Austin & Anor v Commissioner of Police of the Metropolis

Police may curtail the lawful activities of innocent third parties to prevent an imminent breach of the peace only in truly extreme and exceptional circumstances. They must first take all other possible steps to prevent the breach and protect the third parties’ rights. Any interference must be reasonably necessary and proportionate.

On the facts, containing a large crowd was necessary to prevent imminent serious disorder. The appellants’ containment was therefore lawful at common law. It did not constitute an arbitrary deprivation of liberty under article 5 of the Convention, although it substantially restricted movement.

The appellants appealed from the dismissal of their claims by Tugendhat J, reported at [2005] EWHC 480 (QB). They had been contained within a police cordon at Oxford Circus during the May Day 2001 demonstrations and were unable to leave for several hours.

They claimed damages for false imprisonment and breach of article 5 of the Convention. The central issues were whether they appeared to be about to commit a breach of the peace, whether the police could lawfully contain innocent people to prevent disorder by others, and whether the containment amounted to a deprivation of liberty.

1. Appeal dismissed. The appellants were imprisoned for the purposes of the tort of false imprisonment, but the imprisonment was lawful.
2. The threshold for preventive action is imminence. Once a breach of the peace is taking place or reasonably thought imminent, the police must take all other possible steps to prevent it and protect the rights of innocent third parties. Only where there are no other means whatsoever may lawful conduct by those third parties be curtailed. The circumstances must be truly extreme and exceptional, and the action must be reasonably necessary and proportionate. These principles were drawn from O’Kelly v Harvey (1883) 14 LR Ir 105 and the reasoning in R (Laporte) v Chief Constable of Gloucester Constabulary [2006] UKHL 55.
3. The appellants themselves did not appear to be about to commit a breach of the peace. Nevertheless, the judge’s findings established that the police had no alternative to imposing the cordon and maintaining it while safe release was arranged. The police had to establish the necessity of the release policy. Once that was shown, each appellant had to establish that the individual refusal of release was unreasonable in the Wednesbury sense. Neither appellant did so.
4. Article 5 protects physical liberty against arbitrary detention, rather than every restriction on movement. The assessment is fact-sensitive and requires consideration of the concrete situation, including the type, duration, effects and manner of implementation of the measure, together with its purpose and protective context. The original containment was comparable to other crowd-control measures and was not arbitrary. The later violence and risks justified its continuation. The appellants were therefore not deprived of liberty within article 5(1).
5. The court declined to decide whether, if article 5(1) had applied, the detention would have been justified under article 5(1)(b) or (c). It also declined to determine the Public Order Act 1986 issues or damages.

1. Court of Appeal (Civil Division): Appeal dismissed. The common-law false-imprisonment claim failed because the containment was necessary and proportionate. Article 5 was not engaged.
2. High Court, Queen’s Bench Division: Tugendhat J dismissed the claims in [2005] EWHC 480 (QB) .