Austin (FC) (Appellant) & another v Commissioner of Police of the Metropolis (Respondent)

Whether a restriction amounts to deprivation of liberty under article 5(1) of the European Convention on Human Rights depends on its degree and intensity, assessed in its full context rather than by duration alone.

Police crowd-control measures adopted solely to protect people and property fall outside article 5(1) where they are imposed in good faith, are proportionate to the circumstances and continue for no longer than reasonably necessary. Their purpose may therefore inform whether the article applies, although benign intentions cannot justify confinement which has already crossed the threshold into deprivation of liberty. A lengthy cordon does not cross that threshold merely because of its duration where its continuation remains necessary and non-arbitrary.

The appellant attended a May Day demonstration at Oxford Circus. The police imposed an unplanned cordon after a large crowd arrived amid an anticipated risk of serious violence. She was unable to leave for nearly seven hours, although the police permitted individual releases and repeatedly attempted to begin a controlled dispersal.

Tugendhat J dismissed claims for false imprisonment and breach of article 5(1) of the European Convention on Human Rights: [2005] EWHC 480 (QB); [2005] HRLR 647. The Court of Appeal dismissed the appeal, while rejecting the judge's conclusion that the police reasonably believed every person inside the cordon was about to breach the peace: [2007] EWCA Civ 989; [2008] QB 660.

The sole issue before the House was whether the police containment constituted an unlawful deprivation of liberty under article 5(1). The common-law lawfulness of the police action otherwise depended on the answer to that question.

1. Disposition. The House of Lords unanimously dismissed the appeal. Lord Hope delivered the leading speech. Lord Walker and Lord Carswell expressly agreed with him; Lord Scott agreed with the reasons of Lord Hope and Lord Neuberger; and Lord Neuberger agreed with Lord Hope's opinion.

2. The article 5 threshold. Per Lord Hope, deprivation of liberty differs from a restriction on movement by degree and intensity. The assessment must consider the individual's concrete situation and the type, duration, effects, manner of implementation and context of the measure. Comparison with the paradigm of close physical confinement is helpful. Duration is relevant but is not independently decisive. Article 5(1) protects physical liberty and is not concerned with every restriction on movement.

3. Purpose and crowd control. Per Lord Hope, the scope of article 5(1) permits a pragmatic assessment of all the circumstances. The purpose of a non-paradigm restriction may be relevant when reconciling individual liberty with the protection of life, safety and public order. Crowd-control measures undertaken in the community's interests do not engage article 5(1) where they are imposed in good faith, are proportionate to the situation and continue for no longer than reasonably necessary. These safeguards preserve the fundamental prohibition against arbitrary detention.

4. Application. The cordon was imposed solely to prevent personal injury and damage to property. It was necessary because of the conduct of violent demonstrators, and the appellant's inclusion could not practicably be avoided. The police sought to disperse the crowd and maintained the cordon only while safe release remained impracticable. The restriction therefore satisfied the requirements of good faith, proportionality and reasonable duration. Its length, although concerning, did not by itself convert the measure into a deprivation of liberty.

5. Qualification and exceptions. Lord Walker, in remarks expressly endorsed by Lord Hope, cautioned that purpose ordinarily concerns justification after the threshold has been crossed. Good intentions cannot cure a failure to satisfy one of the strictly construed exceptions in article 5(1)(a)–(f). The House found it unnecessary to decide whether paragraphs (b) or (c) could justify crowd containment. Lord Neuberger separately considered that they could not have done so.

1. House of Lords: The appeal in Austin (FC) (Appellant) & another v Commissioner of Police of the Metropolis (Respondent) was dismissed unanimously: [2009] UKHL 5.
2. Court of Appeal: The appellant's appeal was dismissed: [2007] EWCA Civ 989; [2008] QB 660. The court held that article 5(1) was not engaged and that, in the exceptional circumstances, the police action was lawful at common law. It rejected the finding that the police reasonably believed everyone within the cordon was about to breach the peace.
3. High Court: Tugendhat J dismissed the claims for false imprisonment and breach of article 5(1): [2005] EWHC 480 (QB); [2005] HRLR 647. He found a deprivation of liberty after the full cordon was established but regarded it as justified under article 5(1)(c).