RECENT years have seen novel forms and targets of dissent and protest, which have become more newsworthy for that very reason. Recent years too have seen an increasing role for the courts, asked to adjudicate between competing claims – those of police and protesters, landowners and protesters, companies and protesters – in a way that has not tended to occur before. This is not surprising now that protesters can claim their human rights of free speech and of peaceful assembly (under Articles 10 and 11 of the ECHR) have been breached. For those interested in how law regulates protest, it has been rather like buses: nothing for ages, then several at once. One of those cases decided earlier this year, by the Grand Chamber of the European Court of Human Rights, is Austin v UK (2012) 55 E.H.R.R. 14, a decision that is likely to have profound effects on the exercise of those key democratic rights.

About 3,000 people were caught up in a two kilometre square police cordon for about seven hours at Oxford Circus during the mass rally against capitalism and globalisation in central London on May Day 2001. This was a strategy known colloquially as “kettling”. Many were innocent shoppers, students or those on business in the capital. The cordon was imposed at short notice in response to information, and past history, indicating that serious and violent disorder was likely. The conditions for those trapped quickly became unpleasant – and worsened during the afternoon and early evening. The applicant in the case, Lois Austin, was a demonstrator who continued to use a loudhailer to make speeches from within the cordon. There was no evidence that her conduct was anything but peaceful and lawful throughout. She brought proceedings claiming damages at common law for false imprisonment and under section 8 of the Human Rights Act1988 (“HRA”) for deprivation of liberty contrary to Article 5. She lost before all three domestic courts and so took her case to Strasbourg.

The only issue for the House of Lords ([2009] UKHL 5, [2009] 1 A.C. 564) was whether her containment in those conditions for that length of time constituted a deprivation of liberty so as to engage Article 5. Unanimously the House held it did not. This meant the government did not have to justify the containment by reference to any of the permitted purposes contained in Articles 5(1)(a)-(f). As Lord Hope put it, measures of crowd control undertaken in the interests of the community will fall outside Article 5 so long as they are not arbitrary: they must be resorted to in good faith, be proportionate and be enforced for no longer than is reasonably necessary. The result was met with considerable critical comment for a number of reasons (see e.g. D. Feldman [2009] C.L.J. 243 and D. Mead [2009] E.H.R.L.R. 376). First, importing the concept of proportionality into the question of whether or not Article 5 was engaged was without Strasbourg precedent (despite the House of Lords' assertion to the contrary). Secondly, it was a worrying portent for the right to protest peacefully. With “crowd control” legitimised, the police could deal with groups on suspicion of trouble coming from very few. It was hoped that the Strasbourg Court would welcome the opportunity to re-assert the assumed orthodoxy: that proportionality played a role only at a later stage, when it came to deciding whether any deprivation of liberty was arbitrary, and so unlawful. Instead, the Grand Chamber upheld the House of Lords' decision and, broadly, its approach.

The Chamber noted that this was the first time it had been asked to consider Article 5 in the context of public order policing, and containment more specifically. In doing so, it reiterated several principles (at [53–60]). Although the Convention was a living instrument, the Chamber could only work within its expressly recognised terms. The Chamber also stressed the positive duty a state might have to take preventive operational measures to protect individuals at risk of serious harm from another's criminal acts, taking account of the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices in terms of priorities and resources. The police should also be afforded a degree of discretion in taking what are almost always complicated operational decisions.

In terms of Article 5(1) itself, the starting point for determining whether someone had been deprived of their liberty must be their “concrete situation”, with account taken of a whole range of criteria such as the “type, duration, effects and manner and implementation of the measure in question”. The difference between deprivation of and a mere restriction upon liberty is one of degree or intensity, and not of nature or substance. These points, the Chamber noted, had also been emphasised by the House of Lords. While the Chamber then appeared to depart from the House – making it clear that “an underlying public interest motive… has no bearing on the question whether that person has been deprived of his liberty” (at [58]) – its emphasis on the whole context in which the supposed deprivation occurred, especially its type and manner, meant the result was much the same. Though the Chamber accepted that on the facts the coercive nature of the containment, its duration, and its physical effects all pointed towards a deprivation of liberty (at [64]), it still held that it would not constitute a deprivation where the police imposed a cordon as the least intrusive and most effective means “to isolate and contain a crowd, in volatile and dangerous conditions” (at [66]).

While the majority was keen to highlight the specific, exceptional facts, it is hard not to view the result as a rewriting of the scope of the Article 5 guarantee, something they stressed elsewhere was a fundamental human right. First, those traditional factors – type, duration, effects and manner – tend to be capable of objective determination or at least can be viewed from the perspective of the alleged detainee. Prior to Austin, nothing in the Court's case law indicates we should view deprivation through the state's eyes. Secondly, it surely stretches the meaning of “type” and “manner” to encompass “whole context” since by this approach “motive” is introduced circuitously. Thirdly, crucial in the Chamber's reasoning was the analogy drawn with other “commonly occurring restrictions on movement” (at [59]): containment of away fans after football matches or being forced to wait in a queue of cars after a motorway accident. These examples also informed the outcome in the House of Lords but do they stand up? Many football fans might in fact consider such forced segregation to be a deprivation of liberty. Alternatively, we might conceptualise the situation as one they had consented to simply by turning up, so common is the practice. Those in their cars stuck between two junctions after a pile-up are not being detained by the police; they are simply unable to continue unless they abandon their cars. Being prevented from moving is not down to a decision to contain but to the lack of an available exit route. None of that applies to those who are kettled unless, pace the consent point, it becomes so common!

There is much greater strength to the dissent of Judges Tulkens, Spielmann and Garlicki. They pointed out that in Gillan v UK (2010) 50 E.H.R.R 45, two years before, the European Court seemed firmly to be of the view (though it decided the case under Article 8) that a stop and search for no more thirty minutes could well be enough to constitute a deprivation of liberty. It is hard to see how Austin could be distinguished, given the clearly greater coercion and the protestors' feeling of being entirely deprived of the ability freely to move. The dissentients also highlight that reasoning based on context, proportionality and purpose is not limited to pressing cases of public order. It would apply to all detention and incarceration claims unless Austin were seen as factually distinct. This would leave the law as it stands even more opaque.

The scenario presented the Chamber with a stark choice in realpolitik, and the notion of subsidiarity very much pervades the judgment. If the holding had been that kettling was a deprivation of liberty, the police would have been very hard pushed to justify the tactic with reference to any of the permitted exceptions in Article 5(1): “Article 5 cannot be interpreted in such a way as to make it impracticable for the police to fulfill their duties of maintaining order and protecting the public, provided that they comply with the underlying principle of Article 5, which is to protect the individual from arbitrariness”: (at [54]).

Austin does not provide the police with a carte blanche to contain when it is no longer necessary in order to prevent serious injury or damage; the Court could not exclude “that the use of containment and crowd control techniques could, in particular circumstances, give rise to an unjustified deprivation of liberty in breach of Article 5(1)” (at [60]). That, however, provides little guidance for future development. Given the obvious chill on those wishing to protest, some better indicia (such as those set out by Lord Neuberger in the House of Lords at [57]) for national courts and police would have been of greater assistance.