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

A protestor and a bystander were held within a police cordon ('kettling') for several hours to prevent public disorder. The House of Lords held this was not a deprivation of liberty under Article 5 ECHR, but a proportionate restriction on movement.

Facts

On 1 May 2001, a demonstration was planned in central London. The police had intelligence suggesting a risk of serious public disorder and violence. In response to escalating events, the police imposed a cordon at Oxford Circus to contain a large and volatile crowd, estimated at around 3,000 people. The first appellant, Mrs Austin, was a protestor who had joined the demonstration. The second appellant was a bystander on his way home from work. Both were held within the cordon for approximately seven hours with limited access to food, water, or toilet facilities. They brought a claim for false imprisonment and a breach of Article 5 of the European Convention on Human Rights (ECHR), which protects the right to liberty and security of person.

Issues

The central legal issue was whether the police containment, or ‘kettling’, of the appellants amounted to a ‘deprivation of liberty’ for the purposes of Article 5(1) of the ECHR. If it did, the second question was whether it could be justified under any of the exceptions listed in Article 5(1).

Judgment

The House of Lords unanimously dismissed the appeal, holding that there had been no deprivation of liberty in violation of Article 5. The Lords affirmed the decisions of the High Court and the Court of Appeal. Lord Hope of Craighead, giving the leading speech, emphasised that the distinction between a restriction on liberty and a deprivation of liberty is a matter of degree and intensity, not nature or substance. The entire context of the situation must be considered.

He stated that the European Court of Human Rights’ jurisprudence requires a concrete assessment of the situation, taking into account factors like the type, duration, effects, and manner of implementation of the measure in question. Lord Hope found that the police action was not arbitrary but was undertaken in good faith, was proportionate to the threat of serious public disorder, and was enforced for no longer than was reasonably necessary.

Lord Hope explained the contextual approach:

In this case the context is all important. The police were confronted by a situation that was fluctuating and unpredictable. It was impossible to predict with any accuracy how long the containment, once it was imposed, would have to last. The measures were resorted to in order to avoid a real risk of serious injury or damage and were kept in place for no longer than was reasonably thought to be necessary to achieve that aim.

Lord Neuberger added that the purpose of the measure is a relevant factor. A restriction on liberty imposed for a legitimate public safety purpose, such as preventing violence, is less likely to be considered a ‘deprivation’ than one imposed for a purely coercive or punitive reason. The court concluded that the conditions at Oxford Circus, while uncomfortable, did not amount to a deprivation of liberty when balanced against the imperative of preventing widespread violence and disorder. The focus was on whether the measure was a reasonable and proportionate response to a genuine and immediate threat to public safety.

Implications

The decision provided significant legal authority for the police tactic of ‘kettling’ as a method of crowd control in situations of threatened public disorder. It established that not every restriction on freedom of movement constitutes a ‘deprivation of liberty’ under Article 5. The case highlights that the purpose, proportionality, and duration of the restraint, viewed within the specific context, are crucial in determining whether the threshold for deprivation of liberty has been crossed. The ruling represents a key balancing act between the fundamental right to individual liberty and the state’s duty to maintain public order and safety.

Verdict: Appeal dismissed.

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