Protests in London on May Day 2001 threatened disorder, injuries and property damage. The police undertook a massive operation to contain about 3,000 people, many of whom were unconnected with the protests, in Oxford Circus in cold, wet weather to preserve the peace. The claimant in Austin v. Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 2 W.L.R. 372 was a peaceful protestor who had done nothing unlawful, but was prevented from leaving Oxford Circus between 2.20 and 9.30 p.m. She claimed damages for false imprisonment and violation of her right under Article 5(1) of the European Convention on Human Rights (“the Convention”) and section 6(1) of the Human Rights Act 1998 not to be deprived of her liberty. She failed before Tugendhat J. [2005] H.R.L.R. 647 and the Court of Appeal [2007] EWCA Civ 989, [2008] Q.B. 660, noted by A. T. H. Smith, [2008] C.L.J. 10, and appealed to the House of Lords on the Article 5 point.
The House upheld the view of the Court of Appeal that the containment had not amounted to a deprivation of liberty. Their Lordships relied heavily on three background ideas. First, the “search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights” is “inherent in the whole of the Convention” (Soering v. United Kingdom (1989) 11 E.H.R.R. 439, at [89]). Secondly, there is no bright-line rule for differentiating between a deprivation of liberty and a restriction on liberty. One must take account of a number of factors, including the type, duration, effects and manner of implementing the restraint (Guzzardi v. Italy (1980) 3 E.H.R.R. 333, at [92]). Thirdly, the purpose of Article 5 is to prevent arbitrary detention.
Unfortunately, the third consideration gave rise to a mistaken view that Article 5(1) guarantees only freedom from arbitrary deprivation of liberty. It does not. It guarantees freedom from deprivation of liberty, save in the specific circumstances listed in the Article, and even then only if the action is non-arbitrary.
This mistake led the House to conclude that the fact that the police intended to prevent violence and injury to people prevented the containment of innocent people for up to seven hours being a deprivation of their liberty. Lord Hope (with whom Lord Carswell and Lord Scott agreed) held that the importance of state authorities being able to take action to protect public safety, so long as the measures were not arbitrary, had been recognized in cases under several Articles. In the context of Article 5, he referred particularly to two.
In Nielsen v. Denmark (1988) 11 E.H.R.R. 175 the Strasbourg Court had held that a child could be committed to a closed ward in a psychiatric hospital at his mother's request without engaging Article 5. That decision is, as Lord Walker (at [45]) pointed out, questionable: it is generally regarded as one of the worst ever to have been delivered by that Court, and would not be followed now that the Court uses the UN Convention on the Rights of the Child (1989) to guide its application of the ECHR in cases involving children.
The other case was Saadi v. United Kingdom, App. No. 13229/03, judgment of 29 January 2008, where the Grand Chamber said that a detention which fell within one of the justifications in Article 5(1) would cease to be justifiable if it were arbitrary. This does not support his Lordship's argument. Arbitrariness makes unjustifiable that which would otherwise have been justifiable. Lack of arbitrariness does not justify behaviour which on its face falls outside the circumstances enumerated in Article 5 in which a deprivation of liberty is capable of being justified. If a deprivation is within one of those purposes, an improper purpose would deprive the police of their justification, as Lord Neuberger correctly observed (at [63]). Furthermore, a detainor's intention to stop a person from leaving an unlocked room may show that, contrary to appearance, that person has been deprived of liberty (HL v. United Kingdom (2004) E.H.R.R. 761). However, the detainor's purpose, as distinct from his intentions as to future action towards detainees, cannot affect whether actions have deprived detainees of liberty. It is relevant only to whether a deprivation of liberty can be justified, as Lord Walker pointed out (at [44]). In a concurrence which reads more like a dissent, his Lordship expressed caution (at [43]) about the view of Lord Hope (at [34]) that there is room for a pragmatic approach to fundamental rights which takes account of the circumstances of the individual case. Lord Walker was right. Fundamental rights and pragmatism often, as in this case, pull in opposite directions.
A desire to dismiss Ms. Austin's claim is understandable. The police were acting reasonably and carefully to protect people against a serious risk of imminent violence. But the limited exceptions to the right not to be deprived of liberty under Article 5(1) are not well drafted to deal with containment short of arrest for preventative purposes. (See similarly Secretary of State for the Home Department v. JJ [2007] UKHL 45, [2008] 1 A.C. 385, noted [2008] C.L.J. 4.) The mismatch between the sensible result and the terms of Article 5 made this a hard case; it produced bad law. One can easily imagine the argument from good intentions being applied in other contexts to reduce other fundamental and absolute rights almost to vanishing point. The road to hell is notoriously paved with good intentions. Pragmatically, the decision probably encouraged the police to use a more aggressive form of containment (the so-called “kettle” manoeuvre, with rolling charges steadily reducing the space available to protestors and passers-by) on protestors against the G20 summit meeting on Wednesday 1 April 2009, with disastrous results. The welcome advance of the rule of law and respect for rights achieved in public-order policing by R. (Laporte) v. Chief Constable of Gloucestershire Constabulary [2006] UKHL 55, [2007] 2 A.C. 105, noted by A. T. H. Smith, [2007] C.L.J. 253, is frighteningly fragile.
