R v Commissioner of Police for the Metropolis

Article 5.1(c) of the European Convention on Human Rights permits short preventive detention where the police reasonably consider it necessary to prevent an imminent offence. If the risk passes before the detainee can practicably be brought before a court, the requirement that detention be for that purpose is implicitly conditional on the cause for detention continuing long enough.

Early release is compatible with article 5 where the detention is lawful, undertaken in good faith, proportionate, free from arbitrariness and open to subsequent judicial challenge. Article 5 must protect individual liberty without making it impracticable for the police to maintain public order and protect the public.

Four protestors were arrested during the royal wedding policing operation because officers reasonably believed that arrest was necessary to prevent imminent breaches of the peace. They were released without charge once the perceived risk had passed, after periods ranging from about two and a half to five and a half hours.

The Administrative Court, [2012] EWHC 1947 (Admin), found the arrests lawful under domestic law and article 5.1(c) of the European Convention on Human Rights. The Court of Appeal, [2014] EWCA Civ 3, upheld that conclusion, although it inferred a conditional purpose to bring the appellants before a court if longer detention became necessary.

The issue in the Supreme Court was whether purely preventive detention followed by release before a court appearance was compatible with article 5.1(c), and alternatively whether it could be justified under article 5.1(b).

1. Disposition. The appeals were dismissed unanimously. Lord Toulson, with whom Lord Mance, Lord Reed, Lord Carnwath and Lord Dyson agreed, held that the arrests and detention were lawful under article 5.1(c) of the European Convention on Human Rights.
2. The fundamental principle underlying article 5 is protection from arbitrary detention, of which timely judicial control is an essential part. Article 5 must also remain workable in practice. It should not be interpreted so as to make it impracticable for the police to maintain public order and protect the lives and property of others. These requirements are complementary, and their reconciliation calls for a realistic and proportionate assessment of all the circumstances.
3. The decisions to arrest, detain and release the appellants were made in good faith and were proportionate. The officers reasonably considered short detention necessary to prevent imminent violence. It would severely hamper effective policing at mass events if such detention were unlawful merely because the anticipated risk would probably pass before a court appearance became practicable.
4. Article 5.1(c) naturally covers arrest or detention reasonably considered necessary to prevent the commission of an offence. The Strasbourg authorities did not establish a clear and settled contrary rule. The majority approach in Ostendorf v Germany, which confined that provision to pre-trial detention of someone already suspected of an offence, collapsed its preventive limb into its first limb and was inconsistent with the reasoning in Lawless v Ireland (No 3).
5. The words requiring a purpose of bringing the detainee before the competent legal authority are implicitly conditional upon the cause for detention continuing long enough for that to be practicable. Where preventive detention ends early because the risk has passed, article 5 is satisfied if its lawfulness can subsequently be challenged and decided by a court. The Court therefore preferred the reasoning of the minority in Ostendorf to the Court of Appeal's inference of a contingent purpose existing from the outset, although either approach produced the same result.
6. As to article 5.1(b), Lord Toulson was inclined to agree with the minority in Ostendorf that an obligation prescribed by law must be more specific than the general obligation not to commit an offence or breach of the peace. Focusing on particular circumstances or giving a reminder does not make that general obligation sufficiently specific. This alternative ground was unnecessary to the decision.

1. United Kingdom Supreme Court: By [2017] UKSC 9, unanimously dismissed the appeals and upheld the lawfulness of the preventive detention under article 5.1(c) of the European Convention on Human Rights.
2. Court of Appeal: By [2014] EWCA Civ 3, upheld the result below. It inferred that the police had a contingent purpose to bring the appellants before a court if continued detention made that necessary.
3. Administrative Court: By [2012] EWHC 1947 (Admin), rejected the challenge to the policing operation and the individual arrests. It held that the arrests were lawful under domestic law and article 5.1(c).