R (on the application of Hicks & Ors) v Commissioner of Police for the Metropolis [2017] UKSC 9

Four anti-monarchist protesters were arrested on the day of the royal wedding in 2011 to prevent an imminent breach of the peace and released without charge once the risk passed. The Supreme Court held their detention was lawful under article 5.1(c) of the ECHR.

Facts

The appeals arose out of the policing operation for the wedding of the Duke and Duchess of Cambridge on 29 April 2011. The Metropolitan Police faced significant public order challenges: large crowds, the presence of many heads of state and Royal Family members, intelligence of planned disruption circulating on social media, recent violent disorder at the TUC march of 26 March 2011 and the student protests of late 2010, and a ‘severe’ terrorism threat level.

The four appellants were arrested in separate incidents in central London on the basis that the arresting officers reasonably believed arrest necessary to prevent an imminent breach of the peace. They were taken to police stations and released without charge once the wedding was over and the risk of breach of the peace had passed. Their periods of detention ranged from approximately 2½ to 5½ hours.

The Administrative Court rejected the appellants’ broad challenge to the lawfulness of the policing policy and held that the arresting officers had good grounds to believe arrest was necessary to prevent an imminent breach of the peace, and that lesser measures (such as continuous police supervision) were not feasible. The domestic law claims failed. Permission to appeal was granted only on the article 5 ECHR issue.

Issues

The principal issue was whether the appellants’ arrest and short-term preventive detention, followed by release without being brought before a court, was compatible with article 5 of the European Convention on Human Rights, specifically:

• Whether such preventive detention fell within article 5.1(c), notwithstanding the qualifying words ‘for the purpose of bringing him before the competent legal authority’; and
• Alternatively, whether it fell within article 5.1(b) as detention to secure the fulfilment of an obligation prescribed by law.

Arguments

Appellants

The appellants argued that the Court of Appeal was wrong not to follow the majority in Ostendorf v Germany, which held that article 5.1(c) does not authorise purely preventive detention where the person is not suspected of having already committed an offence. They submitted the Court of Appeal’s inference of a contingent purpose to bring them before a court was artificial; the evidence showed the purpose of detention was purely preventive. They further argued article 5.1(b) did not apply.

Respondent

The Commissioner argued there was a contingent purpose to bring the appellants before a court sufficient to satisfy article 5.1(c), and that the detention was independently justified under article 5.1(b).

Judgment

Lord Toulson (with whom Lord Mance, Lord Reed, Lord Carnwath and Lord Dyson agreed) dismissed the appeals and held that the arrests and detention were lawful under article 5.1(c).

Reviewing the Strasbourg case law

Lord Toulson examined Lawless v Ireland (No 3), Brogan v United Kingdom, Jecius v Lithuania, Nicol and Selvanayagam v United Kingdom, and most importantly Ostendorf v Germany, where the Fifth Section was divided. The majority in Ostendorf held preventive detention fell within article 5.1(b) but not 5.1(c); the minority took the opposite view.

Lord Toulson emphasised the central principle articulated by the Strasbourg court in Ostendorf:

The court is aware of the importance, in the German legal system, of preventive police custody in order to avert dangers to the life and limb of potential victims or significant material damage, in particular, in situations involving the policing of large groups of people during mass events … It reiterates that 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.

Reasoning

The Court held that article 5’s fundamental purpose is to protect against arbitrary detention, with timely judicial control as an essential safeguard, but article 5 must not be interpreted so as to render it impracticable for the police to maintain public order. These objectives are complementary, not contradictory. Lord Toulson cited Lord Hope in Austin v Commissioner of Police of the Metropolis on the need for a pragmatic, proportionate approach balancing individual rights and community safety.

The arrests were taken in good faith, were proportionate, and were not arbitrary. If the police could not lawfully detain for a short period (too short to bring the person before a court) where reasonably considered necessary to prevent imminent violence, their ability to maintain public order at mass events would be severely hampered.

The Supreme Court preferred the view of the minority in Ostendorf, holding that article 5.1(c) is capable of applying to detention for preventive purposes followed by early release. The Court reasoned:

• The situation fits more naturally within the language of article 5.1(c) than 5.1(b), as the second limb of 5.1(c) expressly covers cases where detention ‘is reasonably considered necessary to prevent his committing an offence’.
• The majority view in Ostendorf effectively collapses the second limb into the first, contrary to Lawless.
• It would be perverse to require the police to harbour an artificial purpose of prolonging detention until the person could be brought before a court, simply to make the detention lawful; this would lengthen detention unnecessarily.
• The qualifying words ‘for the purpose of bringing him before the competent legal authority’ should be read as implicitly dependent on the cause for detention continuing long enough for the person to be brought before the court. Where detention ends early, it is enough that the lawfulness of the detention can subsequently be challenged in court.

Lord Toulson preferred this analysis to the Court of Appeal’s reasoning, which inferred a conditional purpose ab initio to bring the appellants before a court, although the result was the same.

On article 5.1(b), Lord Toulson was inclined to agree with the minority in Ostendorf that the obligation must be specific, and that a general obligation not to commit an offence (or breach of the peace) does not become sufficiently specific merely by being reiterated in particular circumstances. Stretching article 5.1(b) further would risk leaving the police powerless in urgent cases where there was no time to give a warning.

Implications

The decision establishes, in domestic law, that short-term preventive arrest and detention to prevent an imminent breach of the peace, followed by release once the risk has passed, is compatible with article 5.1(c) ECHR, even where the detained person is not brought before a court. The key safeguards remain: (i) the detention must be in good faith, proportionate, and not arbitrary; (ii) the lawfulness of the detention must be susceptible to subsequent judicial challenge.

The judgment confirms the continuing relevance of the common law power to arrest to prevent a breach of the peace, as recognised in Albert v Lavin and R (Laporte) v Chief Constable of Gloucestershire Constabulary, and demonstrates how it can be reconciled with Convention rights.

The decision is significant for police forces managing large public events. It recognises a practical reality: requiring the police to either prolong detention to enable a court appearance or refrain from arrest altogether would be counterproductive and contrary to the underlying purposes of article 5.

The Court openly departed from the majority approach in Ostendorf, exercising its judicial choice where Strasbourg case law was unsettled. The Supreme Court treated Lawless as authoritative but limited it to its context, and declined to apply Ostendorf‘s narrower reading of article 5.1(c). The Court also declined to expand article 5.1(b) to fill the gap, preferring to keep its ‘concrete and specific’ obligation requirement intact.

The case is important in the wider legal context because it clarifies the interaction between common law preventive arrest powers and Convention rights, providing operational certainty for policing of mass events while preserving the core protection against arbitrary detention through proportionality, good faith and the availability of subsequent judicial review.

Verdict: Appeals dismissed. The Supreme Court unanimously upheld the decisions of the Administrative Court and the Court of Appeal that the appellants’ arrests and detention to prevent an imminent breach of the peace were lawful under article 5.1(c) of the European Convention on Human Rights.

Source: R (on the application of Hicks & Ors) v Commissioner of Police for the Metropolis [2017] UKSC 9