Austin & Anor v Commissioner of Police of the Metropolis

The House of Lords considered whether people contained within a police cordon at a violent demonstration were "deprived of their liberty" under Article 5(1) of the European Convention on Human Rights. The court held that whether a restriction on movement crosses the threshold into a deprivation of liberty is a question of degree and intensity and requires a fact-sensitive assessment. It was held that, for measures of crowd control, the purpose and good faith of the authorities, proportionality and limitation to what is reasonably necessary are material to deciding whether Article 5(1) is engaged. Applying those principles to the unchallenged findings of fact of the trial judge, the containment in Oxford Circus was a proportionate, good faith crowd-control measure and did not amount to an arbitrary deprivation of liberty within the meaning of Article 5(1).

This case arose from the containment by the police of some 3,000 demonstrators and others in Oxford Circus on 1 May 2001. The lead appellant sued the Metropolitan Police for false imprisonment and for breach of her Article 5(1) right to liberty after she was prevented from leaving by a police cordon for about seven hours.

The procedural history was:

• Trial before Tugendhat J: claim dismissed ([2005] EWHC 480 (QB)).
• Court of Appeal: appeal dismissed but the Court corrected one factual finding about the police's belief that everyone in the cordon was likely to commit a breach of the peace ([2007] EWCA Civ 989; [2008] QB 660).
• House of Lords: appeal heard and dismissed ([2009] UKHL 5).

The principal legal issues were (i) whether the police cordon amounted to a "deprivation of liberty" under Article 5(1), (ii) whether the purpose of the restriction (public safety/crowd control) is relevant to that threshold question, and (iii) whether, if Article 5(1) were engaged, any relevant sub-paragraphs (notably (b) or (c)) could justify the detention.

The House of Lords reviewed Strasbourg jurisprudence and domestic authorities and concluded that the question is fact-sensitive and that there is a threshold of degree and intensity to cross before Article 5(1) applies. The court held that the purpose and the good faith of the authorities, together with proportionality and the requirement that the measure should not be maintained longer than reasonably necessary, are material when considering whether a restrictive measure is a deprivation of liberty. Measures of crowd control fall outside Article 5(1) provided they are not arbitrary: they must be undertaken in good faith, must be proportionate and must be for no longer than reasonably necessary. Applying those criteria to the unchallenged findings of the trial judge about the violent nature of the demonstration, the necessity for containment to protect people and property, and the efforts to release non-demonstrators and to carry out a controlled dispersal, the House of Lords held that Article 5(1) was not engaged and dismissed the appeal.

Appeal dismissed. The House of Lords held that containment by a police cordon for crowd-control purposes does not necessarily amount to a deprivation of liberty under Article 5(1); the threshold depends on degree and intensity and is assessed by reference to all surrounding circumstances. Measures of crowd control fall outside Article 5(1) provided they are resorted to in good faith, are proportionate and are enforced no longer than reasonably necessary. On the unchallenged findings of the trial judge the Oxford Circus cordon met those criteria and therefore did not violate Article 5(1).

Trial: Tugendhat J dismissed claims ([2005] EWHC 480 (QB)). Court of Appeal dismissed the appeal but altered a factual finding about the police belief ([2007] EWCA Civ 989; [2008] QB 660). House of Lords dismissed the appeal ([2009] UKHL 5).