Austin v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | LORD SCOTT OF FOSCOTE,LORD HOPE OF CRAIGHEAD,LORD CARSWELL,LORD NEUBERGER OF ABBOTSBURY,LORD WALKER OF GESTINGTHORPE |
| Judgment Date | 28 January 2009 |
| Neutral Citation | [2009] UKHL 5 |
| Date | 28 January 2009 |
| Court | House of Lords |
& another
[2009] UKHL 5
Appellate Committee
Lord Hope of Craighead
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Lord Carswell
Lord Neuberger of Abbotsbury
HOUSE OF LORDS
Appellants:
Heather Williams QC
Phillippa Kaufmann
(Instructed by Christian Khan Solicitors)
Respondent:
Lord Pannick QC
John Beggs
(Instructed by Directorate of Legal Services
Metropolitan Police Service)
My Lords,
One of the features of a vigorous and healthy democracy is that people are allowed to go out onto the streets and demonstrate. Thousands of demonstrations take place each year in London. Experience has shown that for the most part gatherings of this kind are peaceful. The police, on whom the responsibility of maintaining public order rests, seek to facilitate rather than impede their activities. Unfortunately, human nature being what it is, this is not always possible. Sometimes an event attracts people who do not share the peaceful intentions of the organisers. Sometimes it is the organisers themselves whose intentions are anything but peaceful. On those occasions it may be necessary for the police to take control of the event to ensure public safety and minimise the risk of damage to property. The event with which this case is concerned was such an occasion.
The ways in which the police will seek to control the event will vary from case to case. In this case their policy was one of containment. Its consequence was that a large number of people were enclosed in the place where they had gathered within a police cordon. They were prevented for many hours from leaving it. Article 5(1) of the European Convention on Human Rights provides that no one shall be deprived of his liberty save in the cases which that article specifies. The appellant was one of those within the police cordon. The question which this case raises is whether the way in which she was treated was incompatible with her Convention right to liberty. Underlying that question is an important issue of principle. The right which is guaranteed by article 5(1) is an absolute right. But it must first be held to be applicable. To what extent, if at all, is it permissible in the determination of that issue to balance the interests of the individual against the demands of the general interest of the community? The appellant submits that it is plain that she was deprived of her right to liberty. She says that the reason why the cordon was put in place and kept there for so long is irrelevant. If she is right, she must succeed in this appeal. If she is wrong, the judge's findings are against her. They show conclusively that the sole purpose of the cordon was to maintain public order, that it was proportionate to that need and that those within the cordon were not deprived of their freedom of movement arbitrarily.
The facts
On 1 May 2001 at about 2 pm a crowd of demonstrators marched into Oxford Circus from Regent Street South. They were joined later by others who entered the Circus, or tried to enter it, from all directions. By the end of the afternoon some 3,000 people were within the Circus and several thousands more were gathered outside in the streets that lead into it. The appellant was among those who went to Oxford Circus as part of the crowd to demonstrate, but she was not one of the organisers. She was prevented from leaving the area by the police cordon for about seven hours. On 29 April 2002 she brought a claim for damages against the respondent for false imprisonment and for breach of her right under article 5(1) of the Convention to liberty. The case went to trial before Tugendhat J who, having analysed the evidence with great care and attention to detail, dismissed her claims: [2005] EWHC 480 (QB); [2005] HRLR 647. What follows is a much abbreviated summary of his account of the event.
1 May 2001, May Day, was not a public holiday in England. Nevertheless the police had been expecting demonstrations. On three previous occasions within the past two years, when the theme had been protests against capitalism and globalisation, they had resulted in very serious breakdowns in public order. The officers in charge of policing on this occasion were the most experienced public order officers in England. They feared that a breakdown in public order would be repeated in 2001. About 6,000 police officers were deployed on the streets of London. This was about as large a number as had ever been so deployed. The Special Branch assessment was that there would be about 500 to 1,000 hard core demonstrators looking for confrontation, disorder and violence. The organisers had deliberately given no notice to the police of their intentions. They had refused to co-operate with them in any way at all. Their literature included incitement to looting and violence, multiple protests to avoid the police and the encouragement of secrecy. Their publicity material had led the police to expect a gathering on Oxford Circus at 4 pm. But no warning was given of any march or procession or of the route which the demonstrators might take. The arrival there of such a large procession at 2 pm, when the area was already busy with shoppers and traffic, took the police by surprise and led them to respond as they did. They decided that, if they were to prevent violence and the risk of injury to persons and damage to property, they had no alternative but to impose an absolute cordon round the entire crowd that had gathered there.
The imposition of the cordon had not been decided upon in advance. Things might have been different if the crowd had built up gradually. As it was, the police decided that if they did not take control of the crowd when it arrived the opportunity to do this might not recur. Their aim was to establish control over it prior to and during a planned dispersal. It was not possible to impose the cordon without including the appellant in it because she was standing not on a pavement at the perimeter of the Circus but on the roadway. It took about 5 to 10 minutes to put in place a loose cordon, and about 20 to 25 minutes to put in place a full cordon. The full cordon was effectively in place by about 2.20 pm. Five minutes later, at 2.25 pm, a senior officer started to plan for the start of a controlled dispersal. At 2.45 pm he had reached the point where he expected the release to start within about an hour. On a number of occasions the order was given to start controlled release but it had to be suspended because of the conduct of protesters either inside or outside the contained area. At 4 pm the crowd were told that they were being contained to prevent a breach of the peace and that they would be released in due course by a prescribed exit. They were asked to be patient. The judge was satisfied that the police had no intention of holding the demonstrators longer than was necessary. The object was not to hold the crowd for any reason other than to carry out a controlled release as soon as it was practicable and safe to do so. In the event the dispersal was not completed until 9.30 pm.
The delay in the dispersal was substantially contributed to by the attitude of the crowd within the cordon which was not co-operating with the police. While about 60% remained calm about 40% were actively hostile, pushing and throwing missiles. Those who were not pushing or throwing missiles were not dissociating themselves from the minority who were. Some members of the crowd were very violent. They broke up paving slabs and threw the debris at the police. The crowd did nothing to help the police when they entered the cordon to arrest a suspect. It was a dynamic, chaotic and confusing situation. It was made all the more difficult by the fact that there were a large number of protesters in the immediate vicinity outside the cordon. They were engaged in the same quest for Oxford Circus that had driven the original crowd there at 2 pm and were refusing to accept control by the police.
The judge held that it was not practicable for the police to release the crowd earlier than they did. For them to have done so earlier would have been a complete abnegation of their duty to prevent a breach of the peace and to protect members of the crowd and third parties, including the police, from serious injury. The policy that was communicated to police officers was that they should seek to identify and release those who obviously had nothing to do with the demonstration but were caught up in the cordon because they had just happened to be in Oxford Circus. This was subject to their discretion to release individual demonstrators. Up to about 400 individuals were released individually. Some of them were bystanders who had been caught up in the demonstration. Others had medical problems or had suffered some injury. The judge was satisfied that there was no other release policy which could and should have been adopted, especially as the police had had no opportunity to plan for the event.
Few of those who were attending the demonstration can have been unaware that there was a substantial risk of violence. On 24 April 2001 an article by the Mayor of London, Ken Livingstone, appeared in the Evening Standard newspaper. He said that he supported the aims of the demonstration, which would be calling for the cancellation of Third World debt, the eradication of poverty, a stop to the privatisation of the London Underground and an end to pollution of the environment. But on this occasion violence was central to the objectives of its organisers. What was planned was not a peaceful protest that might go wrong but a deliberate attempt to create destruction in the capital. He urged all Londoners to stay away from it. The appellant had taken...
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