Lois Austin and others v UK - a further nail in coffin of the right to protest

"Kettle" - London 2001

It is commonly said that, in English law, the individual is free to do whatever is not forbidden by law and that includes freedom to peacefully demonstrate or protest - see Peaceful Protest (Law and Lawyers December 2010) .  The European Convention on Human Rights goes beyond the traditional position of English law by giving specific rights such as the right to liberty, freedom of expression and freedom of assembly and association.  However, in relation to most Convention rights, there are permitted exceptions.  States do not have unfettered discretion as to how rights can be restricted.  For example, under Article 5, the right to liberty may only be restricted for one of the reasons set out in Article 5(1)(a) to (f) and the restriction must be prescribed by law.

The European Court of Human Rights at Strasbourg has handed down judgment in Austin v United Kingdom (15th March 2012).   Factually, the case goes back to 2001 and was the subject of the House of Lords decision in Austin v Metropolitan Police Commissioner [2009] UKHL 5.  This post examines the E Ct HR's majority decision and also the dissenting opinion of judges Françoise Tulkens, Dean Spielmann and Lech Garlicki.  The majority have, in practical terms, handed State authorities a powerful weapon to use in protest situations and this may prove to be a serious inroad into the ability of people to express their opposition to official policy by way of protest and demonstration.

Lois Amelia Austin and three other applicants complained that
their restriction within a police cordon (or "kettle") for up to seven hours during the course of a demonstration in central London amounted to a deprivation of their liberty in breach of Article 5(1) of the Convention.  On 1 May 2001, in the context of a demonstration in central London they were contained within a police cordon ("kettle") at Oxford Circus (the junction between Regent Street and Oxford Street). Austin was taking part in the protest but the others were passers-by caught up in the events,

It is probably fair to say that most people, particularly those caught by a "kettle" but who were not actual protesters, would consider that they had been deprived of their liberty if kept within the kettle for up to seven hours and if they could only leave with Police permission.  An attempt to exit the kettle without permission would have almost certainly resulted in arrest and a possible charge of Police obstruction which is an imprisonable offence.  This "layman's view" was not adopted by either the English Court of Appeal, House of Lords or the European Court of Human Rights.

In the English High Court, Tugendhat J found that there was a deprivation of liberty but that it was justifiable under Article 5(1)(c) - (arrest or detention in relation to suspected offences).  The Court of Appeal and the House of Lords held that there was no deprivation of liberty for the purposes of Article 5(1).  The European Court of Human Rights (E Ct HR), by a majority of 14 to 3, held that there was no deprivation of liberty.  Of course, if the finding is that there is no deprivation of liberty then the authorities have nothing to justify.  Conversely, had the courts held that there was a deprivation of liberty then justification is required and the only justifications are those within Article 5 itself.

An interesting feature of Article 5 is that it does not contain a specific public order exception.  The only exceptions are those in Art. 5(1) (a) to (f).  Article 5 therefore may be contrasted with other articles such as Arts. 10 (Freedom of Expression) or 11 (Freedom of Assembly or Association) which have an exception relating to prevention of disorder or crime.

The majority reasoning:

This was the first time that the E CT HR had considered Article 5(1) in respect of "kettling" or "cordoning" of the public on grounds of public order.  A number of principles were identified and then applied.

• The Convention is a living instrument - [para 53] - to be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today but this does not mean that to respond to present-day needs, conditions, views or standards the Court can create a new right apart from those recognised by the Convention or that it can whittle down an existing right or create a new “exception” or “justification” which is not expressly recognised in the Convention.

• The Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions 

• The E Ct HR noted that the U.K. had not ratified Protocol 4 which guarantees the right to liberty of movement.   Article 5 should not, in principle, be interpreted in such a way as to incorporate the requirements of Protocol No. 4 in respect of States which have not ratified it, including the United Kingdom. 

• The police must be afforded a degree of discretion in taking operational decisions. Such decisions are almost always complicated and the police, who have access to information and intelligence not available to the general public, will usually be in the best position to make them.  Even by 2001, advances in communications technology had made it possible to mobilise protesters rapidly and covertly on a hitherto unknown scale. Police forces in the Contracting States face new challenges, perhaps unforeseen when the Convention was drafted, and have developed new policing techniques to deal with them, including containment or “kettling”. Article 5 cannot be interpreted in such a way as to make it impracticable for the police to fulfil 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.

• Article 5(1) is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4.  To determine whether someone has been “deprived of his liberty” within the meaning of Article 5(1) the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance.

• an underlying public interest motive, for example to protect the community against a perceived threat emanating from an individual, has no bearing on the question whether that person has been deprived of his liberty, although it might be relevant to the subsequent inquiry whether the deprivation of liberty was justified under one of the subparagraphs of Article 5(1)

• the requirement to take account of the “type” and “manner of implementation” of the measure in question enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell.  The context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good. 

• As the judges in the Court of Appeal and House of Lords observed, members of the public generally accept that temporary restrictions may be placed on their freedom of movement in certain contexts, such as travel by public transport or on the motorway, or attendance at a football match.  The E Ct HR did not consider that such commonly occurring restrictions on movement, so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose, can properly be described as “deprivations of liberty” within the meaning of Article 5(1)

• Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty.   Subparagraphs (a)-(f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be compatible with Article 5(1) unless it falls within one of those grounds.  In some circumstances,  the use of containment and crowd control techniques could give rise to an unjustified deprivation of liberty in breach of Article 5(1). In each case, Article 5(1) must be interpreted in a manner which takes into account the specific context in which the techniques are deployed, as well as the responsibilities of the police to fulfil their duties of maintaining order and protecting the public, as they are required to do under both national and Convention law.

Application of the principles:

Whether there has been a deprivation of liberty is based on the particular facts of the case. The E Ct HR recalled that under the Convention, the court subsidiary to the national systems safeguarding human rights.  Subsidiarity is at the very basis of the Convention, stemming as it does from a joint reading of Articles 1 and 19.   Therefore, the court was to be cautious in relation to questions of fact.   As a general rule, where domestic proceedings have taken place, the E Ct HR does not substitute its own assessment of the facts for that of the domestic courts.  Though the E Ct HR is not bound by the findings of domestic courts and remains free to make its own appreciation in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts.  Observation:  This statement is particularly striking given the UK's recent emphasis on "subsidiarity" in the run up to the Brighton Conference.

Nonetheless, the court has to interpret and apply the Convention - (Articles 19 and 32) - while it must have reference to the domestic court’s findings of fact, it is not constrained by their legal conclusions as to whether or not there has been a deprivation of liberty within the meaning of Article 5(1)

The E CT Hr proceeded to adopt Tugendhat J’s judgment in relation to the facts and these are re-iterated at para. 62 of the judgment.   Observation:  This is hardly surprising given that Tugendhat J did a thorough job on the facts - see his judgment

Although there were differences between the applicants, in that the first applicant (Austin) was present in Oxford Circus as a demonstrator whereas the other applicants were passers-by, the Court does not consider that this difference is relevant to the question whether there was a deprivation of liberty.  (The minority disagreed with this).

The Court considered that the coercive nature of the containment within the cordon; its duration; and its effect on the applicants, in terms of physical discomfort and inability to leave Oxford Circus, pointed towards a deprivation of liberty.  However, the Court had to take into account the “type” and “manner of implementation” of the measure in question. Also, the context in which the measure was imposed was significant.  The measure was imposed to isolate and contain a large crowd, in volatile and dangerous conditions.  The police decided to make use of a measure of containment to control the crowd, rather than having resort to more robust methods, which might have given rise to a greater risk of injury to people within the crowd.  The E Ct HR agreed with Tugendhat J that the police had no alternative but to impose an absolute cordon if they were to avert a real risk of serious injury or damage and that this was the least intrusive and most effective means to be applied. 

Moreover, again on the basis of the facts found by the trial judge, the Court was unable to identify a moment when the measure changed from what was, at most, a restriction on freedom of movement, to a deprivation of liberty.   The Police made various attempts to release people from the "kettle" and kept the situation under review.  Some of their attempts were obviated by violent demonstrators.

Given that the police kept the situation constantly under close review, but where substantially the same dangerous conditions which necessitated the imposition of the cordon at 2 p.m. continued to exist throughout the afternoon and early evening, the Court did not consider that those within the cordon can be said to have been deprived of their liberty within the meaning of Article 5(1).  Since there was no deprivation of liberty, it is unnecessary for the Court to examine whether the measure in question was justified in accordance with subparagraphs (b) or (c) of Article 5(1).

Finally, the majority emphasised that their conclusion was based on the specific and exceptional facts of the case.   Also, the application did not include any complaint under Articles 10 or 11 of the Convention and the Court notes the first instance judge’s finding that there had been no interference with the Article 10 and 11 rights of freedom of expression and assembly of those contained within the cordon.  Observation:  It remains to be seen whether this attempt to limit the scope of the case will succeed in the future.

Measures of crowd control should not be used by the national authorities directly or indirectly to stifle or discourage protest, given the fundamental importance of freedom of expression and assembly in all democratic societies. Had it not remained necessary for the police to impose and maintain the cordon in order to prevent serious injury or damage, the “type” of the measure would have been different, and its coercive and restrictive nature might have been sufficient to bring it within Article 5.  Observation: It will always be possible to argue that a measure was needed to prevent serious injury or damage.

The Dissenting View:

The dissenting opinion is interesting and well probably ring true with many people.  For the minority, there was a deprivation of liberty.  Salient points in the dissent are:

• The majority’s position could be interpreted as implying that if it is necessary to impose a coercive and restrictive measure for a legitimate public-interest purpose, the measure does not amount to a deprivation of liberty. This is a new proposition which was eminently questionable and objectionable.  

• The wording of Article 5 in itself strikes the fair balance inherent in the Convention between the public interest and the individual right to liberty by expressly limiting the purposes which a deprivation of liberty may legitimately pursue.  

• In A and Others v. the United Kingdom (19 February 2009), the E Ct HR  did not accept the argument that Article 5(1) permitted a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat.   That argument was inconsistent not only with the Court’s jurisprudence under sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee”.

• The majority had suggested that Art 5(1) had to be interpreted taking into account the specific context in which a measure was applied as well as the responsibilities of the Police to fulfil their duties of maintaining order and protecting the public - (para 60 of the judgment).   The minority considered this gace the authorities carte blanche.  It sent out a bad message to police authorities.

• The majority point out that “in certain well-defined circumstances, Articles 2 and 3 may imply positive obligations on the authorities to take preventive operational measures to protect individuals at risk of serious harm” (see paragraph 55 of the judgment).   However, positive obligations of this kind had to be also fully compatible with Art 5 as recently held in  Jendrowiak v. Germany (14 April 2011).

• In the present case, the paradox lies in the fact that, as rightly noted by Lord Hope and Lord Neuberger, if there had been a deprivation of liberty, it would not have been possible for the police to justify it under the exceptions provided for in Article 5 § 1, sub-paragraphs (b) and (c).

• The minority was well aware that maintaining order is a difficult task, although in the present case it was not disputed that the 6,000 police officers deployed were the most experienced in England. As the domestic courts’ analysis indicates, it appears that the police prioritised effectiveness in their operation and opted for the most practical means of dealing with the situation by keeping everyone inside the cordon. This measure was thus applied indiscriminately and was also imposed against people taking no part in the demonstration. In this regard, the police could have been expected to apply less intrusive means. As it was, it seems that all people who happened to be at Oxford Circus at around 2 p.m. were treated like objects and were forced to remain there as long as the police had not solved other problems around the city.

• The majority said that the fact that some in the kettle had been passers by was not relevant (Judgment para 63).  The minority disagreed.  Active participants in a demonstration that is not entirely peaceful should be aware that their freedom of movement may be restricted because of the need for police measures.  Whatever the position regarding participants, the situation was completely different regarding the other three applicants, who were at the scene by chance and had no intention of taking part in the demonstration. They could reasonably have expected that, by following police instructions, they would not be subjected to measures aimed at controlling a crowd of hostile demonstrators.

• The majority considered itself unable to identify a moment when the measure of a restriction on freedom of movement changed into to a deprivation of liberty (paragraph 67 of the judgment). It was unclear what this observation means. Did it mean that there was no deprivation of liberty before 9.30 p.m. or that the situation became a deprivation of liberty between 2 and 9.30 p.m. but the precise moment cannot be pinpointed? In the latter event, the majority should not be able to conclude so categorically that those within the cordon cannot be said to have been deprived of their liberty within the meaning of Article 5(1). In a situation of uncertainty, the presumption is normally in favour of respect for individual rights.

• Lastly, the Grand Chamber made no reference whatsoever to the Gillan and Quinton v. the United Kingdom (12 January 2010).  The main focus of Gillan was Article 8 of the Convention but Article 5 was also involved, precisely in the context of a demonstration. The interpretation of Article 5 in Gillan and Quinton was much broader than in the present case since the Court found that a coercive restriction on freedom of movement amounted to deprivation of liberty within the meaning of Article 5(1).  In Gillan, the length of time during which each applicant was stopped and searched did not in ase exceed 30 minutes but, during this period, the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 § 1.  The degree of coercion in the present case was much higher than in Gillan and Quinton.

• In the present case, the applicants were confined within a relatively small area, together with some 3,000 other people, and their freedom of movement was greatly reduced; they were only able to stand up or sit on the ground and had no access to toilet facilities, food or water. The cordon was maintained through the presence of hundreds of riot police officers and the applicants were entirely dependent on the police officers’ decisions as to when they could leave. Furthermore, the police could use force to keep the cordon in place, and refusal to comply with their instructions and restrictions was punishable by a prison sentence and could lead to arrest. All the applicants were contained in those conditions for six to seven hours.  The minority therefore held that there was a deprivation of liberty within the meaning of Article 5 of the Convention and that there has been a violation of that Article in the present case.

Occupy LX at St Pauls

Summary:

On its face, Art 5 grants a right not to be deprived of liberty except in the situations specified in Art 5(1) and such exceptions must be prescribed by law.  The courts have now held that, even in the circumstances of this highly restrictive kettle, there was no deprivation of liberty.  It is arguable that the E Ct HR has therefore created via the backdoor a public order exception to Art 5 and the court itself said that it could not create exceptions which are not expressly within Art 5.  For all that the E Ct HR professed the contrary, Art 5 may have been rendered very ineffective in future protest/demonstration situations.  This is because it will usually be relatively easy for the authorities to argue that containment was necessary and that, on the basis of Austin, those involved had not been deprived of their liberty.

The authorities now appear to have, in practice even if not in legal theory, a carte blanche to apply containment ("kettling") and this may prove to be a very serious inroad on the ability of people to protest or demonstrate.  After all, the possibility of being "kettled" for several hours is likely to deter many.

Was the E Ct HR influenced by the current Strasbourg-sceptic rhetoric from London?  This cannot be said with any certainty.  However, it is interesting to note how the court emphasized the living instrument doctrine and stated that "subsidiarity" was at the heart of the convention.  Furthermore, wide discretion was to be given to the Police.  Such statements may be seen as designed to address some of the UK government's criticisms of how the court has operated.   Also, the court's decision in Austin is not entirely easy to reconcile with its decision in Gillan and Quinton where it was held that detention for 30 minutes amounted to deprivation of liberty given that there was an element of coercion.

I detect a certain irony in all of this.  The 2001 protests were about large multi-national corporations exercising massive power and influence with little regulation by governments.  This has echoes with the banking situation which developed by 2008 and the aftermath of that will linger for decades to come.  The Occupy LSX protest in the winter of 2011-12 also highlighted public concerns with matters such as social injustice, corporate greed and the influence of corporate activity on government.  Perhaps if governments had listened a little more to those protesting in 2001, some of the ensuing problems might have been avoidable.

Note:

The OccupyLSX protest took the form of people staying in tents outside St Paul's Cathedral, London.  This took place over some 4 months in the winter of 2011-12.  Eviction of the protesters took place at the end of February 2012 (The Guardian).  The High Court ordered their removal in The Mayor, Commonality and Citizens of the City of London v Tammy Samede and Persons Unknown [2012] EWHC 34 (QB) - Lindblom J.  This case concerned the limits to the right of lawful assembly and protest on the highway? Did those limits extend to the indefinite occupation of highway land by an encampment of protestors who said this form of protest was essential to the exercise of their rights under Articles 10 and 11 of the European Convention on Human Rights.

Other Posts and Commentaries:

UK Constitutional Law Group - "The right to protest contained by Strasbourg: an analysis of Austin v UK and the constitutional pluralist issues it throws up" - by David Mead, Senior Lecturer in Law, UEA Law School.

Doughty Street Chambers - "Strasbourg backs police 'kettling' in exceptional circumstances"

Solicitors Journal 15th March - "May Day kettling victim was not deprived of liberty, Strasbourg says."

ECHR Blog - Guest post by Antoine Buyse - "Austin and others Grand Chamber judgment on kettling"