Austin & Anor v Commissioner of Police of the Metropolis

Factual and Procedural Background

This is an appeal from an order made by Judge Tugendhat on 23 March 2005 dismissing an action brought by the appellants, Plaintiff One and Plaintiff Two, against the Commissioner of the Metropolitan Police arising out of events in Oxford Circus on May Day 2001. The claims were principally for damages at common law for false imprisonment and under section 7 of the Human Rights Act 1998 for breach of the appellants' rights to liberty guaranteed by article 5 of the European Convention on Human Rights.

The trial took place between 17 January and 4 February 2005, involving extensive oral evidence from the appellants, senior police officers, and experts, as well as review of 21 DVDs depicting the events. The judge’s detailed judgment analyzed the events in great detail. The appeal was granted with permission of the judge.

On May Day 2001, a large crowd of demonstrators gathered in Oxford Circus without prior notice or cooperation with the police, leading to the police imposing a cordon that prevented many from leaving for over seven hours. The appellants were among those detained within the cordon. The police response was prompted by intelligence predicting violence and disorder, and the deliberate lack of cooperation by the demonstration organizers.

The appellants claimed damages for false imprisonment and unlawful detention under article 5 of the Convention, asserting that their detention was unlawful because they were not released earlier despite requests. The judge rejected these claims, finding the police actions lawful under common law and the Human Rights Act.

Legal Issues Presented

1. Whether the police’s containment of the appellants within the cordon amounted to false imprisonment at common law, and if so, whether any defences applied.
2. Whether the police’s actions constituted a deprivation of liberty under article 5(1) of the European Convention on Human Rights.
3. If there was a deprivation of liberty, whether it was lawful under exceptions in article 5(1)(b) or (c).
4. The applicability and scope of police powers under the Public Order Act 1986 in relation to the containment.
5. The test and application of necessity and proportionality in restricting the liberty of innocent third parties to prevent an imminent breach of the peace.

Arguments of the Parties

Appellants' Arguments

• The appellants contended that their detention within the police cordon was unlawful false imprisonment because they were not suspected of any wrongdoing and should have been released upon request.
• They argued that the length of detention, exceeding seven hours, was excessive and that the police failed to adopt a reasonable release policy.
• They challenged the factual findings that all within the cordon appeared about to commit a breach of the peace.
• They also challenged the lawfulness of the police powers relied upon, including under the Public Order Act 1986.
• They maintained that the containment violated their rights under article 5 of the Convention as an unlawful deprivation of liberty.

Respondent's Arguments

• The respondent submitted that the police lawfully exercised their powers to prevent an imminent breach of the peace and that containment was necessary and proportionate in the exceptional circumstances.
• It was argued that although the appellants themselves were not suspected of wrongdoing, the police were entitled to contain all persons present to prevent violence by others.
• The respondent relied on the common law defence of necessity and the principles in the House of Lords decision in Laporte, which permits preventive action against innocent third parties in exceptional cases.
• The respondent also contended that the detention was lawful under article 5(1)(b) or (c) of the Convention, or that there was no deprivation of liberty within article 5.
• The respondent emphasized the unprecedented nature of the events, the scale of police deployment, and the lack of any practicable alternative release policy.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the common law tort of false imprisonment, acknowledging that the appellants’ liberty was interfered with but focusing on whether the interference was lawful. The respondent relied on three bases for lawfulness: breach of the peace powers, powers under the Public Order Act 1986, and necessity.

The court examined the principles established in the House of Lords decision in Laporte, which clarified that police powers to prevent breach of the peace require the breach to be imminent and that action must be necessary and proportionate. The court also considered the authority of O'Kelly v Harvey, which permits police to disperse lawful meetings when no other means exist to prevent breach of the peace, and the doctrine of necessity as a defence.

The court found that the police reasonably believed a breach of the peace was imminent and that the cordon was a proportionate and necessary response to prevent serious violence and injury. Although the appellants themselves were not suspected of intending to commit a breach, the police were entitled, in exceptional circumstances, to contain all present to prevent the breach by others. The court rejected the appellants’ argument that the police needed to suspect each individual specifically.

Regarding the Public Order Act 1986, the court found it unnecessary to resolve the statutory issues fully, noting concerns about the exercise and clarity of police powers under the Act in these circumstances.

On the issue of deprivation of liberty under article 5 of the Convention, the court distinguished between deprivation of liberty and restrictions on liberty of movement, emphasizing that the former requires a higher degree of confinement. The judge had found a deprivation from the time the cordon was imposed, but the court held this was an error in principle. The initial containment was not a deprivation of liberty but a restriction necessary for public order and safety.

The court concluded that, even if there were a deprivation of liberty later, it was lawful and proportionate given the risk of violence and the need to protect the crowd. The appellants’ rights under article 5 were not infringed.

The court also considered but did not decide on the applicability of article 5(1)(b) and (c) exceptions, leaving these questions for another case where necessary.

Finally, the court upheld the judge’s findings that the police acted reasonably and in good faith, that no alternative release policy was feasible, and that the appellants’ claims for damages should fail accordingly.

Holding and Implications

The court’s final decision is to DISMISS THE APPEAL.

The holding confirms that in exceptional circumstances, police may lawfully detain individuals within a cordon to prevent an imminent breach of the peace, even if those individuals are not themselves suspected of wrongdoing, provided the action is necessary and proportionate. The court clarified that initial containment of a large crowd for public order purposes does not necessarily amount to a deprivation of liberty under article 5 of the European Convention on Human Rights.

This decision upholds the common law principles as refined in Laporte and affirms the high threshold required before interference with liberty is unlawful. The court did not establish new precedent on the statutory powers under the Public Order Act 1986 but noted that further consideration of those provisions may be desirable. The ruling directly affects the parties by denying the appellants’ claims for false imprisonment and breach of article 5 rights but does not create broader binding authority beyond the application of established principles to these exceptional facts.