Austin v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 23 March 2005 |
| Neutral Citation | [2005] EWHC 480 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ02X01338 |
The Honourable Mr Justice Tugendhat
Case No: HQ02X01338
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Keir Starmer QC & Phillippa Kaufmann (instructed by Christian Khan) for the Claimants
John Beggs, George Thomas & Amy Street (instructed by David Hamilton, Director of Legal Services, Metropolitan Police Service) for the Defendant
Hearing dates: 17 th January 2005—4 th February 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Tugendhat:
| 1 | OXFORD CIRCUS MAY DAY 2001 | 1 |
| 2 | THE CLAIMS | 12 |
| 3 | THE CONTENTIONS OF THE PARTIES | 18 |
| 4 | LIBERTY (FREEDOM FROM ARBITRARY DETENTION) | 36 |
| 4.1 | False imprisonment and Art 5 | 41 |
| 4.2 | Necessity at common law | 49 |
| 4.3 | Art 5(1) | 56 |
| 4.4 | Art 5(1)(c) | 73 |
| 4.5 | Individual requests for release | 77 |
| 5. | PUBLIC ORDER | 79 |
| 5.1 | Public order offences under the Public Order Act 1986 Pt 1 | 85 |
| 5.2 | Preventative measures under the Public Order Act 1986 Pt II | 86 |
| 5.3 | 101 | |
| 5.4 | Criminal Law Act 1967 s.3 | 103 |
| 5.5 | Measures short of arrest to prevent a breach of the peace | 106 |
| 6. 6.1 | THE QUESTIONS TO BE ANSWERED The Art 5 questions | 155 |
| 6.2 | The false imprisonment question | 156 |
| 7. | THE BURDEN OF PROOF | 157 |
| 8. | THE LEVEL OF SCRUTINY | 162 |
| 9. | THE EVIDENCE IN THE CASE | 168 |
| 10. | 18 JUNE 1999, 30 NOVEMBER 1999, MAY DAY 2000 | 180 |
| 11. | INTELLIGENCE | 198 |
| 12. 12.1 | THE PUBLIC ARE INVITED AND WARNED The information from the organisers | 206 |
| 12.2 | The warning from the Mayor and the Press | 226 |
| 13. | THE PLAN FOR THE DAY | 230 |
| 14. | EVENTS UP TO MIDDAY | 267 |
| 15 | THE PROCESSION UP REGENT STREET | 283 |
| 16. 16.1 | THE DECISION TO IMPOSE AN ABSOLUTE CORDON The factual evidence | 299 |
| 16.2 | The expert evidence | 319 |
| 17. | THE PLAN FOR RELEASE | 327 |
| 18. | DELAYS IN RELEASE | 359 |
| 19. | THE END OF THE DAY | 414 |
| 20. | THE EVIDENCE OF MS LOIS AUSTIN AND MR MULHOLLAND | 424 |
| 21. | THE EVIDENCE OF MR SAXBY | 474 |
| 22. | THE EVIDENCE OF OTHER WITNESSES FOR THE CLAIMANTS | 498 |
| 23. 23.1 | CONCLUSIONS ON LIABILITY Art 5 Question (i) | 501 |
| 23.2 | Art 5 Question (ii) | 513 |
| 23.3 | Art 5 Question (iii) | 517 |
| 23.4 | Art 5 Question (iv) | 531 |
| 23.5 | Art 5 Question (v) | 536 |
| 23.6 | Art 5 Question (vi) | 567 |
| 23.7 | Art 5 Question (vii) | 568 |
| 23.8 | Art 5 Question (viii) | 569 |
| 23.9 | Art 5 Question (ix) | 571 |
| 23.10 | Art 5 Question (x) | 572 |
| 23.11 | False imprisonment Question (i) | 573 |
| 23.12 | False imprisonment Questions (ii) to (iv) | 574 |
| 23.13 | False imprisonment Question (v) | 575 |
| 23.14 | False imprisonment Questions (vi) – (x) | 579 |
| 24. | THE RESULT | 580 |
| 25. | DAMAGES | 581 |
| 26. | FREEDOM OF EXPRESSION AND ASSEMBLY | 598 |
OXFORD CIRCUS MAY DAY 2001
Oxford Circus is the junction where Oxford Street crosses Regent Street in the centre of London. Regent Street runs South through Piccadilly Circus, to Pall Mall. Pall Mall leads East into Trafalgar Square. From Trafalgar Square the Strand runs East towards the City of London, and Whitehall runs South past Downing Street to Parliament Square. All of these streets are in the City of Westminster, in which the centre of Government of England is located, and in which the main shops of London are to be found. From Parliament Square to Oxford Circus is an easy half hour walk. Oxford Street and Regent Street are two of the main shopping streets. Although quite wide by London standards, they are narrow by the standards of most capital cities, about 25m across at the widest, including the pavements. They can take only two lanes of traffic in each direction. The pavements on either side are normally crowded with shoppers. It is the City of London that is associated most with finance and capitalism, while the shopping streets of Westminster are full of clothes and other consumer goods. A high proportion of these goods are made in the third world. To the North East of the Circus is Niketown, which sells Nike sportswear and shoes made mainly in the third world. To the North West and South West are Hennes and Mauritz or H&M and Benetton, which sell affordable women's clothes.
On 1 st May 2001, May Day, ("MD01") at about 2pm a crowd of demonstrators marched into Oxford Circus from Regent Street South. Later in the afternoon others entered or tried to enter from all four points of the compass, so that by the end of the day some 3000 people were within the Circus. In addition there were crowds of thousands outside it to the North of Oxford Street and on the West side in Oxford Street itself. The organisers had deliberately given no notice to the police that this would happen at 2pm. They had refused to co-operate with the police in any way at all. The organisers' publicity material led the police to expect a gathering in Oxford Circus at 4pm. The police had been given no forewarning at all of any march or procession, or of the route by which people were to arrive in Oxford Circus. It was this deliberate lack of co-operation by the organisers, which was unlawful, that led to the police responding as they did, and to everything that happened from 2pm onwards that day. The Claimants were not organisers, and they and others suffered the consequences.
The crowd who entered the Circus at 2pm were, for the most part, prevented from leaving. The police stood in lines across the exits to the junction. From about 2.20pm people could leave only with the permission of the police. Some other crowds entered the junction through the police lines during the afternoon. People were prevented from leaving, many of them for a period of over 7 hours.
May Day is not a public holiday in England. The disruption to shops, shoppers and traffic by the events on that day in 2001 was enormous. A number of people who were not demonstrators were caught up within the police cordons. Some were released through the cordon. Others were not. It was a wet and chilly afternoon. Oxford Circus has a diameter of about 50 metres, all of which is taken up by the roads, the pavements, or the four entrances to the underground. There is no free space for people to congregate.
Political demonstrations in London are sometimes directed to a specific target, such as an embassy, which dictates where such demonstrations are to take place. Otherwise, processions and demonstrations normally begin or end in one of a small number of areas where there is space for a crowd, such as Hyde Park, Trafalgar Square or Parliament Square. Oxford Circus is not one of these places.
The physical conditions in Oxford Circus were for a short period quite acceptable. Everyone is accustomed to being held up when travelling, or attending some public event outdoors, whether for entertainment or for any other reason. But as time passed the conditions became increasingly unacceptable. The Claimants do not claim that they suffered any personal injury, or advance any claim of that kind. No one was seriously hurt. But the position came very close to causing injury to some of those attending, and policemen were injured.
In particular, in the absence of toilets, people had to relieve themselves in the street in public. This and other problems bore particularly hard on some of the women. Ms Austin had an 11 month old baby whom she needed to collect from the child minder at 4.40pm. It is likely that in such a large crowd there will have been other women with commitments such as hers. That situation is a serious interference with human dignity. I have heard no evidence that anything worse than that occurred, but it would not be surprising if much worse things had occurred, in terms of physical suffering. It was not, of course, suggested that temporary toilets should have been set up in Oxford Circus. The point the Claimants make is that that the place is so unsuitable for holding a crowd that they should have been released before these problems became intolerable.
Whether anything else about what happened in Oxford Circus was acceptable is another matter. The events were broadcast in the news media. That such events should take place in London, involving thousands of people unable to leave the police cordons, is a matter of public concern. It calls for an explanation. That is why these proceedings have been brought.
While this is a private law claim for damages, and not, as similar cases have been, an application for judicial review of the police decisions, the desire for compensation is not Ms Austin's primary motivation for bringing the claim.
This judgment deals with issues of importance which were left undecided in the judgment of the Court of Appeal delivered on 8 December 2004 in another case relating to a political demonstration which was brought by way of judicial review. In words adapted from those of the Court in that case ( R (Laporte) v Chief Constable of Gloucestershire Constabulary [2004] EWCA Civ 1639; [2005] 1 All ER 473 para [1], the issues relate to the ability of the police to take action to avoid a breakdown in law and order as a result of a demonstration. This still depends, at least in part, on the police's duty, which they share with members of the public, at common law to take action to prevent breaches of the peace. The police also have a right, and perhaps a duty, to take measures short of arrest, sometimes called self-help, when there is unlawful conduct which...
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