Austin & Anor v The Commissioner of Police of the Metropolis

A temporary police containment may amount to a deprivation of liberty under Article 5, even where imposed to prevent disorder and protect those contained. Article 5(1)(c) may nevertheless apply where the detention has a conditional purpose of arresting and bringing before a judge those reasonably suspected of offending. A measure short of arrest must be based on reasonable suspicion that the individual presents the relevant threat. Sections 12 and 14 of the Public Order Act 1986 may support controlled dispersal, including temporary detention, where necessary and proportionate. The common-law defence of necessity may justify false imprisonment where detention is reasonably required to prevent serious injury or death. On the facts, the containment, continued detention and individual release decisions were lawful and proportionate.

The claimants sued the Commissioner in false imprisonment and under the Human Rights Act 1998 for breach of Article 5. On 1 May 2001, both were caught within a police cordon at Oxford Circus during a large anti-capitalist demonstration. Ms Austin was a peaceful protester who later sought release to collect her baby. Mr Saxby was a bystander who said he had business to attend to. The cordon remained substantially in place for several hours while the police sought to prevent violence, protect property and arrange a controlled dispersal. The central questions concerned the application of Article 5, the common-law powers to prevent breaches of the peace, necessity, and sections 12 and 14 of the Public Order Act 1986.

1. Outcome. Both claims failed. The court held that the containment became sufficiently intense to constitute a deprivation of liberty under Article 5(1), and amounted to imprisonment for the purposes of false imprisonment.
2. Article 5(1)(c). The police did not intend to bring every detainee before a judge. Their purpose was conditionally to arrest and bring before a judge those whom they reasonably suspected of having committed, or being about to commit, offences. That conditional purpose was capable in principle of satisfying Article 5(1)(c), provided the relevant conditions were fulfilled promptly.
3. Individual suspicion. A measure short of arrest must be supported by reasonable suspicion that the individual presents the relevant threat. On the evidence, it was reasonable in the exceptional circumstances to infer that each claimant, as a member of the voluntarily assembled crowd, appeared to be about to participate in or contribute to the threatened breach of the peace, subject to consideration of personal circumstances when release was requested.
4. Proportionality and release. The absolute cordon was a proportionate response to the intelligence, previous disorder, the crowd’s conduct and the immediate risks to life, persons and property. Collective release could not safely occur earlier because the dispersal route was obstructed, police resources were engaged elsewhere, and uncontrolled release would have risked renewed disorder. The officers retained a discretion to release individuals, but the claimants failed to show that its exercise was unreasonable.
5. Statutory powers. Sections 12 and 14 of the Public Order Act 1986 could justify directions ending or controlling a procession or assembly, including dispersal by a specified route and temporary detention necessary to effect safe dispersal. The powers could be relied on although the officers had acted principally under common-law powers and had not identified the statutory provisions at the time.
6. Necessity and final orders. Necessity was available as a defence to false imprisonment where detention was reasonably required to prevent serious injury or death, and the need had not been created by police negligence. The statutory powers also justified the detention. The claims were dismissed.