Austin & Anor v Commissioner of Police of the Metropolis  UKHL 5 (28 January 2009) In this case, the House of Lords dismissed an appeal by a woman claiming that her right to liberty was breached as a result of police crowd control measures in central London.
The case represents the first time that European courts have examined the relationship between crowd control measures and potential rights infringements. Specifically, the judgement provides that where measures of crowd control are implemented for the purpose of preserving community safety, are in good faith, proportionate and enforced for no longer than necessary, they will not constitute a violation of the right to liberty under art 5(1) of the European Convention on Human Rights. More generally, the case supports a pragmatic approach to the question of rights violations, which takes full account of the particular circumstances even when dealing with fundamental or absolute rights.
On 1 May 2001 (May Day), the appellant joined a crowd of demonstrators in central London to protest against capitalism, globalisation and third world poverty. Similar protests had been held in previous years and had resulted in public disorder and some violence. Fearing a repeat incident, city police set up a cordon restricting the movement of the 3000-person crowd that had gathered to protest. Police informed the crowd that they were being cordoned off to prevent a breach of the peace and that they would be released as soon as practicable. In the end the crowd was confined for a period of 7 hours.
In 2002, the appellant brought proceedings against police arguing that as a result of the confinement her right to liberty under art 5(1) of the Convention had been breached. The trial judge held that although the effect of the police cordon constituted a deprivation of liberty under the meaning of art 5(1) the containment was justified as it was accepted that police reasonably believed that the demonstrators were likely to engage in some form of unlawful activity. This belief was based on provocative materials that demonstration organisers had distributed prior to the protest.
The woman appealed to the House of Lords.
Art 5(1) of the Convention begins by stating that everyone has 'the right to liberty and security of person.' It goes on to provide that no person shall be deprived of their liberty subject to six exceptions which include the lawful arrest or detention of a person where the detention proves necessary to prevent the commission of an offence (article 5(1)(c)).
In his leading judgement, Lord Hope of Craighead, noted that the list of exceptions in art 5(1) is 'exhaustive and to be narrowly interpreted.' Rather than determining whether the conduct of police in this instance constituted a lawful exception, the Court raised a more fundamental question of whether these circumstances in fact triggered the protection offered by art 5. While it was accepted that the appellant's movement had been restricted, the question was whether this also constituted an unlawful deprivation of liberty.
Relevant case law provides that the purpose of art 5(1) is to prevent 'arbitrary or unjustified deprivations of liberty.' Mindful of the purpose and absolutist nature of the right, Lord Hope adopted a pragmatic approach taking into account a range of factors including the nature, duration, effect and manner of the detention. In his reasoning his Lordship referred to three key factors that must be met if the detention is to be deemed lawful. Firstly, the measures of confinement must be taken in good faith. Secondly, they must be proportionate to the situation that has made the measures necessary, and finally, they must not be arbitrary. Where these criteria are met it is unlikely that an individual whose 'liberty' is restricted by crowd control measures will be able to successfully claim an infringement of art 5.
In determining whether the measures in this instance were proportionate and necessary some concern was expressed over the length of the confinement. Demonstrators were restricted by the police cordon for 7 hours and endured some discomfort. However, taking other factors into account including the threat of public unrest it was held that the mere fact that the period of constraint was unusually long was insufficient to invoke art 5.
Relevance to the Victorian Charter
The rights to liberty and security of person are contained in s 21 of the Charter. Application to the Charter would suggest that in similar circumstances crowd control measures will fall outside the application of s 21 if they are resorted to in good faith, are proportionate and are enforced for no longer than is reasonably necessary.
It could be argued that the situation in which the appellant found herself may amount to a breach of s 12 of the Charter which provides that a person has the right to move freely. However, it is important to note that this case does not examine the scope or substance of that right other than to affirm that the restriction of movement will not necessarily amount to a deprivation of liberty.
More broadly, the case favours a pragmatic and common sense approach in examining situations where breaches of fundamental rights are alleged. The judgment suggests that such an approach is necessary to preserve the integrity and purpose of the right. The case also illustrates the delicate balancing act that a Court must engage in where sets of rights compete. In this instance an individual's right to liberty was weighed against the right of the individual and community to be free from violence.
The decision is available at http://www.bailii.org/uk/cases/UKHL/2009/5.html.
Kristen Hilton is Executive Director of the Public Interest Law Clearing House (Vic)