Hicks & Ors, R (on the application of) v Commissioner of Police of the Metropolis

Preventive arrest and detention may fall within article 5(1)(c) of the European Convention on Human Rights even though the person has not committed, and is not suspected of having committed, an offence. The arrest and detention must be reasonably considered necessary to prevent a concrete offence and must, from the outset, have the purpose of bringing the person before a competent legal authority if continued detention requires it.

Actual production before a court is unnecessary where the anticipated danger passes and the detainee is released before a court appearance becomes reasonably practicable. Domestic courts ordinarily follow clear and constant Strasbourg jurisprudence, but may make a real judicial choice where the Strasbourg authorities give mixed messages.

Before the Royal Wedding, police arrested four representative appellants in separate incidents to prevent anticipated breaches of the peace. They were detained for several hours and released after the wedding without charge or appearance before a magistrates’ court. The Divisional Court dismissed their judicial review claims in [2012] EWHC 1947 (Admin).

The lawfulness of the arrests and detention at common law was no longer challenged. The appeal concerned whether the deprivations of liberty were compatible with article 5(1)(c), or alternatively article 5(1)(b), of the European Convention on Human Rights. The central questions were whether preventive detention under article 5(1)(c) required suspicion of an offence already committed and whether the police acted with the purpose of bringing each appellant before a competent legal authority.

1. Appeals dismissed. Article 5(1)(c) contains three distinct categories. In every category, arrest or detention must be effected, from its outset, for the purpose of bringing the person before a competent legal authority. The Divisional Court had therefore erred by treating that requirement as inapplicable to preventive detention.

2. The preventive category is not confined to a person suspected of already having committed an offence or a punishable preparatory act. It permits arrest and detention reasonably considered necessary to prevent the commission of an offence, provided the competent-authority purpose exists. A contrary interpretation would effectively remove the preventive category from the provision.

3. The Strasbourg authorities did not establish a clear and constant rule confining article 5(1)(c) to detention connected with a criminal trial for an offence already committed. Ostendorf v Germany was neither a Grand Chamber decision nor consistent on that point with Lawless v Ireland (No 3), Brogan v United Kingdom, Steel v United Kingdom and Nicol and Selvanayagam v United Kingdom. The Court therefore declined to follow that part of Ostendorf and exercised the real judicial choice left by the mixed Strasbourg jurisprudence.

4. The Divisional Court had justifiably found reasonable grounds for believing that breaches of the peace were imminent. The arrests and detention were consequently reasonably considered necessary to prevent offences. Although none of the appellants appeared before a magistrate, actual production before a court was unnecessary. The officers necessarily appreciated that continued detention would soon require such an appearance. Had disorder continued, the appellants would have had to be brought before magistrates; instead, the danger passed and they were released before that became reasonably practicable. The competent-authority purpose was therefore established.

5. Remittal was unnecessary because the appeal proceeded on written evidence and the required inferences were permissible. The Court did not determine article 5(1)(b). Ostendorf indicated that provision might justify detention to secure a specific and concrete obligation to keep the peace, but the evidence had not addressed whether each appellant knew the specific prohibited act and demonstrated unwillingness to refrain from it.

1. Court of Appeal (Civil Division): The appeals were dismissed. The arrests and detention were lawful under article 5(1)(c) of the European Convention on Human Rights. The Court declined to remit the proceedings.

2. Divisional Court of the High Court: In [2012] EWHC 1947 (Admin), Richards LJ and Openshaw J dismissed the judicial review claims and held that the arrests and detention were compatible with article 5(1)(c).