Austin v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judgment Date | 15 October 2007 |
| Neutral Citation | [2007] EWCA Civ 989 |
| Docket Number | Case No: A2/2005/2025 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 October 2007 |
[2007] EWCA Civ 989
Sir Anthony Clarke Mr
Sir Igor Judge P and
Lord Justice Lloyd
Case No: A2/2005/2025
IN THE SUPREME COURT OF JUDICATURE
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
Keir Starmer QC and Phillippa Kaufmann (instructed by Christian Khan) for the
Appellants
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
Judgement
Sir Anthony Clarke, MR:
This is the judgment of the court to which all its members have contributed.
CONTENTS
| Section | Paragraphs | |
| I | Introduction | 1 to 4 |
| II | The judge's brief summary of events | 5 to 8 |
| III | The claims | 9 to 11 |
| IV | Common law – false imprisonment | 12 |
| V | Breach of the peace | 13 to 50 |
| VI | Key findings of fact relied on by the respondent | 51 |
| VII | The appellants' summary | 52 to 55 |
| VIII | Did the appellants appear to be about to commit a breach of the peace? | 56 to 62 |
| IX | If the appellants did not appear to be about to commit a breach of the peace, was their containment lawful? | 63 to 72 |
| X | Conclusion on false imprisonment | 73 |
| XI | 74 to 84 | |
| XII | Article 5 of the Convention | 85 to 86 |
| XIII | Deprivation of liberty under article 5(1) | 87 to 107 |
| XIV | Article 5(1)(b) | 108 to 110 |
| XV | Article 5(1)(c) | 111 to 117 |
| XVI | Damages | 118 |
| XVII | CONCLUSIONS | 119 to 120 |
I Introduction
This is an appeal from an order made by Tugendhat J on 23 March 2005 dismissing an action brought by the appellants, Ms Austin and Mr Saxby, against the Commissioner of the Metropolitan Police arising out of events in Oxford Circus on May Day 2001. The claims were principally for damages at common law for false imprisonment and under section 7 of the Human Rights Act 1998 ('the HRA') for breach of the appellants' rights to liberty guaranteed by article 5 of the European Convention on Human Rights ('the Convention'). The appeal is brought with the permission of the judge.
The trial of the action took place between 17 January and 4 February 2005. The judge heard a considerable amount of oral evidence and examined a large number of documents. The oral evidence took more than nine days and included the evidence of both appellants, of nine senior police officers and of two experts. In addition the judge watched 21 DVDs which showed the events both of May Day 2001 and of similar previous occasions.
The judge's judgment, [2005] EWHC 480 (QB), which was produced with commendable speed, is a tour de force. It runs to nearly 150 closely typed pages and to 608 paragraphs. It analyses the events of 1 May 2001 in very considerable detail. It would be quite impossible for us to do the same in this judgment. What we say here should therefore be considered in the light of the judge's judgment as a whole, to which the reader is referred for the details of what occurred.
Between the decision of the judge and the hearing of this appeal the House of Lords delivered its decision in R (Laporte) v Chief Constable of Gloucester Constabulary [2006] UKHL 55, [2007] 2 AC 105, which contains important guidance on the common law powers and duties of both the police and members of the public in order to prevent an anticipated breach of the peace.
II The judge's brief summary of events
The judgment is divided into a number of sections, from which we extract only those parts necessary for our decision, without in any way intending to distort the overall picture given by the judge or implying that the parties accept all the factual findings which are not expressly addressed. Section 1 contains a summary in [1] to [11]. At about 2 pm on May Day 2001, which was not a Bank Holiday, a crowd of demonstrators marched into Oxford Circus from Regent Street South. Later others entered or tried to enter from all points of the compass so that by the end of the day there were about 3000 people in Oxford Circus. In addition there were crowds of thousands to the north of Oxford Street and on the west side of Oxford Street itself. The police had information that a demonstration was planned but the organisers had deliberately given no notice of what would happen at 2 pm. They had refused to co-operate with the police at all. Their publicity material led the police to expect a gathering in Oxford Circus at 4 pm. No warning had been given of any march or procession or of the route which demonstrators might take. 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 2 pm onwards. The appellants were not organisers but they and many others suffered the consequences.
The crowd who entered the Circus at 2 pm were, for the most part, prevented from leaving. Others entered Oxford Circus during the afternoon. From about 2.20 pm no-one was allowed to leave except with the permission of the police. Many were prevented from leaving for a period of over seven hours. A number of people who were not demonstrators were caught up within the police cordon, although some were allowed through.
The disruption to shops, shoppers and traffic by the events on that day was enormous. It was a wet and chilly afternoon. Oxford Circus has a diameter of about 50 metres, all of which is taken up by roads, pavements, and the four entrances to the Underground. There is no free space for people to congregate. The physical conditions in Oxford Circus were for a short period quite acceptable but as time passed the conditions became increasingly unacceptable. 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. Fortunately no-one was seriously hurt but some of those attending came very close to sustaining injury and some policemen were injured.
Neither appellant alleged that he or she was injured. Ms Austin had an 11 month old baby whom she needed to collect from the child minder at 4.40 pm. It is likely that in such a large crowd there will have been other women with commitments such as hers. Such a situation is a serious interference with human dignity. As the judge put it at [7], the point the appellants made was that the place was so unsuitable for holding a crowd that they should have been released before the problems became intolerable. The judge recognised at [8] that the fact that such events should take place in London, involving thousands of people unable to leave the police cordons, was a matter of public concern. At [11] the judge described the facts of this case as being quite exceptional. Never before, or since, 1 May 2001 have the police in England formed cordons enclosing a crowd of thousands before a substantial breakdown of law and order has occurred, with the result that the crowd were prevented from leaving for many hours.
The claims
The judge summarised the claims in [12–17]. The appellants are two of some 150 people who have given notice of or commenced claims arising out of the events on 1 May 2001. The appellants claim damages for distress and also both aggravated and exemplary damages. Ms Austin had come to London to take part in the demonstration. Until about 3.30 pm she made speeches through a megaphone on political topics and thereafter, while she was unable to leave Oxford Circus, she made speeches through her megaphone giving advice and comfort to the crowd around her: [13]. By contrast, Mr Saxby came to London on his employer's business, not to demonstrate, and found himself caught up in the events of the day: [12]. Both were detained within the cordons for many hours. They do not now complain so much about the initial cordon and consequent detention but complain that they were unlawfully deprived of their liberty, detained and unlawfully imprisoned by not being released much earlier than they were. Mr Starmer submits in particular that when each presented himself or herself to a police officer on the cordon and asked to leave, each should have been allowed to do so.
It is important to note that, although the judge did not find either Ms Austin or Mr Saxby to be an entirely satisfactory witness, there is no suggestion that either of them acted other than lawfully throughout. The respondent accepted that neither of them was violent or threatened violence or breached the peace or threatened to do so. Ms Austin was exercising her right to demonstrate peacefully and Mr Saxby was innocently caught up in the events. Each wanted to leave the cordon but was not permitted to do so for a long period. After their requests to leave had been refused by individual police officers, neither made any attempt to break through the police cordon. We should perhaps note in passing that we do not know whether any or all the other people who have made or intimated claims were acting lawfully throughout; they may or may not have been.
As already indicated, the appellants' claims are put at common law in the tort of false imprisonment and under section 7 of the HRA for alleged unlawful detention contrary to their rights under article 5 of the Convention. The judge rejected their claims under both heads. Mr Starmer QC submits on their behalf that he was wrong to do so. Before...
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