Austin & Ors v United Kingdom  ECHR 459 (15 March 2012) Summary
In 2001, in the context of a demonstration in central London, up to 2000 people were contained within a police cordon (a measure known as "kettling") at Oxford Circus in London without access to food, water or toilets.
The Grand Chamber of the European Court of Human Rights held that this did not amount to a deprivation of liberty under Article 5(1) of the European Convention of Human Rights.
On 1 May 2001, in the context of a demonstration in central London, up to 2000 people were contained within a police cordon (a measure known as "kettling") at Oxford Circus. Four of those people (one being a protestor and the other three simply passers-by) complained that their restriction within the police cordon for up to seven hours (without access to food, water or toilets) amounted to a deprivation of liberty in breach of Article 5.
According to Article 5, no one shall be deprived of their liberty except in certain circumstances. Relevantly, the exceptions include: 5(b) lawful detention after conviction by a competent court; and 5(c) where the purpose is to bring the person before a competent legal authority on reasonable suspicion of having committed an offence or where it is reasonably considered necessary to prevent his or her committing an offence or fleeing after having done so.
The trial judge concluded that the cordon was lawful within the requirements of Article 5 and the applicants appealed this decision all the way to the Grand Chamber.
The majority of the Grand Chamber dismissed the application for the following reasons.
Article 5 is not concerned with mere restrictions of liberty of movement. Instead, to determine whether someone has been deprived of their right to liberty, it is necessary to take into account things like the type, duration, effects and manner of implementation of the restrictive measure. It is clear from case law that an underlying public interest motive, for example, protecting the community against a perceived threat from an individual has no bearing on whether that person has been deprived of their liberty, although it might be relevant to whether that right fell into one of the exceptions set out by Article 5.
However, the requirement to take into account the "type" and "manner of implementation" of the measure enables the Court to consider the specific context and circumstances surrounding the restriction.
In this case, the coercive nature of the containment within the cordon, its duration and its effects on the applicants in terms of physical discomfort and the inability to leave pointed towards a deprivation of liberty. However, looking at the "type" and "manner of implementation" of the measure, it was clear the measure was imposed to isolate and contain a large crowd in volatile and dangerous conditions. A cordon was the least intrusive and most effective means to be applied and in any event it was not contended by the applicants that those within the cordon were immediately deprived of their liberty.
Further, the majority of the Grand Chamber 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 as the police commenced planning a controlled release five minutes after the cordon was in place, but kept having to suspend the release due to violent behaviour from both inside and outside the cordon. Therefore, in circumstances where the police kept the situation constantly under close review and the dangerous conditions remained substantially the same, those within the cordon were not deprived of their liberty within the meaning of Article 5.
On this analysis, Article 5 was not engaged and as such it was unnecessary to consider whether the measure fell within the exceptions set out in Article 5.
It is interesting to note that the majority of Grand Chamber held that whether or not the applicants were protestors or passers-by was not relevant to the question of whether there was a deprivation of liberty.
Relevance to the Victorian Charter
This is a remarkable decision in that, as stated by the dissenting judges, "the paradox lies in the fact that … if there had been a deprivation of liberty, it would not have been possible for the police to justify it under the exceptions set out in sub-paragraphs (b) and (c) of Article 5".
That said, the Grand Chamber explicitly stated that measures of crowd control should not be used by state authorities to stifle or discourage protest given the fundamental importance of freedom of expression and assembly and the conclusion in this case was based on the specific and exceptional facts of this case.
The wording of the right to liberty and security of person found in section 21 of the Charter is different to the text of Article 5 of the Convention. Nonetheless, as this was the first time the Grand Chamber had considered the application of Article 5 in respect of "kettling" or containment of a group of people carried out by police on public order grounds, it helpfully sets out the general principles which guide the interpretation of the right to liberty and security and the analysis by both the majority and dissenting judges may be of use in section 21 cases.
The decision is available online at: http://www.bailii.org/eu/cases/ECHR/2012/459.html
Susanna Kirpichnikov is a lawyer with Lander & Rogers.