Austin & Anor v Commissioner of Police of the Metropolis

This is an appeal from an order made by Tugendhat J on 23 March 2005 dismissing an action brought by the appellants, Ms Austin and Mr Saxby, 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 (‘the HRA’) for breach of the appellants’ rights to liberty guaranteed by article 5 of the European Convention on Human Rights (‘the Convention’). The appeal is brought with the permission of the judge.

The trial of the action took place between 17 January and 4 February 2005. The judge heard a considerable amount of oral evidence and examined a large number of documents. The oral evidence took more than nine days and included the evidence of both appellants, of nine senior police officers and of two experts. In addition the judge watched 21 DVDs which showed the events both of May Day 2001 and of similar previous occasions.

The judge’s judgment, [2005] EWHC 480 (QB), which was produced with commendable speed, is a tour de force. It runs to nearly 150 closely typed pages and to 608 paragraphs. It analyses the events of 1 May 2001 in very considerable detail. It would be quite impossible for us to do the same in this judgment. What we say here should therefore be considered in the light of the judge’s judgment as a whole, to which the reader is referred for the details of what occurred.

Between the decision of the judge and the hearing of this appeal the House of Lords delivered its decision in R (Laporte) v Chief Constable of Gloucester Constabulary [2006] UKHL 55, [2007] 2 AC 105, which contains important guidance on the common law powers and duties of both the police and members of the public in order to prevent an anticipated breach of the peace.

The judgment is divided into a number of sections, from which we extract only those parts necessary for our decision, without in any way intending to distort the overall picture given by the judge or implying that the parties accept all the factual findings which are not expressly addressed. Section 1 contains a summary in [1] to [11]. At about 2 pm on May Day 2001, which was not a Bank Holiday, a crowd of demonstrators marched into Oxford Circus from Regent Street South. Later others entered or tried to enter from all points of the compass so that by the end of the day there were about 3000 people in Oxford Circus. In addition there were crowds of thousands to the north of Oxford Street and on the west side of Oxford Street itself. The police had information that a demonstration was planned but the organisers had deliberately given no notice of what would happen at 2 pm. They had refused to co-operate with the police at all. Their publicity material led the police to expect a gathering in Oxford Circus at 4 pm. No warning had been given of any march or procession or of the route which demonstrators might take. It was this deliberate lack of co-operation by the organisers, which was unlawful, that led to the police responding as they did, and to everything that happened from 2 pm onwards. The appellants were not organisers but they and many others suffered the consequences.

The crowd who entered the Circus at 2 pm were, for the most part, prevented from leaving. Others entered Oxford Circus during the afternoon. From about 2.20 pm no-one was allowed to leave except with the permission of the police. Many were prevented from leaving for a period of over seven hours. A number of people who were not demonstrators were caught up within the police cordon, although some were allowed through.

The disruption to shops, shoppers and traffic by the events on that day was enormous. It was a wet and chilly afternoon. Oxford Circus has a diameter of about 50 metres, all of which is taken up by roads, pavements, and the four entrances to the Underground. There is no free space for people to congregate. The physical conditions in Oxford Circus were for a short period quite acceptable but as time passed the conditions became increasingly unacceptable. In particular, in the absence of toilets, people had to relieve themselves in the street in public. This and other problems bore particularly hard on some of the women. Fortunately no-one was seriously hurt but some of those attending came very close to sustaining injury and some policemen were injured.

Neither appellant alleged that he or she was injured. Ms Austin had an 11 month old baby whom she needed to collect from the child minder at 4.40 pm. It is likely that in such a large crowd there will have been other women with commitments such as hers. Such a situation is a serious interference with human dignity. As the judge put it at [7], the point the appellants made was that the place was so unsuitable for holding a crowd that they should have been released before the problems became intolerable. The judge recognised at [8] that the fact that such events should take place in London, involving thousands of people unable to leave the police cordons, was a matter of public concern. At [11] the judge described the facts of this case as being quite exceptional. Never before, or since, 1 May 2001 have the police in England formed cordons enclosing a crowd of thousands before a substantial breakdown of law and order has occurred, with the result that the crowd were prevented from leaving for many hours.

The judge summarised the claims in [12-17]. The appellants are two of some 150 people who have given notice of or commenced claims arising out of the events on 1 May 2001. The appellants claim damages for distress and also both aggravated and exemplary damages. Ms Austin had come to London to take part in the demonstration. Until about 3.30 pm she made speeches through a megaphone on political topics and thereafter, while she was unable to leave Oxford Circus, she made speeches through her megaphone giving advice and comfort to the crowd around her: [13]. By contrast, Mr Saxby came to London on his employer’s business, not to demonstrate, and found himself caught up in the events of the day: [12]. Both were detained within the cordons for many hours. They do not now complain so much about the initial cordon and consequent detention but complain that they were unlawfully deprived of their liberty, detained and unlawfully imprisoned by not being released much earlier than they were. Mr Starmer submits in particular that when each presented himself or herself to a police officer on the cordon and asked to leave, each should have been allowed to do so.

It is important to note that, although the judge did not find either Ms Austin or Mr Saxby to be an entirely satisfactory witness, there is no suggestion that either of them acted other than lawfully throughout. The respondent accepted that neither of them was violent or threatened violence or breached the peace or threatened to do so. Ms Austin was exercising her right to demonstrate peacefully and Mr Saxby was innocently caught up in the events. Each wanted to leave the cordon but was not permitted to do so for a long period. After their requests to leave had been refused by individual police officers, neither made any attempt to break through the police cordon. We should perhaps note in passing that we do not know whether any or all the other people who have made or intimated claims were acting lawfully throughout; they may or may not have been.

As already indicated, the appellants’ claims are put at common law in the tort of false imprisonment and under section 7 of the HRA for alleged unlawful detention contrary to their rights under article 5 of the Convention. The judge rejected their claims under both heads. Mr Starmer QC submits on their behalf that he was wrong to do so. Before considering the facts found by the judge and the extent to which his findings are challenged, it is appropriate to consider the relevant legal principles. We agree with the submission of Mr Pannick QC on behalf of the respondent that it is appropriate to consider first the position at common law, and especially the defences to the tort of false imprisonment and the reasoning of the House of Lords in Laporte. We note in passing that before the judge Ms Austin (but not Mr Saxby) also asserted a breach of her rights under articles 10 and 11 of the Convention but that part of her case was rejected by the judge at [598-608] and there is no appeal in that regard.

It is not, and could not be, in dispute that there was an interference with the liberty of the appellants which amounted to the tort of false imprisonment unless it was lawful. The respondent’s case is that the interference was lawful on one or more of three bases: by reason of what Mr Pannick calls breach of the peace powers, pursuant to powers conferred by the Public Order Act 1986 (‘the 1986 Act’) or pursuant to the doctrine of necessity. It is convenient to consider first breach of the peace and secondly the defence of necessity to the tort of false imprisonment. We will consider the legal principles and then the relevant facts under these heads before turning to the 1986 Act. Although it will be appropriate to touch upon some aspects of the Strasbourg jurisprudence in the context of our discussion of the position at common law, it nevertheless seems to us that the most convenient and appropriate course is to leave a consideration of the position under article 5 of the Convention until the final part of the judgment.

Before considering the legal principles discussed in Laporte, we should briefly refer to the facts, although what follows is not intended to be a substitute for the more detailed account given by Lord Bingham at [2-17]. The claimant, Jane Laporte, was a peace protester, who was a passenger on a bus going to a demonstration at an RAF base at Fairford in Gloucestershire. She was one of about 120 passengers on three buses travelling together. The police had intelligence that there were likely to be some violent protesters on the buses, including some members of a group called the Wombles. However, it was at no time suggested that the claimant was such a person or that she would or might act in a violent way or otherwise than peacefully. The police were concerned that, if they permitted the bus to reach Fairford, there would be a serious risk of violence. The chief constable had not however exercised his power under section 13 of the 1986 Act to prohibit the ‘procession’: [8].

The police stopped the buses at Lechlade, which was some 5 kilometres by road and 2 kilometres across the fields from the air base. The buses were searched and various articles were found and seized: [11]. Eight members of the Wombles were identified. Chief Superintendent Lambert, who was the officer in charge of the operation, decided that the buses and their passengers (except for three people who were to speak at the demonstration) should not be allowed to proceed to Fairford but should be escorted back to London. The passengers were not allowed off the buses before they reached London: [12].

The reasons given by Mr Lambert for his decision are set out at [13]. In the light of the intelligence and what was found on the buses, he concluded that a breach of the peace would have occurred at RAF Fairford and arrests made on the basis that a breach of the peace would then have been ‘imminent’. Although he said that he could not discount the potential risk that some peaceful protesters were caught up in the decision not to allow the buses to proceed, it was not possible to be certain who was intent on direct action and who was not.

Both the Divisional Court and this court (of which I was a member) distinguished between arrest and action short of arrest and held that the police acted lawfully in not allowing the protesters to proceed to the demonstration but unlawfully in detaining them by sending them back on the bus to London: see the quotations from the judgments of both courts quoted by Lord Bingham at [15] and [16]. Both sides appealed to the House of Lords. The claimant’s appeal succeeded but the chief constable’s cross-appeal failed. The basis upon which the claimant’s appeal was allowed was that no distinction could be drawn between a decision to arrest and a decision short of arrest and that neither arrest nor the action taken in refusing to permit the claimant to proceed to the demonstration could be justified unless a breach of the peace was ‘imminent’, at the time of the refusal, which on Mr Lambert’s own account it was not.

In Laporte at [29] Lord Bingham identified three situations of possible relevance as follows:

“Every constable, and also every citizen, enjoys the power and is subject to a duty to seek to prevent, by arrest or other action short of arrest, any breach of the peace occurring in his presence, or any breach of the peace which (having occurred) is likely to be renewed, or any breach of the peace which is about to occur. This appeal is only concerned with the third of these situations.”

Lord Bingham observed that the relevant principle was that stated in Albert v Lavin [1982] AC 546, from which the House had not been invited to depart. At [31] Lord Bingham noted that at page 565 Lord Diplock, with whom the other members of the House agreed, stated the true principle as being:

“that every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although, except in the case of a citizen who is a constable, it is a duty of imperfect obligation."

The issue before the House in Laporte was what was meant by “about to be”. The House held unanimously that the expression “about to be” was to be equated with imminent or on the point of happening: see per Lord Bingham at [39-51], Lord Rodger at [62] and [66], Lord Carswell at [101], Lord Brown at [110] and [113-115] and Lord Mance at [141]. The House rejected the somewhat looser approach of both the Divisional Court and of this court. In doing so, as already stated, it also rejected the proposition, which had found favour in the courts below, that action short of arrest may be taken to prevent a breach of the peace which is not sufficiently imminent to justify arrest: see eg per Lord Bingham at [49] and Lord Rodger at [64-66].

In all the circumstances we accept Mr Pannick’s submission that a threshold test of imminence must be passed before action may be taken to prevent a breach of the peace and that once the test of imminence is passed, action which is both reasonably necessary and proportionate to prevent a breach of the peace may be taken: per Lord Bingham at [39-40] and [46-49], Lord Rodger at [62], Lord Carswell at [101], Lord Brown at [114] and Lord Mance at [141].

The view of imminence taken by the House of Lords was enough to decide the appeal. However, some members of the appellate committee proceeded to consider a question which did not arise for decision in that case. That question was put by Lord Brown at [119] in this way:

“This brings me to the other question which, had your Lordships taken a different view of whether the police at Lechlade could reasonably have regarded a breach of the peace as already then imminent, would have needed to be addressed: the question as to the circumstances in which the police may take preventive action against persons other than those committing or reasonably apprehended of being about to commit a breach of the peace. Because it does not arise directly I shall touch on it comparatively briefly.”

At [143] Lord Mance posed the question whether and to what extent the police may take preventive action against anyone other than persons committing or reasonably apprehended as being about to commit a breach of the peace.

As appears below, the judge in the instant case held that the cordon was lawfully imposed on all those present, including the appellants, because the apprehended breach of the peace was imminent and because the police reasonably suspected that everyone, including the appellants, was about to commit a breach of the peace in the exceptional circumstances of the case. On that basis, the further question considered in Laporte does not arise here. However, the appellants challenge the judge’s conclusions of fact on this point and it seems to us that we should consider the relevant legal principles on the footing that the judge was wrong so to hold.

Mr Pannick submits that in Laporte, although not all of those who considered the question put the principle in quite the same way, it was accepted that in exceptional circumstances, if there is no other way of preventing an imminent breach of the peace, action can be taken against a person who does not himself or herself reasonably appear to threaten an imminent breach of the peace. The judge was therefore wrong to suggest at [520] that the police need to have a reasonable suspicion that each person against whom action is taken poses a threat to the peace. Mr Pannick accepts of course that the judge did not have the benefit of the reasoning of their Lordships because Laporte had not then been decided in the House of Lords.

Mr Pannick relies upon the statements of Lord Rodger at [82-5], Lord Brown at [119], [123-4] and [127-8] and Lord Mance at [147-9]. He also submits that at [98-101] Lord Carswell recognised the legitimacy of taking action against innocent third parties where there is no other way of preventing a breach of the peace. Mr Pannick submits that the reasoning of their Lordships is based, in particular, on three matters. They are the reasoning of the Court of Appeal in Ireland in O’Kelly v Harvey (1883) 14 LR Ir 105 (‘O’Kelly’), the common law offence of refusing to aid a constable and the approach of the European court of Human Rights (‘the ECtHR’). As we see it, the central reasoning was that in O’Kelly.

In short the facts of O’Kelly were these. We take them from Lord Rodger’s account of them at [79]. The plaintiff, a nationalist Member of Parliament, sued the defendant for assault and battery. The incident arose out of a meeting which was to be held on 7 December 1880. The previous day a placard appeared summoning local Orangemen to assemble and oppose the meeting. The defendant, who was a justice of the peace for the district, was present at the meeting. According to his pleadings, which are referred to at 10 LR Ir 285 at pages 287-289, he knew of the placard and believed on reasonable and probable grounds that the only way of preventing a breach of the peace when the Orangemen arrived was to order the meeting to separate and disperse. The defendant asked the plaintiff and the other persons who were assembled to disperse and, when they failed to do so, he laid his hand on the plaintiff in order to disperse the meeting. On a demurrer the Court of Appeal in Ireland held that, if made out, these averments would constitute a sufficient defence to the action for assault and battery.

Law C explained the position in this way in a passage quoted by Lord Rodger and reported at 14 LR Ir 105 at pages 109-110:

“The question then seems to be reduced to this: assuming the plaintiff and others assembled with him to be doing nothing unlawful, but yet that there were reasonable grounds for the defendant believing, as he did, that there would be a breach of the peace if they continued so assembled, and that there was no other way in which the breach of the peace could be avoided but by stopping and dispersing the plaintiff's meeting - was the defendant justified in taking the necessary steps to stop and disperse it? In my opinion he was so justified, under the peculiar circumstances stated in the defence, and which for the present must be taken as admitted to be there truly stated. Under such circumstances the defendant was not to defer action until a breach of the peace had actually been committed. His paramount duty was to preserve the peace unbroken, and that, by whatever means were available for the purpose. Furthermore, the duty of a justice of the peace being to preserve the peace unbroken he is, of course, entitled and in part bound, to intervene the moment he has reasonable apprehensions of a breach of the peace being imminent; and therefore, he must in such cases necessarily act on his own reasonable and bona fide belief, as to what is likely to occur. Accordingly in the present case, even assuming that the danger to the public peace arose altogether from the threatened attack of another body on the plaintiff and his friends, still if the defendant believed and had just grounds for believing that the peace could only be preserved by withdrawing the plaintiff and his friends from the attack with which they were threatened, it was, I think, the duty of the defendant to take that course."

He added, at page 112:

"I assume here that the plaintiff's meeting was not unlawful. But the question still remains - was not the defendant justified in separating and dispersing it if he had reasonable ground for his belief that by no other possible means could he perform his duty of preserving the public peace. For the reasons already given, I think he was so justified, and therefore that the defence in question is good...."

That analysis played an important part in the reasoning of Lord Rodger, Lord Brown and Lord Mance in Laporte. We take them in turn. Lord Rodger expressed the view that preventive action may be taken against innocent third parties on two bases. First, at [82] he cited O’Kelly as authority for the proposition that:

“… where it is necessary in order to prevent a breach of the peace, at common law police officers can take action . . . which affects people who are not themselves going to be actively involved in the breach.”

Support for the proposition that it is necessity which forms the basis of the justification to take such steps, and therefore brings those steps within the ambit of what it is reasonable for the police to do in the face of an imminent breach of the peace, can be found in Beatty v Gillbanks (1882) 9 QBD 308, which Lord Rodger cited in these terms at [80], without referring to the case by name:

“What does need to be stressed, however, is that, as Dicey, An Introduction to the Study of the Law of the Constitution (10th ed by E C S Wade, 1959), pp 278-279, emphasised, using the familiar example of the Salvationists and the Skeleton Army:

“the only justification for preventing the Salvationists from exercising their legal rights is the necessity of the case. If the peace can be preserved, not by breaking up an otherwise lawful meeting, but by arresting the wrongdoers - in this case the Skeleton Army - the magistrates or constables are bound, it is submitted, to arrest the wrongdoers and to protect the Salvationists in the exercise of their lawful rights".

The inference from that passage is that, if the peace cannot be preserved by arresting the wrongdoers (or presumably those imminently about to be wrongdoers), it is or may be the duty of a constable to break up a lawful meeting.

Lord Rodger’s second point, which is again put on the basis that to prevent an imminent breach of the peace is necessary, is put thus at [82 and 83]:

“82.

Here, of course, the claimant and those like her were not going to take any part in any breach of the peace. Nor was their conduct likely to lead to one. But, as O'Kelly v Harvey shows, where it is necessary in order to prevent a breach of the peace, at common law police officers can take action (in that case dispersing a meeting) which affects people who are not themselves going to be actively involved in the breach. ….

83.

On the same principle, where they need to do so in order, say, to reach the scene of an imminent breach of the peace, police officers must be able to clear a path through a crowd of innocent bystanders. Indeed, where necessary, a police officer is entitled to go further and call on any able-bodied bystanders for their active assistance in suppressing a breach of the peace. If without any lawful excuse, they refuse to give it, they are guilty of an offence. See Archbold, Criminal Pleading Evidence and Practice 2006, para 19-277. The law proceeds on the basis that "it is no unimportant matter that the Queen's subjects should assist the officers of the law, when duly required to do so, in preserving the public peace": R v Brown (1841) C & Mar 314, 318 per Alderson B. In the eyes of the law therefore innocent bystanders caught up in a breach of the peace are to be regarded as potential allies of the police officers who are trying to suppress the violence.”

These considerations led Lord Rodger to the conclusion stated in [84]:

“84.

In the light of these authorities I would reject Mr Emmerson QC's submission that there has to be a causal nexus between the persons affected by any measure taken by the police and the potential breach of the peace. In some circumstances a requirement of that kind would make it impossible for police officers to discharge their primary duty to preserve the peace. In a case like the present, therefore, provided that there was no other way of preventing an imminent breach of the peace, under the common law a police officer could stop a coachload of protesters from proceeding further, even although those on board included entirely peaceful protesters. The proviso is, however, vital.”

Lord Brown addressed the issue in some detail at [119-129]. His analysis and conclusions can we think be summarised in this way:

Lord Mance too considered the question in some detail, at [147-151]. We do not read his [144-146] as considering the question with which we are concerned. He identified our problem (or something close to it) at [147] as follows:

“… Some authorities suggest a principle whereby, if it is the only way to prevent a third party (A) causing a breach of the peace, a police officer (or justice of the peace) may request another person (B) to desist from entirely lawful and innocent conduct, and, if B refuses to desist, may physically restrain B or charge B with wilfully obstructing the police officer (or justice of the peace) in the execution of her or his duty. Obstruction may consist in persisting in conduct of a positive nature which is, taken by itself, entirely lawful: cf eg Dibble v Ingleton [1972] 1 QB 480. Perhaps the requisite duty may be found in the general duty of the police and justices to prevent a breach of the peace, and, in the consideration that, if the only way that a police officer has of avoiding a breach of the peace by A is to enlist the assistance of B by asking B to desist from otherwise entirely lawful and innocent conduct, then B as a citizen comes under a duty to afford that assistance when sought. There is practical attraction in such a principle.”

Since it was not necessary in Laporte to express a final view on the question whether such a principle exists, either at common law or under the Convention, Lord Mance did not do so but in [148] said that, if it does, it must be confined to rare situations where the only way to avoid a reasonably apprehended and imminent breach of the peace being caused by others is to restrict the freedom of assembly and expression of entirely innocent people, which he defined as those not apprehended to be about to start a breach of the peace themselves or to cause one by interfering with the rights or liberties of, or provoking, others. He referred to O’Kelly and emphasized, as Lord Rodger and Lord Brown had done, that it was there held that the assault or battery was justified if the justice of the peace “had reasonable ground for his belief that by no other possible means could he perform his duty of preserving the public peace”. (Lord Mance’s underlining).

Lord Carswell referred to O’Kelly without disapproval but, as we read his speech, he did not express an opinion on the question identified by Lord Brown and quoted above.

As we read the speeches of Lord Rodger and Lord Brown they give some support for the following propositions:

While it cannot we think be said that Lord Mance expressly supports those propositions, they seem to us to be consistent with his views. They are not inconsistent with the speech of Lord Carswell and Lord Bingham did not address these questions at all.

Those propositions are principally derived from the approach of their Lordships to O’Kelly but we should refer to the other two matters referred to above which played some part in their reasoning. The first is the principle referred to by Lord Rodger at [83], which we have already quoted, that it is in some circumstances an offence at common law to refuse to respond to a request for assistance by the police to suppress a breach (or presumably imminent) breach of the peace. As we see it, essentially the same tests of necessity must be satisfied as in the propositions set out above. This principle is thus consistent with those propositions.

The second is the references made to the Convention. In Laporte the focus, at any rate in the case of the claimant’s appeal, was upon articles 10 and 11, which of course confer freedom of expression and freedom of assembly and association respectively. In part of Lord Rodger’s speech at [82] which we omitted from the quotation set out above he referred to the procedure in section 13 of the 1986 Act and added this:

“A prior authorisation procedure for public meetings is in keeping with the requirements of article 11, if only so that the authorities may be in a position to ensure the peaceful nature of the meetings: Ziliberberg v Moldova, admissibility decision, European Court, Fourth Section, 4 May 2004, unreported. By contrast, a peaceful protester does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of a demonstration: Ziliberberg v Moldova and Ezelin v France (1991) 14 EHRR 362, 375, para 34 of the Commission's decision.

Lord Brown also referred to the 1986 Act and to the Ziliberberg case at [130], where he noted that the exercise of powers conferred by section 13 would have the effect of thwarting the rights of those intent only on peaceful protest. He added that the police enjoy wide powers under section 12 which he would expect Strasbourg to sanction. Lord Brown also said this about article 11 in the part of [127] to which we did not refer earlier, immediately after posing the question whether the approach in Kelly would be lawful today and before expressing the conclusion that it would, subject to his two provisos:

“I can find little in the Strasbourg jurisprudence—which, as I have explained in para 121 above, sanctions the concept of breach of the peace on the express basis that its scope has been clarified by recent decisions—to support it. On the other hand, both article 10 and article 11 provide in terms in sub-clause 2 for interference with the protective rights if this is "necessary" "for the prevention of disorder or crime".

Thus Lord Brown’s view was that the test of necessity upon which he placed so much emphasis ensured that the principle in O’Kelly, which is reflected in the five propositions which we have tried to distil from the reasoning in Laporte, was consistent with the freedoms expressed in articles 10 and 11 of the Convention. We will return separately below to the principles enshrined in article 5.

Lord Mance too referred to the Strasbourg jurisprudence. Indeed, his analysis of the issues in the appeal began with a consideration of article 11 and the relevant cases: see [135-137]. On the existence or otherwise of the principle which, as we said earlier, he identified at [147], after referring in [148] to O’Kelly, as described above, he said this with regard to the Convention:

“149.

As to the European Convention on Human Rights, Mr Pannick QC pointed out that the European Commission and Court have accepted the legitimacy of general statutory restrictions on demonstrations in the form of a public procession, where necessary to avoid a breach of the peace: see Christians against Racism and Fascism v United Kingdom (1980) 21 DR 138 and Ziliberberg v Moldova (Application No 61821/00, decision of 4 May 2004). So the general statements in Ezelin (cf paragraph 144 above) may by parity of reasoning be subject to a similar qualification which would permit preventive action against an innocent person where it was reasonably apprehended that there was no other possible means of avoiding an imminent breach of the peace. On that assumption, a principle permitting such action in such a case would also appear to be sufficiently clear and certain to be considered as "prescribed by law". But the European Court has at all times also stressed the importance of the rights of freedom of assembly and expression and that states have positive obligations to take steps to facilitate their exercise (cf para 136 above). So, wherever possible, the focus of preventive action should, on any view, be on those about to act disruptively, not on innocent parties.”

The reference in [149] to the decision in Ezelin was to a reference in [144] to Ezelin v France, to which Lord Rodger had referred in [82]. The part of [144] to which Lord Mance referred in [149] was in these terms:

“144.

As to the first point, preventive action may on any view be taken by a policeman or other citizen against the person reasonably apprehended to be committing or about to commit the breach of peace: see paragraph 138 above. As to action against others, in Ezelin v France (1991) 14 EHRR 362 the Commission, at para 34, considered that

“generally speaking, an individual does not cease to enjoy the right to freedom of peaceful assembly simply because sporadic violence or other punishable acts take place in the course of the assembly, if he himself remains peaceful in his intentions and behaviour."

The Court said, at para 53:

“The Court considers, however, that the freedom to take part in a peaceful assembly - in this instance a demonstration that had not been prohibited - is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion".

The “first point” referred to in [144] was whether and to what extent the police may take preventive action against anyone other than persons committing or reasonably apprehended as being about to commit a breach of the peace.

Reading [144] and [149] together, it seems to us that Lord Mance recognised the general approach of the ECtHR as protecting the rights of peaceful demonstrators described in [144] but subject to permitting preventive action against an innocent person where it was reasonably apprehended that there was no other possible means of avoiding an imminent breach of the peace. We should perhaps add that the decision in Ziliberberg was recently followed by the Divisional Court, comprising Waller LJ and Lloyd Jones J, in Blum v DPP [2006] EWHC 3209 (Admin).

In these circumstances we read Lord Rodger, Lord Brown and Lord Mance as being of the view that the approach identified in the five propositions set out above is not inconsistent with the Strasbourg jurisprudence. They are in our opinion consistent with it. Moreover, provided that it is recognised, as their Lordships each did, that the primary focus should be on the wrongdoers and not innocent demonstrators or those who are not demonstrators but are present by chance, and that, save in a case of absolute necessity, the right of freedom of expression under article 10 and the freedom of assembly and association under article 11 must be protected, the propositions seem to us to represent a fair and reasonable balance between the interests of all those involved.

Mr Starmer submits, however, that the House of Lords was not considering the facts of a case like the instant case at all and is thus of no assistance. In particular, their Lordships did not have in mind the kind of coercive measures that were taken in this case. We accept that the House was not focusing on the application of principles of this kind to facts such as those found by the judge here. The facts were indeed quite different and their Lordships all considered that, on any view of the relevant legal principles, the police were not entitled to curtail the claimant’s rights under article 11. Moreover, in so far as the refusal to allow the bus to continue to Fairford was concerned, Laporte was not treated as a case of false imprisonment. It had been so treated in so far as the bus was sent back to London without anyone being allowed off, but the House of Lords did not consider that part of the case separately because it was accepted that, if the claimant’s appeal succeeded, the cross-appeal was bound to fail. It is therefore fair to say that their Lordships were not specifically considering either the tort of false imprisonment or article 5 of the Convention.

Nevertheless, notwithstanding the differences between the facts of Laporte and those of the instant case, we do not accept Mr Starmer’s submission that the speeches are of no assistance here. On the contrary, they seem to us to point the way forward.

Mr Pannick relies upon the principles in Laporte in two ways. First, he submits that the judge concluded at [523-4] (and was entitled to conclude) that it reasonably appeared to the police that all those within the cordon (including the appellants) were demonstrators who appeared to be about to commit a breach of the peace. He submits that in these circumstances the refusal to allow them to leave the cordon, except in the context of the release of all those within it, was necessary and proportionate and that their detention within it was accordingly necessary and lawful and did not amount to the tort of false imprisonment.

Secondly, and in the alternative, Mr Pannick submits that the actions of the police were a lawful response to a threatened breach of the peace because, even if the appellants did not personally appear to be about to commit a breach of the peace, the police were entitled in the exceptional circumstances of the case to take necessary and proportionate action against them by containing them within the cordon because, on the findings of fact made by the judge, that was the only way in which violent disorder, and the substantial risk of death or serious injury could be avoided. In short Mr Pannick submits that the propositions summarised above can be made good on the facts.

Before considering the facts, we should consider Mr Pannick’s submission that, even if what he calls the police’s breach of the peace powers (which we have been considering at some length) do not afford the respondent a defence, necessity is recognised as a defence to the tort of false imprisonment, and on the judge’s findings of fact, it was necessary for the police to take the action they did. He relies upon [49-55] and [575-578].

We accept that necessity can provide a defence to the tort of false imprisonment: see eg R v Bournewood Mental Health Trust ex parte L (‘Re L’) [1999] 1 AC 458, per Lord Goff at 488H and 490B-F. The test of necessity is undoubtedly a high one but, as we see it, the problem faced by the respondent here is this. If the police’s breach of the peace powers are sufficient to afford the respondent a defence, he does not need this separate point. Given the part played by necessity in connection with those powers, we cannot at present see how the respondent could fail in the context of those powers but nevertheless succeed on the basis that he has a separate defence of necessity. It seems to us that the respondent can only succeed if he can show that it was necessary to take action to prevent a breach of the peace in the context of his breach of the peace powers. Put another way, as we see it, the relevant tests of necessity in this context are to be found in the five propositions summarised in [35] above.

We therefore turn to the relevant findings of fact and, first to the key findings of fact relied upon by Mr Pannick on behalf of the respondent.

Both in the respondent’s revised skeleton argument and in the oral argument on his behalf Mr Pannick stresses these features of the judge’s findings:

We return below to the key issues between the parties on the facts or the interpretation of the facts but, as we read it, the summary of the facts found by the judge which was produced on behalf of the appellants for the purposes of the appeal is not markedly different from that set out above. The summary does, however, refer to aspects of the findings which are less critical of the organisers, as for example that the police assessment was that they were organising a peaceful protest but that there would be several hundred who had no part in the planning who would attend for opportunistic violence: [199]. Although the police were not aware of a plan to gather in Oxford Circus at 2 pm, they did have a good deal of information including the fact that there was expected to be a final gathering in Oxford Circus, which the police had prepared for by putting a speaker system in place as from noon: [264]. There was, however, no announcement to the crowd over the public address system before 4 pm: [388].

The appellants’ summary also stresses that no directions were given by Silver Commander to implement sections 12 to 14 of the 1986 Act and that he authorised the use of section 60 of the Criminal Justice and Public Order Act 1994 (‘the 1994 Act’), which gives officers power to stop and search for offensive weapons or dangerous instruments. Although Silver Commander had not decided in advance that he would contain a crowd at Oxford Circus, he said that he would order containment if there was an anticipated breach of the peace: [300]. The decision to contain the crowd at Oxford Circus was made at 2 pm by creating impermeable barriers across the four exits. The decision was made on the stated basis that Mr French had grounds to believe that the public would be subjected to violence and that there would be widespread criminality and damage. He relied on intelligence before the event and the behaviour of protesters during the morning, together with previous behaviour and criminality of protesters at similar events and the obvious fear of the public: [299]. His main reason for taking action was the behaviour of similar crowds on previous occasions, followed by intelligence, including in particular the Special Branch assessment of likely violence and disorder: [302].

The summary quotes the definition of containment in the amended defence as being shorthand for the tactic of placing a police cordon around large numbers of protesters in order to prevent the crowd causing serious violence and/or disorder. When the first announcement was made to the public at 4 pm, they were told that they were being contained to prevent a breach of the peace. Bronze Commander accepted that the announcement could have been made sooner, at 3.15 pm: [372].

The summary further stresses that officers were instructed to release those who were obviously not protesters: [521]. It also stresses the requests made by each of the appellants for release, although not before 3 pm, to officers on the cordon. As the respondent’s summary accepts, Ms Austin sought release on the ground that she had a young 11 month old baby to collect and Mr Saxby on the ground that he was not a protester. Both requests were refused, although between 200 and 400 people were released following individual requests: [356-8, 487-9 and 554-561].

The first way in which the respondent’s case is put under this head is to invite the answer ‘Yes’ to this question. It is not we think in dispute that throughout the relevant period the police reasonably thought that a breach of the peace was imminent. In any event, the judge so held and he was plainly right to do so if the question is asked by reference to elements in the crowd.

The question to be asked under this head is not, however, whether a breach of the peace was about to be committed by elements in the crowd but whether it was about to be committed by the appellants. There was no evidence as to the state of the mind of the police with regard to the appellants. As the judge said, this is not surprising: [518]. At [520] he referred to a submission made on behalf of the respondent that, if the police have no way of knowing who in a large group is presenting the threat, then they can detain everyone who happens to be present at the scene. He correctly rejected that submission on the basis that it must be too wide.

Having so held, he expressed the view that, if the question whether it appeared to the officers detaining each appellant that each appellant was about to commit a breach of the peace was not answered in the affirmative in a way that encompassed each appellant, then the case against the appellants based on powers to prevent a breach of the peace must fail: [520]. The judge then said at [521]:

“521.

The nearest Ch Supt Allison comes to the point is in his witness statement where he says:

“I spoke to all the Chief Inspectors to ensure, amongst other things, those not involved in the demonstrations were being allowed out of the cordon. The importance of this activity had been recognised throughout the planning process for this operation and built on the lessons learnt when we had used this tactic in the past. The Chief Inspectors indicated that this was being done. I fully accept that this was a very difficult task and required the officers to make on the spot judgments. I was not asking officers to differentiate between violent and non-violent protesters but asking them to identify for release those individuals who obviously and clearly had nothing to do with the demonstration. Such individuals would have been at Oxford Circus by chance when the containment was put in place and so became caught up in it.”

The judge does not give a time for this but Mr Allison’s witness statement suggests that it was between about 2.30 and 3.40 pm. It is clear from that evidence that the police were aware that there were those in the crowd who were not demonstrators.

The judge discussed the evidence of the police witnesses and expressed his conclusions in some detail: [521-530]. It was not their evidence that they suspected every member of the crowd of being someone who would commit the breach of the peace which they thought likely to occur. The judge however accepted the evidence that the police thought that individuals might be peaceful at one time but threaten or provoke violence at another: [524-5]. The judge held at [526] that the position could be similar to that which applies in cases where only one person is suspected of having committed an offence, but the police suspect that any of a number of persons who had the opportunity to commit it might be the guilty one. The police are not prevented from arresting more than one suspect. They may arrest all the suspects, assuming that other necessary conditions are fulfilled. He said that an alternative way of putting the case for the police might be that Chief Superintendent Allison and others were applying the right test and considered that all those who appeared to be demonstrators satisfied it: [528].

He expressed his conclusion thus in [529]:

“529.

In the end, and with considerable hesitation, I infer and find that, subject to personal matters which might have arisen for consideration when each Claimant came forward and asked to be released, it did appear to the police (that is the police did suspect) that all those present within the cordon, including each Claimant, were demonstrators, and that in the particular circumstances of this case, that meant that they also appeared to the police to be about to commit that breach of the peace.”

Mr Starmer submits that that conclusion was wrong, both on the facts and in law. We agree. First, it is inconsistent with the judge’s account of Mr Allison’s evidence quoted at [521] and set out above because that shows that the police recognised that not everyone in the crowd was a demonstrator. Secondly, it seems to us to be plain that the judge was not holding that the police thought that a breach of the peace on the part of all those present was imminent when they imposed the cordon. The highest it could be put was that the police could not say who was likely to cause a breach of the peace and who was not. The police were aware that there were those in the crowd who would not cause a breach of the peace. Some, like Mr Saxby, were not even there to demonstrate. The problem facing the police was that they did not know who they were. In these circumstances it is in our opinion wrong to say that everyone in the crowd was a suspect. Some were not. In these circumstances we do not think that the police would have been entitled to arrest everyone, whether a suspect or not.

For these reasons we reject Mr Pannick’s submissions under this head and answer the question whether these appellants appeared to be about to commit a breach of the peace in the negative. As we see it, the key to this case lies in the answer to the next question.

The judge held that the answer to this question was ‘No’. He did so on the basis to which we have already referred, namely that, unless the question whether a particular appellant was about to commit a breach of the peace was answered in the affirmative, the case against that appellant based on powers to prevent a breach of the peace must fail: [520].

Mr Pannick nevertheless invites an affirmative answer to this question. He does so on the basis of the obiter reasoning in Laporte discussed above, which was not of course available to the judge. He submits that on the judge’s findings of fact a breach of the peace was reasonably thought by the police to be imminent, that the police had taken all the steps which they possibly could to avoid a breach of the peace by those likely to cause it by arrest or other action directed at them and that, in all the circumstances, if a breach of the peace was to be avoided, there was no alternative but to contain everyone within a police cordon. As to release, no alternative strategy was possible, or indeed suggested, other than that adopted by the police and, in these circumstances, the containment of some innocent people such as the appellants was inevitable and lawful in accordance with the principles discussed earlier and summarised at [35] above. In short, Mr Pannick submits that, on the findings of fact made by the judge, the situation was wholly exceptional and that the police had no alternative but to do what they did in order to avoid the imminent risk of serious violence, with its consequent risk of serious injury and perhaps death, quite apart from damage to property.

Mr Pannick thus submits that on the facts found by the judge this was an example of the kind of case referred to by Law C in O’Kelly. In order to avoid an imminent breach of the peace by others, the police had no alternative but to ask all those in Oxford Circus to remain inside the police cordon, which they did first by imposing the cordon and then by informing them that that was the position. They had no alternative but to treat all those present in the same way. If anyone had refused to comply with their directions, the police would have been entitled to arrest him or her.

In response Mr Starmer submits that the majority of people were neither committing a breach of the peace nor threatening to do so and were peaceful throughout. He further submits that the length of the containment of over seven hours was excessive and that the appellants could and should have been released much earlier than they were. As we see it, the difficulty with this submission is that the judge held that containment was necessary because there was no means by which the serious risk of serious injury could have been avoided, other than by the imposition of the cordon and the release policy subsequently adopted by the police. As to the latter, the judge found that it was not practicable for the police to release the crowd collectively earlier than they did and there was no release policy which could and should have been adopted other than that described above, especially given the lack of opportunity which the police had had to formulate a plan: [543 and [552], read with [521-8] and [347]-[351]. As already stated, none was formulated or put to the officers at the trial: [344].

While we see the force of the points made by Mr Starmer, especially his point that the containment of the crowd for hours without any or any sufficient toilet facilities and in many cases without food or drink was intolerable, with consequent risk to the health and safety of innocent members of the public, and we can well understand that being in Oxford Circus for so long without any idea when one would be released would have been very unpleasant, we see no realistic alternative but to accept Mr Pannick’s submission in response. It is that the judge properly held that the police could not reasonably have foreseen what happened or that it would have been necessary to have contained people for so long. The judge held that the police took action to avoid or minimise the risk of crushing: [371 and [376].

For these reasons, we conclude that in this very exceptional case, on the basis of the judge’s finding that what the police did in containing the crowd was necessary in order to avoid an imminent breach of the peace, the actions of the police were lawful at common law in accordance with the principles discussed above. On that basis, we answer the question whether the containment was lawful in the affirmative, even though the police did not reasonably suspect that the individual appellants were about to commit a breach of the peace. In our judgment that was the case, both when the cordon was imposed at about 2.20 pm and throughout the time the cordon was maintained. On the judge’s findings of fact, the conditions of necessity remained throughout because no-one had or has suggested an alternative release policy.

As to the release of individuals, the policy itself, which was to leave it to the discretion of individual police officers to decide whether a particular individual (in the words of Chief Superintendent Allison quoted above) obviously and clearly had nothing to do with the demonstration was rational, indeed sensible. On the judge’s findings of fact the police were faced with an unprecedented situation and we accept the submission that it was not practical to give the individual officer a wider discretion: see [348-351]. In short, in the particular circumstances of 1 May 2001, it was necessary to adopt the policy in fact adopted.

There was some debate in the course of the argument as to the incidence of the burden of proof. It was in our view for the police to show that it was necessary to adopt the policy which they did but, once that was established (as in our opinion it was), it was for each appellant to show that the individual police officer acted unreasonably in a Wednesbury sense in refusing to release him or her. That approach seems to be to be consistent with the approach of this court in a similar (but admittedly not identical) context in Al Fayed v Commissioner of Police for the Metropolis [2004] EWCA Civ 1579, per Auld LJ, with whom Tuckey LJ and Jackson J agreed, at [42] and [83].

On the facts relating to these appellants there is no reason to think that the individual police officers acted other than in good faith and reasonably in a Wednesbury sense. The judge spelled out the evidence of both Ms Austin and Mr Saxby in some detail: [424-462] and [474-497]. As those accounts show, although the judge accepted much of their evidence he did not find that either appellant was entirely credible. As to Ms Austin, although there is no evidence that Ms Austin acted violently at any stage, the judge held that she played an active part in the demonstration and that the refusal to release her was not unreasonable or irrational, whether applying an ordinary or heightened Wednesbury test: see the judge’s detailed analysis of her evidence and his conclusions at [424-462] and [471-3] and at [553-559] respectively. As to Mr Saxby, there were good reasons to include those in the same position as Mr Saxby in the cordon: [541-2] and there is no basis for concluding that thereafter the police behaved unreasonably or irrationally in refusing to release him on an individual basis.

These were essentially matters for the judge, who had the great advantage of hearing and considering a great volume of evidence, and it would in our opinion be wrong for this court to interfere with his conclusions in this regard. Based on the reasoning in Laporte, we answer the question posed in this section by holding that, on the facts found, although the appellants themselves did not appear to be about to commit a breach of the peace, their containment was lawful because it was necessary to prevent an imminent breach of the peace by others.

It follows that we would dismiss the appeal in so far as it rests on the tort of false imprisonment. It also follows that it is unnecessary to consider the question whether the respondent’s actions were unlawful under the 1986 Act. Those conclusions are, however, subject to the appellants’ case under article 5 of the Convention.

In these circumstances it is unnecessary to say much about the 1986 Act. The judge set out or referred to its relevant provisions, notably sections 11 to 14, at [86-87]. Because it is not necessary to resolve any of the issues between the parties under these sections we do not think that it is necessary to set out the statutory provisions in this already lengthy judgment. We only refer to the Act at all for two reasons. The first is that we are concerned that, if we do not, it may be thought that we would have reached the same conclusion as the judge and the second is to highlight the fact that, at any rate as it seems to us, the exceptional circumstances of this case suggest that sections 12 to 14 of the 1986 Act require further consideration and perhaps amendment for the future.

The respondent’s reliance upon the 1986 Act had a curious history. The police did not purport to rely upon any of its provisions at the time. Moreover, no reliance was placed upon the Act in the defence or indeed at the trial until the judge invited submissions to be made on the police powers under section 11 to 14. None of the officers present had claimed to be acting under them: [88].

The judge nevertheless held that the respondent could rely upon sections 12 and 14 of the Act, even if they did not have them in mind or purport to be exercising their powers under them: [98]. He also held that section 12 includes a power to bring a procession to an end [91], that section 14 includes a power to direct an assembly to disperse along a particular route and to stay in a particular place so long as necessary to effect that dispersal [95] and that such conditions can be imposed as a result of the acts of others: [96].

On the facts, the judge found that a public procession or assembly was being held at Oxford Circus [567] and that at the relevant time the relevant police officers reasonably believed the facts necessary to fulfil conditions (1)(a) in each of sections 12 and 14: [568]. He held that the officers gave directions pursuant to the 1986 Act and that it was immaterial that they did not have the provisions of the Act in mind [569-570]. The judge further held that the directions given imposed conditions prohibiting the procession from entering any public place specified in the directions, including conditions as to the route of the procession, and as to the place at which the assembly might continue to be held, its maximum duration, or the maximum number of persons who might constitute it. He did so on the basis that the directions were not to proceed West, East or South from Oxford Circus, but only North, and then only subject to a controlled dispersal, and to remain in Oxford Circus for such period as might be necessary to enable the controlled dispersal to take place safely and consistently with the fulfilment of the purpose for which the direction was given: [571].

Mr Starmer submits, among other things, that, assuming that there was ever a procession (which he does not accept), the purpose of the directions was not to control the procession but to bring it to an end by containing those taking part and gradually releasing them. He submits that section 13 is concerned with prohibiting public processions, whereas section 12 is not. He further submits that it is a misnomer to describe those in Oxford Circus, at any rate from the moment of containment, as taking part in a procession. If anything, they were taking part in an assembly.

As to section 14, which confers powers in the case of an assembly and not a procession, Mr Starmer submits that it does not empower the police to ban an assembly but merely, by section 14(1) to “give directions imposing on the persons … taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him necessary to prevent such disorder, damage, disruption or intimidation”. He submits that the directions given here, namely to stay in one place and then disperse when instructed to do so, were not directions in relation to the continuing of the assembly but as to its ordered dispersal. He further submits that there is nothing in section 14 which permits a police officer to stop a person ceasing to take part in the assembly, which was the essence of the direction on 1 May 2001.

There appears to us to be at least some force in those submissions. We are also concerned about a further point made by Mr Starmer. As we understand it, the possibility of reliance upon sections 12 and 14 of the 1986 Act was raised by the judge after the end of the evidence; so that it did not form part of the evidence given by any of the police officers, except to the very limited extent set out in [172-5] of the appellants’ revised skeleton argument for this court. It is there submitted that the respondent’s case was that the exercise of the senior officer’s powers under sections 12 and 14 was consciously considered but rejected. Instead the police exercised their breach of the peace powers. In his witness statement Mr French said at paragraph 19 that “it was agreed that any implementation of … sections 12/14 Public Order Act as a tactical option could only be done on my directions”. No such directions were given.

In these circumstances Mr Starmer submits that it could not fairly be held that the relevant officer exercised his powers under the 1986 Act. That submission too has some force. We do not know why Mr French did not purport to exercise his powers under section 12 or 14. He may have had a good reason for not doing so.

In all these circumstances, we would be reluctant to embark on a detailed analysis of this part of the case unless it were necessary to do so, which it is not. We will only say that we are not at present persuaded that the judge was correct to hold that that the powers exercised by the police were lawful because they were exercised or can be treated as exercised under the 1986 Act.

It does seem to us that, whatever the strict position as a matter of law, the police should consider their statutory powers in a case of this kind and decide whether or not to exercise them. If they decide to exercise them, it is at least desirable to make it clear that they are doing so, especially since (for example) sections 12(4) and (5) and 14(4) and (5) contain penal sanctions for knowing failure to comply with directions given under them.

Finally, we would add that the debate in this case, both of the common law position discussed in Laporte and of the provisions of the 1986 Act has highlighted the desirability of a thorough consideration of this area of the law in order to see whether it would be possible to make clear provisions appropriate to cover a case of this kind in the future.

Article 5 of the Convention provides, so far as relevant:

“Article 5 - Right to liberty and security

“1.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)

the lawful detention of a person after conviction by a competent court;

(b)

the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)

the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)

the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)

the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)

the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

…

3.

Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The appellants’ case is that their containment amounted to a deprivation of liberty within the meaning of article 5(1). The judge held that they were indeed deprived of their liberty under article 5(1) but that the case falls within the exception in article 5(1)(c) so that the deprivation of liberty was not unlawful. The respondent challenges his decision on the first point, whereas the appellants challenge his decision on the second point. The respondent submits in the alternative that the case falls within the exception in article 5(1)(b). Indeed Mr Pannick puts his reliance upon article 5(1)(b) ahead of his reliance upon article 5(1)(c). We will consider each of these points in turn, although we say at once that we have granted the respondent permission to amend his respondent’s notice to rely upon paragraph (b) because the point was argued before us and the appellants have suffered no prejudice by the fact that the point was taken at a late stage.

The judge considered the distinction between the meaning of false imprisonment in the tort of that name and the meaning of deprivation of liberty in article 5: see [42-3], where he noted that, as was pointed out in Re L when the case reached Strasbourg (HL v United Kingdom Application No 45508/99), the two meanings are not the same. He also observed that it is possible for there to be a deprivation of liberty without false imprisonment and vice versa: [45]. See also [46-8].

The judge discussed the deprivation of liberty in article 5(1) at [56-72] and [501-512]. He correctly observed that the Strasbourg cases have drawn a distinction between a restriction of liberty of movement on the one hand and a deprivation of liberty on the other: see eg Guzzardi v Italy (1980) 3 EHRR 333 (‘Guzzardi’), to which the judge referred in his quotation from Re L at [43]. Guzzardi is an important case because it emphasizes at [92 and 93] that mere restrictions on liberty are governed by article 2 of Protocol no 4, not by article 5 of the Convention, and that the difference between the two is “merely one of degree or intensity, and not one of nature or substance”.

It is important to note that the United Kingdom has not ratified article 2 of Protocol 4. Nor are its provisions part of the HRA or any other statute. They are not part of the law of England and Wales. The question for the judge was whether there was a deprivation of the appellants’ liberty, in which case article 5(1) applies (subject to its exceptions), or there was not, in which case the appellants do not have the protection either of the Convention or of any statute. They do of course have the protection of the common law but, for the reasons given above, the respondent has a defence because of the judge’s findings that the action taken by the police was necessary.

The judge concluded that, subject to what he called consideration of other factors, there was in principle a deprivation of liberty of each person within the cordon from about 2.20 pm until he or she was permitted to leave because no-one was permitted to leave without permission: [502]. He considered the other factors in the succeeding paragraphs as follows:

In a later section of his judgment, when he was discussing the issue of damages, the judge said this in a passage which seems to us to be of some relevance to the issue whether there was a deprivation of liberty and is to be contrasted with what he said in the paragraphs to which we have just referred:

“594.

Fortunately the consequences of MD01 [ie 1 May 2001] to the Claimants did not include any injury. What happened to these Claimants on MD01 is comparable in gravity to what happens to many people when a flight is cancelled at holiday time, by reason of a strike or some other such event. It is also comparable to what happens when there has been an accident on the motorway, and the police bring all traffic to a halt to enable the injured to be evacuated and the wrecks to be removed. This can create long jams behind the police barrier. Commander Allison in evidence drew on this as analogy. In that situation also, when the time comes to remove the barrier, the police control the rate at which the traffic starts to move again, in order to avoid the dangers of an uncontrolled release. Those sorts of delay can last as long, or longer, than seven hours. The conditions can be very bad, and may include the need to provide for small children. There would probably be functioning toilets in an airport case, and some food and drink. But the delay in an airport is commonly much longer than seven hours. The similarity is that in each case the victim is in a place he or she has chosen to go, knowing that there can be risks of discomfort involved, if not necessarily the risks that actually occur. Neither Claimant here appreciated there was a risk of containment, whether for seven hours or at all. But that there were risks from the violent elements in the crowd was known to Ms Austin, and must have been obvious, even to Mr Saxby, who had not seen anything in the papers or on TV.”

It is also we think important to have in mind when considering this part of the case the judge’s critical finding at [548-9] that, if the police were to prevent violence and the risk of injury to persons and property, they had no alternative at 2 pm (when the decision was made) but to impose an absolute cordon.

Mr Pannick submits that the judge erred in principle in reaching the conclusion that the appellants were deprived of their liberty within the meaning of article 5(1). He submits that, applying the principles in the Strasbourg jurisprudence, he should have held that there was here an interference with their liberty of movement but not a deprivation of their liberty. Mr Starmer, on the other hand supports the decision and reasoning of the judge.

Mr Pannick submits that it would be surprising if the respondent infringed the appellants’ rights under article 5 in a case where the judge has held that it was necessary for the police to take the steps they did. We agree. We accept Mr Pannick’s submission that there are a number of considerations which support this conclusion, as follows:

It is we think important to note that these considerations do not by themselves necessarily answer the question how each of the provisions of article 5 should be construed. The appropriate balance could be met by concluding that there was here no deprivation of the appellants’ liberty under article 5(1), or by holding that there was a deprivation of their liberty but either that it was lawful in order to secure the fulfilment of an obligation prescribed by law within article 5(1)(b) or was within article 5(1)(c). Because of its general approach, it does seem to us that, if the ECtHR were to hold that there was a deprivation of the appellants’ liberty, it would be inclined to hold that paragraph (b) or (c) applied in order to ensure that the balance enshrined in the purpose of the Convention was maintained. We stress that we are here concerned with a most unusual case on the facts, in which the judge has held that the police had no real alternative to doing what they did.

We return to deprivation of the appellants’ liberty. In Guzzardi the ECtHR said at [92]:

“The Court recalls that in proclaiming the ‘right to liberty’ paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are covered by Article 2 of Protocol No 4… In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of Article 5, 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 key point is that article 5(1) was intended to avoid arbitrary detention.

The distinction between deprivation of liberty in article 5(1) of the Convention and restriction on movement in article 2 of Protocol 4 is of some importance. In this court in Gillan [2004] EWCA Civ 1067, [2005] QB 388, Lord Woolf CJ, giving the judgment of the court, which comprised himself and Buxton and Arden LJJ, said at [43] that it agreed with the view expressed by Sir Gerald Fitzmaurice in a dissenting opinion in Guzzardi at [6] that the ambit of article 5 should be construed strictly. After comparing the provisions of the Protocol and the Convention he said:

“The resulting picture is that article 5 of the Convention guaranteed the individual against illegitimate imprisonment, or confinement so close as to amount to the same thing – in sum against deprivation of liberty stricto sensu – but it afforded no guarantee against restrictions falling short of that.”

It must be borne in mind that Sir Gerald was dissenting but so too must the distinction between the two concepts, however difficult the distinction is to make on the facts of a particular case: see Gillan in this court at [38].

The duration of the detention is of course an important factor but Guzzardi and the other cases show that it is only one of a number of factors. In Gillan at [41] this court approved the statement in Lester and Pannick, Human Rights Law and Practice, 2^nd edition (2004) at page 164, that “Detention does, however, depend upon the intention of the authorities.” It referred to X v Germany, where the Commission held that a ten year old girl who was questioned at a police station for two hours without being arrested, locked up in a cell or formally detained was not deprived of her liberty within article 5 in circumstances in which the police action was “simply to obtain information from those involved”. That case was, however, much more relevant to the stop and search case being considered in Gillan than to the instant case.

A better example for present purposes is perhaps HM v Switzerland, which was a decision of the ECtHR made on 26 February 2002 (Application No 239187/98). The court held that there was no deprivation of liberty when the applicant was placed in a nursing home, from which she was not allowed to leave, in her own interests because she could not look after herself. The court concluded at [48] that

“in the circumstances of the present case the applicant’s placement in the nursing home did not amount to a deprivation of liberty … but was a responsible measure taken by the competent authorities in the applicant’s interests.”

It is fair to say that that was only one of the factors that the court took into account but the case does show the potential importance of such a consideration. We note in passing that, although the decision in HM v Switzerland was distinguished in HL v United Kingdom, the ECtHR did not disagree with the principle.

Each case must of course be decided on its own facts. While it is true that HM v Switzerland is different from the instant case because the nature of the confinement was quite different, it does show that the interests of the alleged detainees are potentially important and one of the factors to be taken into account. Here, as the judge held, one of the purposes of the police was to protect the individuals in the crowd from the consequences of violence: see eg [504].

We recognise that the exercise of deciding whether on the facts of a particular case a person has been deprived of his or her liberty is essentially a matter for the trial judge, who must weigh a number of different factors in the balance. It follows that an appellate court should not interfere with his or her decision merely because it would have struck the balance differently. It should only interfere if persuaded that the judge erred in principle or reached a decision which was plainly wrong in the sense that it was outside the range of decisions that a reasonable judge could reach.

In the instant case we are persuaded that the judge erred in principle in reaching the conclusion that he did. As we read his judgment, he first concluded that, as from 2.20 pm when the cordon was imposed until each appellant was released, the detention was sufficient physically to amount to deprivation of liberty. Since he correctly recognised that on the authorities it was necessary to consider a whole series of factors, he then considered those. He decided that some pointed one way and some another and ultimately concluded that they did not outweigh his conclusion based on the physical conditions. It follows, as we see it, that he held that the appellants were each deprived of their liberty from the time that the cordon was imposed. As we read his judgment, he did not find that the appellants were not deprived of their liberty when the cordon was imposed but that they were deprived of it some time later. He certainly did not find that they were only deprived of their liberty when they sought and were refused permission to leave.

On this basis the first question is whether the appellants were deprived of their liberty from the outset. In our opinion they plainly were not. The position at that time was not markedly different in terms of detention from a number of different types of confinement or detention to which the judge referred which would not be regarded as a deprivation of liberty within article 5(1). A good example is perhaps a football crowd. It is commonplace for such a crowd to be contained for what may turn out to be quite long periods, partly for the protection of individuals in the crowd and partly (in some cases) to avoid crowd violence, perhaps as between groups of opposing supporters: see eg [510]. Other examples would be those envisaged by the judge at [594], as for example where motorists are unable to leave a motorway, perhaps for many hours, because of police action following an accident. In such cases it may be necessary for police to confine individuals in particular areas for what may be much longer than originally intended.

In our opinion this was plainly such a case. On the judge’s findings of fact, the police had no alternative but to impose the cordon which they did. They anticipated orderly release over two or three hours in order to avoid violence. The judge identified their various purposes, which included safety and the prevention of crime by individuals in the crowd many of whom could not be identified. In these circumstances the original imposition of the cordon could not, in our judgment, properly be regarded as the kind of arbitrary detention which the Strasbourg authorities would describe as deprivation of liberty within the meaning of article 5(1). For these reasons we hold that the judge erred in principle in concluding that the appellants were unlawfully detained as from 2.20 pm.

On that basis, it is for us to consider afresh the remaining question, namely whether they were unlawfully detained thereafter. In our judgment the answer to that question is ‘No’. So for example, as summarised at [51 xv)-xix)] above, on a number of occasions during the afternoon the police gave the order to commence controlled release, only to find that they could not safely carry it through: [347]. On three occasions the decision to commence controlled dispersal north had to be reviewed or suspended because of the conduct of protesters either inside or outside the contained area, with the result that the final release phase did not begin until 8.02 pm: [360, 374 and 375]. During the whole period there was very considerable violence, although not it must be stressed by the appellants: [366, 546 and 547]. If the appellants had not been controlled by and within the cordons, they would have found themselves in an increasingly disorderly situation, which most people would have regarded as less preferable: [504]. The police were in part engaged in an exercise for the benefit of the crowd, to protect members of the crowd from danger from each other and from others who wished to join their number. The risks were from crushing, trampling and missile throwing, which could have been fatal. The crowd of over 1,000 at Oxford Circus needed measures to be taken to control them for their own protection: [506]. As the judge concluded at [2 and 548], this was not simply a static crowd of protesters in Oxford Circus surrounded by police and held in place for 7 hours. It was a dynamic, chaotic, and confusing situation in which there were also a large number of other protesters in the immediate vicinity outside the cordon who were threatening serious disorder and posing a threat to the officers both on the cordon and within it.

In these circumstances it could not sensibly be held that there came a time in which what was originally something less than a deprivation of liberty subsequently became a deprivation of liberty within the meaning of article 5(1) of the Convention. We therefore hold, contrary to the conclusion of the judge, that, if all the relevant circumstances are taken into account, there was not here the kind of arbitrary deprivation of liberty contemplated by the Convention.

It appears to us that this approach has proper regard to the fair balance to which we referred above and, indeed to the principle that, where the Convention imposes an absolute prohibition, the scope of the absolute prohibition should be defined by reference to proportionality: see eg in a different context Soering v United Kingdom (1989) 11 EHRR 439 at [104].

It follows that we conclude that the appellants’ rights under the Convention were not infringed and that, given our earlier conclusion that the respondent has a good defence to the appellants’ claim for damages for false imprisonment at common law, we dismiss the appeal. However, we should briefly refer to article 5(1)(b) and (c) of the Convention, which were much debated in argument.

Mr Pannick submits that, if the appellants were deprived of their liberty within article 5(1), the respondent has a defence because the detention was lawful “in order to secure the fulfilment of any obligation prescribed by law” within article 5(1)(b). As already explained, this point was not put before the judge. It has arisen because of the principles identified obiter in Laporte, which we have already discussed in some detail. Mr Pannick submits that the “obligation prescribed by law” is the obligation stated in O’Kelly and Laporte to assist the police in preventing an imminent breach of the peace.

Mr Starmer submits, to the contrary, that decisions of the ECtHR and of the Commission establish that, for an obligation to be relevant under article 5(1)(b) it must be concrete and specific, and it must be one which the person in question has already failed to fulfil at the time when action is taken which has to be justified under article 5. He suggests that Mr Pannick’s argument is circular, in seeking to justify a deprivation of liberty (if that is what it was) by reference to an obligation to submit to that deprivation. He relies in particular on Engel v Netherlands (No. 1) (1976) 1 EHRR 647, at [69] and Guzzardi at the end of [102]. He points out the Commission’s comment, in McVeigh v UK (1982) DR 25 at [176]:

“The obligation in question cannot, in particular, consist in substance merely of an obligation to submit to detention”.

According to his submission, for the police to be able to justify a cordon such as was used in the present case by reference to an obligation to comply with the request, or direction, to remain within the cordon, would open the way to the sort of conduct, incompatible with the spirit of the Convention, against which the Court warned in Engel and Guzzardi.

We see some force in that submission, although Mr Pannick is entitled to make the point that O’Kelly and Laporte show that in the circumstances found by the judge, namely that (as explained in detail above) the police had no alternative but to do what they did, it was the legal duty of the appellants to comply with the request to stay within the cordon, and to argue that the police put the physical cordon in place in order to enforce the obligation to stay within it. Since it is not necessary, on the basis of our decision that there was no deprivation of liberty, to decide whether, if there had been, it would have been justified under article 5(1)(b), we prefer not to do so, and to leave that question to another day, and to a case in which it has to be decided.

It will be recalled that article 5(1)(c) excludes the following cases:

“the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”.

The judge concluded that, on the true construction of article 5(1)(c), detention of a person when it was considered necessary to prevent him from committing an offence was only lawful if the detention was for the purpose of bringing him before the competent legal authority. In reaching that conclusion at [73-4], the judge naturally relied upon the decision of the ECtHR in Lawless v Ireland (No 3) (1961) 1 EHRR 15, where the court said at [14] that the phrase

“for the purpose of bringing him before the competent legal authority”

did not just apply to the phrase

“on reasonable suspicion of having committed an offence”

but to all parts of article 5(1)(c) including

“when it is reasonably considered necessary to prevent his committing an offence”.

Mr Pannick submits that that reasoning is wrong and that this court should not follow it. He submits that the reasoning is unsound and that, although the court should ordinarily follow a decision of the ECtHR, in such a case it should not. He refers to Jones v Saudi Arabia [2006] UKHL 26, [2006] 2 WLR 1425, per Lord Bingham for the appellate committee at [18]. He also refers to a number of other cases.

In submitting that the reasoning in Lawless is wrong he relies, among a number of other considerations, upon the language of the paragraph, upon what he says is the unconvincing nature of the reasoning in the judgment in Lawless, upon the view expressed by May LJ in the Divisional Court in Laporte at [83] that the opinion of the ECtHR was “contrary to his personal inclination as to the syntax” and upon what he says are good reasons for construing the paragraph differently.

There is undoubted force in Mr Pannick’s submissions but there are arguments the other way, quite apart from the decision and reasoning in Lawless. For example, there is good reason why detention of a person should only be lawful to “prevent his … fleeing after having [committed an offence]” if the detention is “for the purpose of bringing him before the legal authority”. Yet the syntax shows that that purpose requirement must either relate to all three parts of the paragraph or only the first. It cannot relate only to the first and third. Further Mr Starmer relies upon a number of later decisions of the ECtHR which he says follow Lawless.

It appears to us that this important point should only be decided in a case in which the decision is essential to the determination of an appeal. By then, the ECtHR may itself have had an opportunity to express a view and to decide whether it wishes to depart from its previous decision, as it sometimes does. In all the circumstances we do not think that it is necessary or appropriate for us further to lengthen this already long judgment by analysing the point in detail and expressing a view upon it in a case where it is not necessary to do so.

We should perhaps add this with regard to article 5(1)(c). The basis of the case that the police were entitled to deprive the appellants of their liberty under that paragraph is that, in each case, “it was reasonably considered necessary to prevent his committing an offence”. In the light of our conclusion in [56-62] above that the answer to the question whether the appellants appeared to be about to commit a breach of the peace was ‘No’, we do not at present see how the respondent can successfully rely upon article 5(1)(c) in the case of either appellant. However, in the light of our conclusion that there was no deprivation of their liberty under article 5(1), it is not necessary to give further consideration to this question.

In case his decision on liability was held to be wrong, the judge considered the issue of damages: [581-597]. He held that, if either claimant was entitled to damages for false imprisonment, he would have awarded only compensatory damages and not either aggravated or exemplary damages. He would have awarded nominal damages of £5 to Ms Austin and £100 to Mr Saxby: [596]. He would have awarded nothing by way of damages for breach of article 5, if those damages fell to be assessed separately: [597]. The appellants appeal against those awards but, in the light of our conclusion that the appeal on liability fails, we do not think it necessary or appropriate to consider these issues in this judgment.

For these reasons we dismiss the appeal. Our conclusions may briefly be summarised as follows:

Finally we would like to thank counsel for their assistance in this most unusual case and to apologise for the time it has taken to produce this judgment.