

The Mayor of London had publicly warned that violence was central to the demonstration’s organisers’ objectives and urged Londoners to stay away. About 40% of those within the cordon were actively hostile to police, throwing missiles and breaking up paving slabs.

Issues

The central issue was whether the police containment of the appellant constituted a deprivation of liberty contrary to Article 5(1) of the European Convention on Human Rights. The appeal also raised the fundamental question of whether purpose and proportionality could be considered when determining if Article 5(1) was engaged at all, given that the right to liberty is absolute.

Judgment

The House of Lords unanimously dismissed the appeal, holding that Article 5(1) was not engaged in the circumstances.

The Threshold Question

Lord Hope explained that whether there is a deprivation of liberty, as opposed to a mere restriction of movement, is a matter of degree and intensity. Account must be taken of a whole range of factors including the specific situation of the individual and the context in which the restriction occurs. The paradigm case of deprivation of liberty is close confinement in a prison cell.

Purpose and Proportionality

The Lords held that purpose is relevant when determining whether Article 5(1) is engaged. Lord Hope stated:

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.

The measures of crowd control must be resorted to in good faith, must be proportionate, and must be enforced for no longer than reasonably necessary. If these requirements are met, measures of crowd control undertaken in the interests of the community will not infringe Article 5 rights.

Application to the Facts

Lord Neuberger identified the significant features: the cordon was imposed purely for crowd control purposes; it was necessary due to threatened violence; its purpose was plain to those confined; it lasted as short a time as possible; inclusion of the appellant was unavoidable; non-demonstrators were promptly released; and the appellant knew in advance that violence was anticipated.

Implications

This decision establishes that proportionate police crowd control measures, implemented in good faith to prevent serious public disorder and protect people and property, do not engage Article 5(1) ECHR. The judgment recognises the practical necessity of allowing police to manage public order situations without every exercise of crowd control being subject to the strict requirements of Article 5 detention. The decision draws a distinction between restrictions on liberty of movement (governed by Article 2 of Protocol 4, which the UK has not ratified) and deprivation of liberty under Article 5. The case has significant implications for policing of demonstrations and public events, confirming that containment tactics can be lawful provided they meet the requirements of good faith, proportionality, and reasonable duration.

Verdict: Appeal dismissed. The police containment did not constitute a deprivation of liberty under Article 5(1) ECHR as the measures were taken in good faith, were proportionate to the situation, and were enforced for no longer than reasonably necessary.

Source: Austin v Commissioner of Police of the Metropolis [2009] UKHL 5 (28 January 2009)