R (Hicks and Others) v Commissioner of Police of the Metropolis

JurisdictionEngland & Wales
JudgeLord Justice Maurice Kay
Judgment Date22 January 2014
Neutral Citation[2014] EWCA Civ 3
Docket NumberCase No: C1/2012/2835
CourtCourt of Appeal (Civil Division)
Date22 January 2014

[2014] EWCA Civ 3

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

DIVISIONAL COURT (RICHARDS LJ & OPENSHAW J)

REF: CO7241/2011

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division

Lord Justice Leveson

and

Lord Justice Aikens

Case No: C1/2012/2835

Between:
The Queen (oao) Hicks & Ors
Appellant
and
Commissioner of Police of the Metropolis
Respondent

Ms Phillippa Kaufmann QC and Ms Ruth Brander (instructed by Bhatt Murphy Solicitors) for the Appellants

Mr Sam Grodzinski QC and Mr Mark Summers (instructed by Directorate of Legal Services, Metropolitan Police) for the Respondent

Lord Justice Maurice Kay

This is the judgment of the Court to which all members have made substantial contributions.

1

The manner in which the Metropolitan Police conducted operations to maintain public order at the time of and immediately prior to the Royal Wedding on 29 April 2011 has given rise to a number of challenges. These were the subject of judicial review before the Divisional Court (Richards LJ and Openshaw J), leading to a comprehensive judgment which dismissed all the claims that had been pursued: see [2012] EWHC 1947 (Admin). Separate appeals were mounted against different parts of the judgment; with the leave of Moses LJ, this appeal has only concerned the issue whether the court erred in finding that the arrest and detention of these (and other) appellants were compatible with Article 5(1) of the European Convention on Human Rights ('ECHR').

2

In short, as a matter of domestic law, the Divisional Court determined that the arrests and detention of each of the appellants prior to the wedding and up to its conclusion were lawful. That finding is no longer the subject of challenge. The present appeals are concerned with the question whether the deprivation of the appellants' liberty contravened Article 5 of the ECHR.

3

Before the Divisional Court, in addition to the four persons in whose name this appeal has been brought, there were 11 others, five of whom have not appealed; they were collectively referred to as "the Hicks claimants" to distinguish them from five others who pursued linked claims. The Hicks claimants themselves divided into four groups reflecting the fact that they were arrested in four separate incidents: these consisted of Brian Hicks, the Starbucks claimants, JMC and the Charing Cross claimants. Adopting a suggestion advanced by Moses LJ, it has been agreed to focus, as test cases, on four appellants, each representing one of the four groups, on the basis that it has also been agreed that there is no material difference between the circumstances of each appellant within each group although it is equally agreed that it will be in order to refer to the custody records and statements affecting all appellants. In those circumstances, the appeals of the other 11 appellants have been stayed pending the outcome of this appeal.

The Facts

4

A detailed analysis of the policing context and the competing claims in relation to the facts surrounding the arrests can be found in the judgment of the Divisional Court at paragraphs 1–120. For the purposes of this judgment, it is sufficient to summarise the individual circumstances quite shortly.

Brian Hicks

5

Brian Hicks is 44 years of age and has a long-standing involvement in republican politics. He has some previous convictions for minor offences committed when he was much younger but has had no convictions for over 20 years. His account is that, on 29 April 2011, he was intending to go via Trafalgar Square and Soho Square (at both of which he was aware that there were demonstrations or other events were planned) to Red Lion Square, to attend the "Not the Royal Wedding" street party organised by the campaign group Republic. He was stopped by a plain clothes police officer (who was recognisable to him because he had been at previous demonstrations but he was unaware of his name) and searched under section 1 of the Police and Criminal Evidence act 1984 (PACE) on the ground of suspicion of possession of items for use in criminal damage. Although nothing of significance was found in his possession, Mr Hicks was arrested.

6

At Albany Police Station, the custody sergeant was informed that Mr Hicks had been arrested to prevent a breach of the peace. Having made a telephone call, the custody sergeant appeared to be satisfied in relation to his detention. He was then subject to a strip search, during which he reports that he overheard someone outside the cell say "They want him here till 3.00pm, when the celebrations finish."

7

The police account of the circumstances in which Mr Hicks came to be arrested is provided by the arresting officer, Inspector Wakefield. He describes his concern that Mr Hicks was planning an "individual direct action of criminal damage against the shops on Charing Cross Road" and says that he had items in his pockets that would assist him in this plan. Based on his previous experience of Mr Hicks at protests where violence had erupted, he expressed the suspicion that he was heading for Trafalgar Square to meet with others who were intent on causing disruption to the Royal Wedding, with the result that he had to arrest Mr Hicks in order to prevent a breach of the peace.

8

We turn to the custody record. After the recitation of the circumstances of the arrest, timed at 10.55am, the custody sergeant records (with abbreviations explained but typographical errors uncorrected):

"I explained to DP [Detained Person] that as BOP [Breach of Peace] is not a criminal offence the rules re solicitor do not apply however, we shall work within the spirit of PACE. PD requested sols [solicitors] and was called by PC Price.

I explained to PD that as he was in custody to prevent a BOP he was unlikely to be released until the celebrations had finished, after speaking to Bronze Crime [ie part of the command] earlier this is anticipated to be c 3 am. I relayed this to PD and he made no representations re this. He appears resigned to his fate."

9

At 11.44 am, there is noted that the arresting officer arrest will be forwarded to the custody suite at the first opportunity."

10

Finally, at 14.34, there is a further note which brought the detention of Mr Hicks to an end:

"I have just received information from DS Annette MASLIN, Who is from Op Malone (Bronze Crime Support). As the wedding itself is now over and the immediate celebrations have finished, there is no longer a likelihood of a BOP and PD may be released."

Deborah Scordo-Mackie

11

Deborah Scordo-Mackie is the representative of the 'Starbucks' claimants, all of whom are of good character, with no previous convictions or cautions and with no previous adverse interaction with the police. They do not describe themselves as particularly anti-monarchist, and their evidence is that none was intending to participate in any form of anti-Royal Wedding demonstration on 29 April.

12

They arrived in Soho Square between 10.00am and 11.00am, their intention being to take part in the "zombie picnic" organised by the campaign group Queer Resistance, which publicises the impact of Government spending cuts on lesbian, gay, bisexual and transgender communities. All four were dressed in some element of zombie fancy dress and wore make-up accordingly. Shortly after meeting in Soho Square, the group observed a scuffle between some plain clothes police officers and a protester who had been singing protest songs. They then noticed a large number of police officers blocking three of the four routes out of Soho Square and decided to leave by the unblocked exit not wishing to encounter any trouble. They intended to go for a drink together at Starbucks in Oxford Street before going their separate ways.

13

Having been in Starbucks for a few minutes, police officers entered and asked them to accompany them outside. They were then searched under s.60 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act"), which, under s.60AA, gives power to require the removal of disguises. Nothing of significance was found. The female officer who had been dealing with them took a call on her radio and then informed them that she had to arrest them. She apparently apologised for this and said that it had been ordered by someone higher up. The officers told the group that the view had been taken that their costumes suggested that they might cause trouble later in the day. In fact, the police had obtained intelligence to the effect that there had been a plan for protesters to dress as zombies, meet at Westminster Abbey at 11am, throw maggots at the wedding procession leaving the church and to cause other disruptions. The officers were therefore told that the group were intending to breach the peace and should be arrested.

14

Ms Scordo-Mackie was taken to Belgravia Police Station, the reasons for her arrest being recorded on the custody record as being "To prevent the detained person committing an offence against public decency. To prevent the detained person causing physical injury to self or any other persons." The circumstances were that "PD part of a group seen earlier and fear that PD and others would cause a BOP by attending Royal Wedding Route". The disposal is initially recorded as: "Bind over after complaint — breach of the peace likely" but marked at 15.54 "No Further Action", the relevant entry reading:

"Following consultation with officers in charge of the Royal Wedding Operation, it is now clear that no further threat is posed by any of the persons concerned, therefore the PD is to be released...

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