Hicks & Ors, R (on the application of) v Commissioner of Police of the Metropolis

The manner in which the Metropolitan Police conducted operations to maintain public order at the time of and immediately prior to the Royal Wedding on 29 April 2011 has given rise to a number of challenges. These were the subject of judicial review before the Divisional Court (Richards LJ and Openshaw J), leading to a comprehensive judgment which dismissed all the claims that had been pursued: see [2012] EWHC 1947 (Admin). Separate appeals were mounted against different parts of the judgment; with the leave of Moses LJ, this appeal has only concerned the issue whether the court erred in finding that the arrest and detention of these (and other) appellants were compatible with Article 5(1) of the European Convention on Human Rights (‘ECHR’).

In short, as a matter of domestic law, the Divisional Court determined that the arrests and detention of each of the appellants prior to the wedding and up to its conclusion were lawful. That finding is no longer the subject of challenge. The present appeals are concerned with the question whether the deprivation of the appellants’ liberty contravened Article 5 of the ECHR.

Before the Divisional Court, in addition to the four persons in whose name this appeal has been brought, there were 11 others, five of whom have not appealed; they were collectively referred to as “the Hicks claimants” to distinguish them from five others who pursued linked claims. The Hicks claimants themselves divided into four groups reflecting the fact that they were arrested in four separate incidents: these consisted of Brian Hicks, the Starbucks claimants, JMC and the Charing Cross claimants. Adopting a suggestion advanced by Moses LJ, it has been agreed to focus, as test cases, on four appellants, each representing one of the four groups, on the basis that it has also been agreed that there is no material difference between the circumstances of each appellant within each group although it is equally agreed that it will be in order to refer to the custody records and statements affecting all appellants. In those circumstances, the appeals of the other 11 appellants have been stayed pending the outcome of this appeal.

A detailed analysis of the policing context and the competing claims in relation to the facts surrounding the arrests can be found in the judgment of the Divisional Court at paragraphs 1 – 120. For the purposes of this judgment, it is sufficient to summarise the individual circumstances quite shortly.

Brian Hicks is 44 years of age and has a long-standing involvement in republican politics. He has some previous convictions for minor offences committed when he was much younger but has had no convictions for over 20 years. His account is that, on 29 April 2011, he was intending to go via Trafalgar Square and Soho Square (at both of which he was aware that there were demonstrations or other events were planned) to Red Lion Square, to attend the “Not the Royal Wedding” street party organised by the campaign group Republic. He was stopped by a plain clothes police officer (who was recognisable to him because he had been at previous demonstrations but he was unaware of his name) and searched under section 1 of the Police and Criminal Evidence act 1984 (PACE) on the ground of suspicion of possession of items for use in criminal damage. Although nothing of significance was found in his possession, Mr Hicks was arrested.

At Albany Police Station, the custody sergeant was informed that Mr Hicks had been arrested to prevent a breach of the peace. Having made a telephone call, the custody sergeant appeared to be satisfied in relation to his detention. He was then subject to a strip search, during which he reports that he overheard someone outside the cell say “They want him here till 3.00pm, when the celebrations finish.”

The police account of the circumstances in which Mr Hicks came to be arrested is provided by the arresting officer, Inspector Wakefield. He describes his concern that Mr Hicks was planning an “individual direct action of criminal damage against the shops on Charing Cross Road” and says that he had items in his pockets that would assist him in this plan. Based on his previous experience of Mr Hicks at protests where violence had erupted, he expressed the suspicion that he was heading for Trafalgar Square to meet with others who were intent on causing disruption to the Royal Wedding, with the result that he had to arrest Mr Hicks in order to prevent a breach of the peace.

We turn to the custody record. After the recitation of the circumstances of the arrest, timed at 10.55am, the custody sergeant records (with abbreviations explained but typographical errors uncorrected):

“I explained to DP [Detained Person] that as BOP [Breach of Peace] is not a criminal offence the rules re solicitor do not apply however, we shall work within the spirit of PACE. PD requested sols [solicitors] and was called by PC Price.

I explained to PD that as he was in custody to prevent a BOP he was unlikely to be released until the celebrations had finished, after speaking to Bronze Crime [ie part of the command] earlier this is anticipated to be c 3 am. I relayed this to PD and he made no representations re this. He appears resigned to his fate.”

At 11.44 am, there is noted that the arresting officer, Inspector Wakeford, had been spoken to and the record continues:

“he is part of an ongoing operation in relation to the security of the Royal Wedding. He has been appraised of the need for notes in relation to this [sic] incident but unfortunatly cannot, due to urgent operational requirements do these at the moment. I am happy that there was indeed a likelihood of a BOP [Breach of Peace] and should PD be released this will be a real threat … and as such the detention of PD should be continued. Notes re arrest will be forwarded to the custody suite at the first opportunity.”

Finally, at 14.34, there is a further note which brought the detention of Mr Hicks to an end:

“I have just received information from DS Annette MASLIN, Who is from Op Malone (Bronze Crime Support). As the wedding itself is now over and the immediate celebrations have finished, there is no longer a likelihood of a BOP and PD may be released.”

Deborah Scordo-Mackie is the representative of the ‘Starbucks’ claimants, all of whom are of good character, with no previous convictions or cautions and with no previous adverse interaction with the police. They do not describe themselves as particularly anti-monarchist, and their evidence is that none was intending to participate in any form of anti-Royal Wedding demonstration on 29 April.

They arrived in Soho Square between 10.00am and 11.00am, their intention being to take part in the “zombie picnic” organised by the campaign group Queer Resistance, which publicises the impact of Government spending cuts on lesbian, gay, bisexual and transgender communities. All four were dressed in some element of zombie fancy dress and wore make-up accordingly. Shortly after meeting in Soho Square, the group observed a scuffle between some plain clothes police officers and a protester who had been singing protest songs. They then noticed a large number of police officers blocking three of the four routes out of Soho Square and decided to leave by the unblocked exit not wishing to encounter any trouble. They intended to go for a drink together at Starbucks in Oxford Street before going their separate ways.

Having been in Starbucks for a few minutes, police officers entered and asked them to accompany them outside. They were then searched under s.60 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), which, under s.60AA, gives power to require the removal of disguises. Nothing of significance was found. The female officer who had been dealing with them took a call on her radio and then informed them that she had to arrest them. She apparently apologised for this and said that it had been ordered by someone higher up. The officers told the group that the view had been taken that their costumes suggested that they might cause trouble later in the day. In fact, the police had obtained intelligence to the effect that there had been a plan for protesters to dress as zombies, meet at Westminster Abbey at 11am, throw maggots at the wedding procession leaving the church and to cause other disruptions. The officers were therefore told that the group were intending to breach the peace and should be arrested.

Ms Scordo-Mackie was taken to Belgravia Police Station, the reasons for her arrest being recorded on the custody record as being “To prevent the detained person committing an offence against public decency. To prevent the detained person causing physical injury to self or any other persons.” The circumstances were that “PD part of a group seen earlier and fear that PD and others would cause a BOP by attending Royal Wedding Route”. The disposal is initially recorded as: “Bind over after complaint – breach of the peace likely” but marked at 15.54 “No Further Action”, the relevant entry reading:

“Following consultation with officers in charge of the Royal Wedding Operation, it is now clear that no further threat is posed by any of the persons concerned, therefore the PD is to be released forthwith with no further action. The PD is out of cell, the above explained. Agrees earlier action not appropriate. Released and record closed.”

JMC identifies as “genderqueer” and falls outside the generally recognised gender distinctions of male and female: whilst born male, for legal purposes she is female. She has no criminal convictions or cautions and no previous adverse interaction with the police. On 29 April 2011, she attended the Queer Resistance zombie picnic in Soho Square with a friend who also identifies as genderqueer. The purpose of their attendance was to demonstrate against the public spending cuts in a social setting. Arriving at 10.00am, wearing white face paint and fake blood, they discovered that the planned events did not appear to be taking place and they were confronted instead with a large police presence and a number of journalists with cameras. They decided to leave, as they anticipated that arrests might take place and they did not wish to be involved.

They left Soho Square with the intention of going home. As they were walking down Frith Street they were confronted by a number of cameramen who were taking photographs of them; they covered their faces with a scarf and a bandana until they had passed the photographers. Moments later, they were approached by a group of police officers from the Territorial Support Group (“TSG”) who asked them why they had masked their faces. JMC explained why. The officers then said that they would be searched pursuant to section 60 of the 1994 Act.

The officers found on JMC a leaflet for the zombie picnic that she had intended to attend, and also some make-up. She and her friend were told that they were going to be arrested because they were in possession of the leaflet and they had no reason to be in that location at that time. When they arrived at West End Central police station, at around 11.00am, JMC recollects that the custody sergeant said to them words along the lines of “You’ll be kept in until the kiss on the balcony, then we will let you go”.

The reason for arrest recorded on the custody record was “to allow the prompt and effective investigation of the offence or of the conduct of the detained person”. The circumstances were described in these terms:

“Subject stopped wearing masks at location where a s.60 power was in force. When asked about the masks stated going to the pub and found to be in possession of an ‘anti-royal’ leaflet advertising a gathering today. Officers believed that they had an intent to cause disruption of the wedding.”

The reason for detention was recorded as “to prevent breach of peace” and the grounds as “to charge”. As for disposal, there was recorded:

“Matter of complaint – bind over – apprehension of breach of the peace – disposal at 13:53 29/4/2011 – No Further Action NFA -”

Mr Hurley is representative of nine claimants before the Divisional Court who were known as the Charing Cross claimants. Save in relation to one claimant (who had been cautioned for possession of cannabis), all are of good character, with no previous convictions, cautions or interactions with the police.

The nine claimants (and another man) arrived at Charing Cross railway station at about 10.30am on 29 April 2011. Their evidence is that it was initially their intention to attend a republican protest in Trafalgar Square but it became clear that that would not be possible, so, instead, they decided to attend the “Not the Royal Wedding” street party in Red Lion Square. However, before they left the station forecourt they were approached by officers of British Transport Police (“BTP”) and were then searched pursuant to section 60 of the 1994 Act. They were found to be in possession of a number of placards, an example of one read “Democracy now: it is right and fitting to die for one’s country.” They were also found to be in possession of a megaphone, a cycling scarf and a helmet which was described by the claimants as a cycling helmet but by the police as a climbing helmet.

Shortly thereafter a large number of officers from the TSG surrounded the group and held them in containment. They were told that they were being held in order to prevent a breach of the peace. They were then handcuffed, arrested and taken to Sutton police station, where they were held until about 3.30pm. Only three of them were formally booked into custody; the rest were detained in the police yard. They remained in handcuffs throughout. On release, the claimants were not given any paperwork. No further action was taken in respect of any of them.

The police record is not inconsistent with this account. A custody record was not fully completed although the circumstances of Mr Hurley’s arrest are described in these terms:

“DP was stopped with a group of others carrying anti-royalist banners and signs, some had helmets and climbing gear and officers feared they would disrupt the Royal Wedding arrested to prevent violence and damage.”

The record also explains that, at 15.36, detention was not authorised in these circumstances (with typographical errors included):

“Reason detention not authorised. Prior to the d/p being booked in, informed that that DCS Horne had decided the likeleyhood of a Breach of the peace was now over, so d/p released from station yard.

The reason for delay in opening the Custody record was because Booking in other detainees. The reason for delay in arrival was because Travelling from central London.”

On these appeals, it is now common ground that the police officers acted lawfully to the extent that they exercised preventative powers recognised in domestic law. The unlawfulness which the appellants seek to establish exists entirely within the reach of Article 5 of the ECHR. It is nevertheless appropriate to refer first to the way in which domestic law addresses these issues.

The basic principle was expressed by Lord Bingham in R (Laporte) v Chief Constable of Gloucester [2007] 2 AC 105 (at paragraph 29):

“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” (Emphasis added)

The temporal ambit of the words we have emphasised has been described by reference to words such as “immediate” or “imminent”. This was further explained in the same case by Lord Carswell (at paragraph 102):

“… the imminence or immediacy of the threat to the peace is an essential condition which should not be diluted … I do consider, however, that it can be properly applied with a degree of flexibility which recognises the relevance of the circumstances of the case. In particular it seems to me rational and principled to accept that where events are building up inexorably to a breach of the peace it may be possible to regard it as imminent at an earlier stage temporally than in the case of other more spontaneous breaches.”

This is, therefore, unapologetically, a preventative power.

The further implications of this power were helpfully explained in Williamson v Chief Constable of West Midlands Police [2004] 1 WLR 14 where it was established that a breach of the peace is not an “offence” for the purposes of the Police and Criminal Evidence Act 1984, so that the provisions of that Act do not apply. The position was explained by Dyson LJ in these passages:

“19.

The common law provides persons arrested and detained for breach of the peace with a considerable measure of protection against arbitrary arrest and/or unreasonable detention. Thus, an arrest may only be lawfully made if a breach of the peace is being, or reasonably appears to be about to be committed … When a person is arrested at common law for breach of the peace, the arrested person must be taken to a police station and then brought before a justice as soon as reasonably practicable …

20.

…for the most part, persons detained for breach of the peace are either released unconditionally after a very short period of detention, or are promptly brought before the magistrates’ court by the police exercising their common law power …

21.

If the police consider or ought reasonably to consider that there is no longer a real (as opposed to fanciful) danger that, if released, the detained person will commit or repeat his breach of the peace within a short time, and they decide, or ought reasonably to decide, that a bind over to keep the peace is unnecessary, then continued detention is unlawful at common law. Furthermore, if the police reasonably consider that such danger exists, detention will become unlawful at common law if they fail to take the detained person to the magistrates’ court as soon as reasonably practicable.”

Dyson LJ also noted, at paragraph 29 of his judgment, that the protections provided by the common law reflected the provisions of Article 5(3) of the ECHR “quite closely”. Applying these principles to the present appellants, it is now common ground that the decisions to arrest, to detain and later to release without recourse to the magistrates’ court were, in the circumstances (including the timescale), lawful at common law.

The case for the appellants is that their arrests and detentions were unlawful because contrary to their rights contained in Article 5(1) of the ECHR, upon which they can rely pursuant to section 6 of the Human Rights Act 1998. The police say that they did not act unlawfully because they were entitled to rely on Article 5(1)(c) or (b). The relevant parts of Article 5, which is headed “Right to liberty and security”, read as follows:

“1.

No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(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.

…

3.

Everyone arrested and detained in accordance with the provision 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 a trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

Although Article 5(1) (b) and (c) are both relied upon by the police in the present case, the primary focus is on (c).

The Divisional Court concluded that the arrests and detentions were lawful pursuant to Article 5(1)(c), which it considered “far better suited” to cover the situation than Article 5(1)(b) and that it would be “a little surprising” if Article 5(1)(b) could be relied on (paragraph 187).

The main issue in relation to Article 5(1)(c) was whether the words “for the purpose of bringing him before the competent legal authority”, which plainly qualify an arrest or detention on reasonable suspicion of “having committed an offence”, also qualify an arrest or detention “to prevent his committing an offence”. The Divisional Court found it

“tolerably clear that detention ‘for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence’ is distinct from detention ‘reasonably considered necessary to prevent his committing an offence’: they are separate bases for detention under art.5(1)(c) and the latter basis is not qualified by the words ‘for the purpose of bringing him before the competent legal authority’.”

It found (at paragraph 184) that to be a more rational reading of Article 5(1)(c) than the contrary construction given to it in Lawless v Ireland (No3) (1961) 1 EHRR 15. It also considered its approach to be supported by Nicol v United Kingdom (Application 32213/96, admissibility decision of 11 January 2001). It further considered (at paragraph 185) that, even on the Lawless construction, it might be “sufficient if the arrest and detention were carried out in good faith and with the possibility of bringing the person before a court for a bind-over”. It added:

“A later decision, on review of the case, to take no further action and not to seek a bind-over would not invalidate the initial review or detention.”

This analysis was said to derive support from Brogan v United Kingdom (1988) 11 EHRR 117.

We heard submissions on this appeal as long ago as 17 June. They were a reflection and a refinement of the submissions advanced in the Divisional Court. We reserved judgment. A few days later, counsel alerted us to Ostendorf v Germany (Application 15598/08) in which the Strasbourg Court had given judgment on 7 March 2013. The judgment ostensibly contains a firm endorsement of Lawless in relation to aspects of Article 5(1)(c) and also includes consideration of Article 5(1)(b) in the context of arrest and detention as preventative powers in the face of a threat to public order. We invited further written submissions. On receipt, they were predictably polarised. We decided to hold a further hearing. Unfortunately, this could not take place until 22 October. We again reserved judgment. This is the explanation for the long delay since 17 June. Moreover, consideration of Ostendorf and the parties’ later submissions have caused us to reassess the entire development of the Strasbourg jurisprudence. It is, of course, our duty to “take into account” Strasbourg decisions when construing the ECHR (Human Rights Act 1998 section 2(1)) but our reassessment gives rise to a further issue on the extent to which a national court must follow the most recent interpretation of a Convention provision, where (in our view) this is not consistent with earlier interpretations, but the differences are not acknowledged by the ECHR.

Because it now looms so large in the submissions, and because its factual matrix may be considered more similar to that of the present appeals than those of some of the earlier cases, it is helpful to describe Ostendorf before tracing the development from Lawless.

The applicant in Ostendorf was registered on a German database as a person prepared to use violence in the context of sports events. He travelled with a group of others from Bremen to Frankfurt in order to attend a football match. They were kept under police surveillance. Some (not the applicant) were searched and found to be in possession of things associated with the perpetration of crowd violence. The applicant was arrested at a pub. He was taken to a police station close to the football stadium where he was detained until one hour after the match had ended. In all, he was under arrest and in detention for about four hours. He was not charged at any stage. The German courts rejected his complaints of unlawful arrest and detention. The Strasbourg Court held that the arrest and detention were lawful pursuant to Article 5 (1)(b) but not in relation to Article 5(1)(c). It is with Article 5(1)(c) that we are concerned at this stage.

The relevant passages of the judgment in relation to Article 5(1)(c) are as follows:

“66.

Under the second alternative of subparagraph (c) of Article 5 (1), the detention of a person may be justified ‘when it is reasonably considered necessary to prevent his committing an offence’. Article 5(1)(c) does not, thereby, permit a policy of general prevention directed against an individual or a category of individuals who are perceived by the authorities, rightly or wrongly, as being dangerous or having propensity to unlawful acts. That ground of detention does no more than afford the Contracting States a means of preventing a concrete and specific offence …

67.

Under the Court’s well established case law, detention to prevent a person from committing an offence must, in addition, be ‘effected for the purpose of bringing him before the competent legal authority’, a requirement which qualifies every category of detention referred to in Article 5(1)(c) (see Lawless v Ireland (No3) …).

68.

Subparagraph (c) thus permits deprivation of liberty only in connection with criminal proceedings … It governs pre-trial detention … This is apparent from its wording, which must be read in conjunction both with subparagraph (a) and with paragraph 3, which form a whole with it … Paragraph 3 of Article 5 states that everyone arrested or detained in accordance with the provisions of paragraph 1(c) of Article 5 shall be brought promptly before a judge – in any of the circumstances contemplated by the provisions of that paragraph – and shall be entitled to a trial within a reasonable time.

…

82.

The Court … recalls that under paragraphs 1(c) and 3 of Article 5, detention to prevent a person from committing an offence must, in addition, be ‘effected for the purpose of bringing him before the competent legal authority’ and that the person is ‘entitled to trial within a reasonable time’. Under its long established case law, the second alternative of Article 5 (1)(c) therefore only governs pre-trial detention and not custody for preventive purposes without the person concerned being suspected of having already committed a criminal offence …

83.

…It is, however, clear that the aim of his detention was purely preventive from the outset. As noted above, it is indeed uncontested that the applicant in the present case was not suspected of having committed a criminal offence as his preparatory acts were not punishable under German law. His police custody only served the (preventive) purpose of ensuring that he would not commit offences in an imminent hooligan altercation. He was to be released once the risk of such an altercation had ceased to exist and his detention was thus not aimed at bringing him before a judge in the context of a pre-trial detention and at committing him to a criminal trial.

84.

The Court notes that the Government advocated a revision of the Court’s case-law on the scope of Article 5 § 1 (c) in this respect. It agrees with the Government that the wording of the second alternative of sub-paragraph (c) of Article 5 § 1, in so far as it permits detention “when it is reasonably considered necessary to prevent his committing an offence”, would cover purely preventive police custody in order to avert imminent specific serious offences which is here at issue.

85.

However, that interpretation could neither be reconciled with the entire wording of sub-paragraph (c) of Article 5 § 1 nor with the system of protection set up by Article 5 as a whole. Sub-paragraph (c) of Article 5 § 1 requires that the detention of the person concerned is “effected for the purpose of bringing him before the competent legal authority” and under Article 5 § 3 that person is “entitled to trial within a reasonable time”. As the Court has confirmed in its case-law on many occasions, the second alternative of Article 5 § 1 (c) is consequently only covering deprivation of liberty in connection with criminal proceedings. In particular, contrary to the Government’s submission, the term “trial” does not refer to a judicial decision on the lawfulness of the preventive police custody. Those proceedings are addressed in paragraph 4 of Article 5.

86.

The Court further observes that, contrary to the Government’s view, the second alternative of Article 5 § 1 cannot be considered as superfluous in addition to the first alternative of that provision (detention “on reasonable suspicion of having committed an offence”). A detention under sub-paragraph (c) of Article 5 § 1 may be ordered, in particular, against a person having carried out punishable preparatory acts to an offence in order to prevent his committing that latter offence. That person may then be brought before a judge and be put on a criminal trial, for the purposes of Article 5 § 3, in respect of the punishable preparatory acts to the offence.”

As well as advocating a revision of the Court’s case law on Article 5(1)(c), the German government had made the Court aware of the importance, in the German legal system, of preventative police custody “in order to avert dangers to the life and limb of potential victims or significant material damage” especially in situations involving policing of large groups of people at mass events (paragraph 88). In rejecting these submissions, the Court said it had decided to follow what it considered to be its “longstanding interpretation of Article 5(1)(c)” (paragraph 89). However, it went on to conclude that the arrest and detention were lawful under Article 5(1)(b).

In the present case, Ms Phillippa Kaufmann QC submits that, having taken Ostendorf into account, we should conclude that the Divisional Court was wrong to find the arrest and detention in the present case to be lawful under Article 5(1)(c). It seems to us that if we were mechanistically to follow Ostendorf this submission would be irresistible. After all, it rejects the very construction of Article 5(1)(c) adopted by the Divisional Court. Mr Sam Grodzinski QC submits that we should resist such an approach and he submits that the Strasbourg authorities are neither clear nor constant in their interpretation of Article 5(1)(c). It will be necessary, therefore, to consider the development of the Strasbourg jurisprudence in order that we can put Ostendorf properly in context. But, before we do that, it seems sensible to examine the wording of Article 5(1)(c) without reference to the Strasbourg case law.

Article 5(1) begins by expanding the general positive principle that everyone has the right to “liberty and security of person”. It then sets out the bases on which there can be a derogation from that right. No one is to be deprived of this liberty “save in the following cases”, so that any deprivation must come within one of the six sub-paragraphs (a) to (f) of Art 5(1). Furthermore, the deprivation must also be “in accordance with a procedure prescribed by law”. This second requirement refers to a procedure prescribed by domestic law, although that law must also satisfy the general Convention rule that the law is both ascertainable and certain: see eg. SW v UK (1996) 21 EHRR 363 paras. 35-6. The English law on arrest and detention on suspicion of a breach of the peace was held to be sufficiently ascertainable and certain for Convention purposes in Steel v UK (1998) 28 EHRR 603 at paragraph 55.

Each of the six sub-paragraphs of Art 5(1) which set out the specific circumstances in which a person can be deprived of his right to liberty refers to “lawful” arrest or “lawful” detention or both. This must mean “lawful” according to the relevant domestic law. We think that this is important when considering the correct construction of Art 5(1)(c).

Article 5(1)(c) describes several situations in which (provided what has been done is in accordance with a procedure prescribed by law) a person may be deprived of his right to liberty. It may be helpful to set out the wording with this in mind:

“the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority (i) on reasonable suspicion of having committed an offence or(ii)when itis reasonably considered necessary to prevent his committing an offence or (iii)fleeing after having done so”. [Our additions are in italics and our emphasis is underlined].

It seems clear, first, that there are three different categories of situation that are contemplated within this sub-paragraph. Secondly, the sub-paragraph contemplates arrest/detention in the context of actual or possible criminal offences, in respect of each of the three categories, because the word “offence” comes into the description of each of the three categories. This must mean “criminal offence” in Convention terms and it was accepted in Steel that a ‘breach of the peace” is such for the purposes of Art 5(1)(c): see paragraph 50. Thirdly, in relation to each of the three categories, the arrest/detention of the person must be “effected for the purpose of bringing him before the competent legal authority”. In our view the wording plainly contemplates that this “purpose” must be present at the time of the arrest/detention, not thereafter. The phrase “for the purpose of” may seem slightly strange but we think it has the sense of “with the intention of” bringing the arrested/detained person before the competent legal authority.

However, two things are not clear from the wording. The first issue is whether the arrested/detained person has actually to bebrought before the competent legal authority. The words do not say so and, in our view, the words on their face deal only with the purpose at the time of arrest/detention, not with what is actually done thereafter. The second issue is that it is not clear from the wording itself what it is contemplated the competent legal authority has to do if and when the arrested/detained person is brought before it. Bringing the arrested/detained person before the competent legal authority could be for one of two possible purposes. These are either to authorise the further detention or to require the release of the detained person; or, alternatively, to try the person for any alleged offence. Given the ambit of the three categories covered by Article 5(1)(c) it would appear that both these purposes are contemplated by this wording.

The next issue is the ambit of the three categories referred to in the sub-paragraph. The first one is where a person has been lawfully arrested/detained for the purpose of bringing him before the competent legal authority “on reasonable suspicion of having committed an offence”. That is reasonably straightforward. However, it is noticeable that the purpose is to bring the arrested/detained person before the competent legal authority when he is only subject to a “reasonable suspicion”, not that he is alleged actually to have committed “an offence”. In English law there is, obviously, a very clear distinction between these two concepts. We think that this reinforces our view that Article 5(1)(c) contemplates that the “competent legal authority” is not necessarily going to deal with the “merits” of an offence if the arrested/detained person is brought before it, because at that stage there may be insufficient evidence to make good a charge. Therefore in that circumstance the object of bringing the detained person before the judicial authority must be limited to the question of whether authorisation will be given to detain the person further or he must be released. In that way “internment” is avoided.

The second category is the important one for the purpose of this appeal. It starts with the words “orwhen it is reasonably considered necessary…”. The “or” shows that this is a different situation from the first one referred to above. The first issue in relation to this part of Article 5(1)(c) is what is meant by “it”? There are two possible constructions. The first is that “it” must refer to simply “the lawful arrest or detention of a person…” If that is so, then at the point at which the person is arrested/detained he will not have committed an offence nor will he have been arrested on suspicion of having done so. The second possible construction is that “it” refers to “the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on suspicion of having committed an offence”. In that case the person will either already have committed an offence or he may already reasonably be suspected of having done so and the arresting/detaining authority wishes to arrest/detain the person in order to prevent him from committing furtheroffences. But on this second construction, this part of the wording of Article 5(1)(c) would not be needed. If a person has already (arguably) committed an offence, then he will be arrested/detained under the first situation; so the second would be superfluous. It seems to us, therefore, that the second situation is there to deal with the case where a person has not yet(even arguably) committed an offence, but it is considered necessary to prevent him from committing one. But, we would emphasise, at the time of the arrest/detention, it must still be done with the purpose of bringing him before the competent legal authority. So far as English law is concerned there are manifest safeguards against this being used as “internment”; this is clear from our discussion of the domestic law. In that way the lawfulness of the arrest can be challenged.

The third category is where the lawful arrest and/or detention is reasonably considered necessary to prevent a person from fleeing after he has already committed an offence. That is not relevant to these appeals.

If our construction of the second of the three categories covered by Art 5(1)(c) is correct, then there are three safeguards against internment. First, there is the safeguard of having the purpose, at the time of the arrest/detention, of bringing the person before the competent legal authority, a point which exercised the ECtHR in Ostendorf. Secondly, there are the opening words of Art 5(1): “in accordance with a procedure prescribed by law” which means that the process of arrest/detention must be in accordance with domestic law, which must itself be ECHR compliant, i.e. ascertainable and certain. Thus, in the present context, English law requires that the arresting person has a “reasonable belief” that a breach of the peace is “imminent”. The third safeguard is in Art 5(3), which, as Dyson LJ pointed out in Williamson, reflects the English common law. In practical terms under English law the person who has been arrested on the reasonable belief that a breach of the peace is imminent must be brought before a magistrate as soon as possible.

With that analysis, we consider next how the ECtHR has in fact construed Article 5(1)(c) in its decisions.

The first of the series is Lawless v Ireland (No 3) (1961) 1 EHRR 15. The applicant was a member of the Irish Republican Army who was detained without trial for five months by order of the Minister of Justice pursuant to an Irish statute. The Irish government had argued that the applicant’s detention came within the second of the three situations in Article 5(1)(c) and that the qualification “effected for the purpose of bringing him before the competent legal authority” was not applicable. The Court said (at paragraph 14):

“It is evident that the expression “effected for the purpose of bringing him before the competent legal authority” qualifies every category of cases of arrest or detention referred to in that subparagraph. It follows that the said clause permits deprivation of liberty only when such deprivation is effected for the purpose of bringing the person arrested or detained before the competent judicial authority, irrespective of whether such person is a person who is reasonably suspected of having committed an offence, or a person whom it is reasonably considered necessary to restrain from committing an offence, or a person whom it is reasonably considered necessary to restrain from absconding after having committed an offence.”

The Court reached this conclusion by construing Article 5 (1)(c) in conjunction with Article 5 (3). It considered the construction to be driven not only “by grammatical analysis” but also by reason of its consistency with the purpose of the ECHR “which is to protect the freedom and security of the individual against arbitrary detention or arrest”. It considered that any other construction would mean that “anyone suspected of harbouring an intent to commit an offence could be arrested and detained for an unlimited period on the strength merely of an executive decision without its being possible to regard his arrest or detention as a breach of the Convention”. However, it is to be noted that the Court found that, provided that the purpose of bringing the person before the competent judicial authority is present, the person detained could be one who (a) is reasonably suspected of having committed an offence; or (b) a person whom it is reasonably considered necessary to restrain from committing an offence or (c) a person whom it is reasonably considered necessary to restrain from absconding.

In Brogan v United Kingdom (1989) 11 EHRR 117 the four applicants were arrested and detained under section 12 of the Prevention of Terrorism Act. They were released after between four and six days respectively without having been charged with any offence or brought before a magistrate. The court found that there had been no violation of Article 5(1) but there had been a violation of Article 5(3). The following passages in the judgment are important:

“52.

Article 5(1)(c) also requires that the purpose of the arrest or detention should be to bring the person concerned before the competent legal authority. The Government and the Commission have argued that such an intention was present and that if sufficient and usable evidence had been obtained during the police investigation that followed the applicants’ arrest, they would undoubtedly have been charged and brought to trial …

53.

The Court is not required to examine the impugned legislation inabstracto but must confine itself to the circumstances of the case before it. The fact that the applicants were neither charged nor brought before a court does not necessarily mean that the purpose of their detention was not in accordance with Article 5(1)(c). As the Government and the Commission have stated, the existence of such a purpose must be considered independently of its achievement and sub-paragraph (c) of Article 5(1) does not presuppose that the police should have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicants were in custody. Such evidence may have been unobtainable or, in view of the nature of the suspected offences, impossible to produce in court without endangering the lives of others. There is no reason to believe that the police investigation in this case was not in good faith or that the detention of the applicants was not intended to further that investigation by way of confirming or dispelling the concrete suspicions which, as the court has found, grounded their arrest. Had it been possible, the police would, it can be assumed, have laid charges and the applicants would have been brought before the competent legal authority. Their arrest and detention must therefore be taken to have been effected for the purpose specified in paragraph (1)(c).”

Thus, Brogan is further authority for the proposition that the purpose of an arrest or detention must be to bring the person concerned before the competent legal authority. But the important additional factors are, first, that the court contemplated that there could be arrest and detention before there was enough evidence to bring a charge; and secondly, the mere fact that neither criminal charges nor a court appearance ensue before detention comes to an end does not necessarily negate the existence of the purpose at the time of arrest or detention. It was quite possible for the police, acting in good faith, to arrest and detain but then to release without judicial intervention once their initial “concrete suspicions” yielded no further significant material.

It is not necessary to go into detail of the facts of Steel v UK (1998) 28 EHRR 603. We need only note that the court stated, at paragraph 50, that each of the applicants was arrested and detained “for the purpose of bringing him or her before the competent legal authority on suspicion of having committed an offence or because it was necessary to prevent the commission of an offence” (our emphasis). This indicates that the court treated the first two categories of Article 5(1)(c) as being alternative circumstances when a person could be arrested and detained for the purpose of bringing him before the competent legal authority.

Nicol and Selvanayagam v United Kingdom (Application No32213/96) 11 Jan 2001 concerned a factual situation more akin to the present case. The applicants were protesting at an anti-fishing protest on 28 May. Police officers arrived at the scene and told them to desist. When the applicants refused they were arrested for “breach of the peace”. They were taken to the Police station and detained, the custody record stating the reason for detention as being to “allow a period of calming and to determine method of processing”. Some 3½ hours later they were charged with “conduct whereby a breach of the peace was likely to be occasioned”. They were kept in detention, the further detention being “to prevent the prisoner from disrupting the fishing event tomorrow …”. On 30 May, by which time they had been in detention for 48 hours, they were taken before the magistrates’ court. The case was adjourned and they were released on bail. Subsequently the magistrates found the charge proved but the protesters refused to be bound over so they were given short terms of imprisonment. An appeal by way of case stated failed.

The ECtHR declared the case inadmissible. The court divided the period of detention into two parts. It stated (at page 9):

“The initial detention was to prevent the applicants from committing an offence; as regards the period of detention after the fishing match on the following day – or throughout the period subsequent to the initial fishing competition if there was none on the second day – the applicants were clearly being detained for the purpose of bringing them before the competent legal authority on suspicion of having committed an offence. It follows that the applicants’ initial arrest and detention were compatible with Article 5(1)(c) … ”

On any view this is not an entirely satisfactory decision. As regards “the initial detention”, it does not face up to the Lawless ruling, viz. even if the detention is to prevent the applicants from committing an offence, it must still be for the purpose for bringing the detainee before the competent legal authority. On the other hand, the decision – which was not referred to in Ostendorf – accepted the lawfulness of “the initial detention” even though, at that time, the express and only purpose was recorded in preventative terms – “to allow a period of calming and to determine method of processing”. Mr Grodzinski relied strongly on this decision for the proposition, rejected by the ECtHR in Lawless, that where the arrest and detention was preventative only, there was no need to have (at the time of arrest/detention) the purpose of bringing the detainee before the competent legal authority.

One of the cases which was considered in Ostendorf was Jecius v Lithuania (2002) 35 EHRR 16. The applicant was challenging three periods of detention, the first of which had been effected as a preventative measure pursuant to a domestic statute. The challenge to that detention succeeded. The Court stated:

“50.

The Court observes that a person may be deprived of his liberty only for the purposes specified in Article 5(1). A person may be detained under Article 5(1)(c) only in the context of criminal proceedings for the purpose of bringing him before the competent legal authority on suspicion of his having committed an offence.

51.

The Court considers therefore that preventive detention of the kind found in the present case is not permitted by Article 5(1)(c).”

The detention in question had lasted for about five weeks. Paragraph 50 was said, in the footnote, to be based on Lawless. However, the court in Jecius appears to give Article 5(1)(c) a more restricted scope than it did in Lawless, because it appears to limit it to a case where the person is detained for the purpose of bringing him before the competent legal authority “on suspicion of his having committed an offence”. There is no mention of the preventative category. This is important because it is clear that the Court in Ostendorf paid particular attention to this passage in paragraph 50 of the judgment in Jecius: (see paragraph 67 of Ostendorf).

We ought also to refer to A v United Kingdom and Al-Jedda v United Kingdom. They both concerned lengthy periods of detention without charge or trial which resembled internment in the sense in which that term is generally used. They contain general statements about internment and preventative detention being “incompatible with the fundamental right to liberty under Article 5(1)” (A, paragraph 171) and permissible detention under Article 5(1) not including “internment or preventive detention where there is no intention to bring criminal charges within a reasonable time” (Al-Jedda, paragraph 100). However, these statements have to be seen in the context of the factual matrices.

In paragraph 66 of Ostendorf the court expressly accepts that “under the second alternative” of Article 5(1)(c), detention of a person may be justified “when it is reasonably considered necessary to prevent his committing an offence”. But that alternative “does no more than afford the Contracting States a means of preventing a concrete and specific offence”, as regards, in particular the place and time of its commission and the victims of it. So far the analysis is orthodox. The statement in paragraph 67 that the purpose (of bringing the detainee before the competent legal authority) must be present at the time of detention, even in the case of this second alternative, is also orthodox.

The difficulty starts with paragraph 68 where the court states that Article 5(1)(c) permits deprivation of liberty “only in conjunction with criminal proceedings” (citing Jecius at para 50) and that Article 5(1)(c) “governs pre-trial detention”. However, as we have already noted, the crucial last part of the second sentence of paragraph 50 in Jecius was dealing only with the first of the three categories covered by Article 5(1)(c), not the second, which is the relevant one for present purposes. Although the purpose of bringing him before a competent legal authority has to be present in each case, the circumstances are not confined to those where the person has been detained on suspicion of his having committed an offence. Earlier cases had said that it can also be in circumstances where it is necessary to prevent the person from committing an offence: see paragraph 14 of Lawless and paragraph 50 of Steel.

As for the statement in paragraph 68 of Ostendorf, relying on paras 38-40 of Ciulla v Italy (22 February 1989, series A No 148), that Article 5(1)(c) is concerned with “pre-trial detention”, this refers to a single remark at paragraph 39 of the latter case, where the court was comparing the preventative procedure under the Italian law of 1956, which was not concerned with criminal proceedings at all, with “the pre-trial detention as governed by Article 5(1)(c) of the Convention”. The statement in Ciulla is not that Article 5(1)(c) is only concerned with situations where a person has been charged and is being detained “pre-trial”; if Article 5(1)(c) were so limited then it would mean that what the court said in Lawlesscould no longer be regarded as authoritative Strasbourg law, whereas Ostendorf relies on that decision. The second circumstance contemplated by Article 5(1)(c), as explained by the court in Lawless, is one where the person is being detained to prevent him from committing an offence. The only “trial” that could be in view in that circumstance would be a hearing before a “competent legal authority” to see whether the detention should continue or not.

The Court comes back to this issue at paragraph 82. We repeat the important statement made there:

“Under its long established case law the second alternative of Article 5(1)(c) therefore only governs pre-trial detention and not custody for preventive purposes without the person concerned being suspected of having already committed a criminal offence”.

With respect, this appears to be inconsistent with what the Court had said in Lawless at paragraph 14, where it emphasised that the purpose (of bringing the detainee before the competent legal authority) had to be present from the start “irrespective of whether such a person is a person who is reasonably suspected of having committed an offence or is a person whom it is reasonably considered necessary to restrain from committing an offence…”. In other words, there were two possible situations; the first, where there was reasonable suspicion and the second where there was not but it is reasonably necessary to detain him. The same formulation is used at paragraph 50 of Steel. In Brogan the applicants had been arrested on suspicion of an offence, but the Court emphasised that the purpose of arrest or detention was to bring the person before the competent legal authority, irrespective of the state of the evidence against him, provided the arrest and detention was in good faith and for the purpose of furthering the investigations which had reasonably grounded their arrest in the first place: paragraphs 52-53.

Paragraph 85 emphasises the requirement in Article 5(3) that anyone detained under Article 5(1)(c) must be brought promptly before a judge “…and shall be entitled to a trial within a reasonable time or to release pending trial”. The Court appears to assume that the whole process of bringing the detainee before the judge is therefore directed towards a trial “on the merits”. This would appear to be contrary to what the court said at paragraph 53 of Brogan, which expressly accepted that there does not have to be a charge either from the outset or when the detainee is before the competent judicial authority, for Article 5(1)(c) purposes.

The Court then suggests in paragraph 86 that the second category of Article 5(1)(c) is intended so that a person who has carried out “punishable preparatory acts to an offence” can be detained to prevent him from committing “the offence”. That person may then be brought before a judge and be put on trial for the purposes of Article 5(3) in respect of the “punishable preparatory acts to the offence”. This cannot be a correct analysis so far as English law is concerned. If a person has “committed a punishable act” preparatory to an offence which is capable of being the subject of a “criminal trial” then under English law he will have committed an “offence” and so, given that the authorities are, on the example given, aware that he has done this, he could be arrested for having committed such an offence – viz. the preparatory one. Thus it would fall within the first of the three situations dealt with by Article 5(1)(c). No previous ECtHR decision to which we have been referred gives this rationale for the second category within Article 5(1)(c).

On the basis of this analysis we conclude that, following Ostendorf, there is a measure of “clear and constant” Strasbourg authority on the specific effect of Article 5(1)(c). First, Article 5(1)(c) deals with three “categories” that are distinct. Secondly, there is a requirement that, under whichever category of Article 5(1)(c) a person is arrested and detained, that arrest and detention has to be (at the time of the arrest/detention) “with the purpose of bringing him before the competent legal authority”. To that extent, we respectfully disagree with the Divisional Court’s conclusion (at paragraph 184) which (on the basis of more limited submissions and citation of authority than we have received), although it followed Nicol, was not justified in marginalising Lawless on this point on the ground of its relative antiquity.

On the other hand, we are wholly unconvinced that there is “clear and constant” authority for the proposition that Article 5(1)(c) only permits arrest and detention where there is, from the outset, an intention to bring the detainee before a court on suspicion of his having committed a criminal offence, as Jecius and Ostendorf suggest. Such a proposition is manifestly inconsistent with Lawless (paragraph 14) and Nicol (page 9). It also lives uneasily with Brogan and Steel v United Kingdom (1999) 28 EHRR 603. For these reasons we would be inclined not to follow Ostendorf on this point unless we are compelled to do so. Not only does it appear to have been decided on the basis of a somewhat limited and selective consideration of previous decisions of the Court. If followed, it would effectively excise lawful arrest and detention when “it is reasonably considered necessary to prevent his committing an offence” from Article 5(1)(c). There is no authority for the proposition that its scope is limited to a refusal of post-charge bail on the ground of likelihood of committing further offences whilst on bail. That would be a very strained construction.

Section 2(1) of the Human Rights Act 1998 states that a court “determining a question which has arisen in connection with a Convention right” must take into account any “judgment, decision, declaration or advisory opinion of the European Court of Human Rights…so far as, in the opinion of the court…it is relevant to the proceedings in which that question has arisen.” Given that the claim we are concerned with on this appeal is whether the appellants’ rights under Article 5(1) have been breached by a public authority, or whether the public authority can rely on Article 5(1)(c) or (b) for their arrest and detention, the correct construction of Article 5(1)(c) is one of two central questions we have to answer, so we are bound to take into account all the ECtHR decisions we have attempted to analyse. The problem, as we have attempted to show in our analysis above, is that those decisions do not create a clear and consistent line of authority on the ambit of the second category of Article 5(1)(c), despite the repeated statements of the ECtHR that they are following existing case law. In those circumstances, given that Ostendorf is the most recent decision and that it asserts that it is simply following a long established line of Strasbourg case law, what is this court to do?

In R (Ullah) v Special Adjudicator [2004] 2 AC 323 Lord Bingham of Cornhill stated that, whilst ECtHR case law is not binding on the English courts, it had been held by the House of Lords in R(Alconbury Developments Ltd) v Sec of State for the Environment, Transport and the Regions [2003] 2 AC 295 (at paragraph 26) that the courts should, in the absence of some special circumstance, follow any “clear and constant jurisprudence”. Lord Bingham said that this “reflected the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court” (our emphasis). Therefore, it followed from the duty imposed by section 2(1) of the Human Rights Act that a national court “should not without strong reason dilute or weaken the effect of the Strasbourg case law”.

More recently, it has been said that this domestic duty to “take into account” Strasbourg case law does not mean the inexorable application of a Strasbourg decision in a domestic case. Thus, in R v Horncastle [2010] 2 AC 273, Lord Phillips of Worth Matravers PSC said (at paragraph 11):

“The requirement ‘to take into account’ the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between the domestic court and the Strasbourg Court. This is such a case.”

It is apparent that two inhibitions are contained in that passage. First, the normality of applying principles that are “clearly established by the Strasbourg Court” leaves open the situation where such principles are not clearly established. Secondly, even where the Strasbourg jurisprudence may be characterised as “clear” there is the further inhibition which can arise from “concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process”.

This approach was endorsed by Lord Neuberger MR in giving the judgment of the Supreme Court in Manchester City Council v Pinnock (Sec of State for Communities and Local Government intervening) [2011] 2 AC 104 at paragraph 48. He stated:

“Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line.”

The specific question of what approach the English courts should take if it appears on analysis that there is no “clear and constant” line of authority in the Strasbourg case law has been dealt with in two further decisions of the Supreme Court. In R (Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1,the first issue was whether the deceased soldier, who had died on active service in Iraq, was protected by Convention rights. This turned on the territorial ambit of the Convention, a topic on which there was some Strasbourg case law. The majority of the Supreme Court held that the soldier was not protected by the Convention. Lord Mance JSC, who was in the minority on this point, stated at paragraph 199 that it was the duty of the national courts to:

“…give effect to the domestically enacted Convention rights, while taking account of Strasbourg jurisprudence, although caution is particularly apposite where Strasbourg has decided a case directly in point or, perhaps, where there are mixed messages in the existing Strasbourg case law and, as a result, a real judicial choice [has] to be made there about the scope or the application of the Convention”.

The second case is Ambrose v Harris (Procurator Fiscal) [2011] 1 WLR 2435, in which Lord Dyson JSC said that he regarded Lord Mance’s approach as correct: see paragraphs 100 - 105. The issue in that case was whether an accused’s right to a fair trial under Article 6(1) of the Convention would be breached if evidence was adduced at the trial of statements made by him in answer to questions from the police after caution but before arrest and in the absence of legal advice. The debate in the Supreme Court was whether the ECtHR jurisprudence was clear on the accused’s Article 6(1) rights in those circumstances. Lord Dyson held, following Lord Mance’s approach, that in that case there was a “real judicial choice to be made”: see paragraph 104.

We should also refer to two very recent decisions of the Supreme Court in which further statements have been made about the relationship between the ECtHR and the UK courts in relation to the latter courts’ duty to enforce Convention rights. The first is R(Osborne) v Parole Board [2013] 3 WLR 1020, which raised the questions of when an oral hearing of the Parole Board was required and whether the lack of such a hearing put the Parole Board in breach of its duty of procedural fairness and thereby in breach of Article 5(4) of the Convention. Lord Reed JSC, giving the judgment of the court, pointed out, at paragraph 55, that the guarantees set out in the substantive articles of the ECHR were expressed “at a very high level of generality”, which meant that the guarantees had to be fulfilled at a national level “through a much more substantial body of much more specific domestic law”. Article 5 was implemented through, amongst other things, domestic criminal procedural law. In paragraph 56, Lord Reed stated that “the values underlying both the Convention and our own constitution required that Convention rights should be protected primarily by a detailed body of domestic law”. In paragraph 57 Lord Reed noted that although the Human Rights Act gave domestic effect to the Convention guarantees and required public authorities to act compatibly with them and the courts to take account of judgments of the ECtHR, the Act did not supersede “the protection of human rights under the common law or statute, or create a discrete body of law based on the judgments of the European Court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the [Human Rights] Act when appropriate”.

In R(Chester) v Secretary of State for Justice [2013] 3 WLR 1076, the issue was whether the Supreme Court should give effect to rulings of the Grand Chamber of the ECtHR that a general ban on convicted prisoners voting was incompatible with Article 3 of the First Protocol to the ECHR as scheduled to the Human Rights Act and therefore grant a declaration of incompatibility in relation to section 3(1) of the Representation of the People Act 1983 and section 8 of the European Parliamentary Elections Act 2002. In considering the question of whether the Supreme Court should follow the Strasbourg case law on the issue of voting rights for convicted prisoners, Lord Mance JSC (with whom Lord Kerr, Lord Hope and Lord Hughes agreed) referred to Lord Neuberger’s summary of the position in his judgment in the Manchester City Council case, referred to above. Lord Mance then said, at paragraph 27:

“In relation to authority consisting of one or more simple Chamber decisions, dialogue with Strasbourg by national courts, including the Supreme Court, has proved valuable in recent years. The process enables national courts to express their concerns and, in an appropriate case such as R v Horncastle, to refuse to follow Strasbourg case-law in the confidence that the reasoned expression of a diverging national viewpoint will lead to a serious review of the position in Strasbourg. But there are limits to this process, particularly where the matter has been already to a Grand Chamber once or, even more so, as in this case, twice. It would have then to involve some truly fundamental principle of our law or some most egregious oversight or misunderstanding before it could be appropriate for this Court to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber level.”

Lord Sumption JSC gave a separate judgment (with which Lord Hughes agreed). He stated (at paragraph 120) that, given the structure of the Human Rights Act 1998, it followed that “the interpretation of the Convention by the Strasbourg court takes effect in English law only by decision of the English courts”. The wording “taking into account” in section 2(1) was, he said, “clearly less than an absolute obligation” and the treaty obligation in Article 46 (1) of the Convention is not a part of the Convention to which the Human Rights Act gives effect.

Lord Sumption then noted, however, that for many years English courts have interpreted statutes and developed the common law so as to achieve consistency between the UK domestic law and its international obligations and the same principle must apply to the Human Rights Act itself. Accordingly, in interpreting the statutory obligation in section 2(1) of that Act that English courts will “take into account” decisions of the ECtHR when considering questions concerning the Convention, Parliament must have had in mind the fact that the UK is under an international obligation, by Article 46(1) of the Convention, to “abide by the final judgment of the Court in any case to which they are parties”. Lord Sumption said that it followed from this that:

“…a decision of the [ECtHR] is more than an opinion about the meaning of the Convention. It is an adjudication by the tribunal which the United Kingdom by Treaty agreed should give definitive rulings on the subject. The courts are therefore bound to treat them as the authoritative expositions of the Convention which the Convention intends them to be, unless it is apparent that [the ECtHR] has misunderstood or overlooked some significant feature of English law or practice which may, when properly explained, lead to the decision being reviewed by the Strasbourg court”.

Lord Sumption next quoted the passages from Horncastle and Manchester City Council to which we have referred above and concluded that “the exceptionally delicate issues” presented to the Supreme Court in its current case required consideration of “the basis on which the Strasbourg court approached the relevant features of our domestic law”.

What conclusions can be drawn from this domestic case law on how English courts should deal with Strasbourg decisions on the interpretation of the ambit of a provision of the Convention itself, as opposed to an ECtHR decision on how a provision in the Convention is to apply to particular factual circumstances? We think that the following principles are clear: (1) It is the duty of the national courts to enforce domestically enacted Convention rights. (2) The ECtHR is the court that, ultimately, must interpret the meaning of the Convention. (3) The UK courts will be bound to follow an interpretation of a provision of the Convention if given by the Grand Chamber as authoritative, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which, properly explained, would lead to that interpretation being reviewed by the ECtHR when its interpretation was being applied to English circumstances. (4) The same principle and qualification applies to a “clear and constant” line of decisions of the ECtHR other than one of the Grand Chamber. (5) Convention rights have to be given effect in the light of the domestic law which implements in detail the “high level” rights set out in the ECHR. (6) Where there are “mixed messages” in the existing Strasbourg case law, a “real judicial choice” will have to be made about the scope and application of the relevant provision of the Convention. We note that in Ostendorf, the Strasbourg Court was plainly not concerned with the English domestic processes of arrest and detention; however, it was concerned with them in Steel, Brogan and Nicol.

With these points in mind and having noted that Ostendorf is neither a decision of the Grand Chamber, nor is it indicative of “clear and constant” Strasbourg jurisprudence, save that the arrest or detention must, in all three categories set out in Article 5(1)(c) be “effected for the purpose of bringing him before the competent legal authority”, we have decided that we are not bound to follow that decision of the ECtHR. We will adopt the interpretation of the wording of Article 5(1)(c) that we reached without regard to the Strasbourg case law, which, in our view, is supported by and is consistent with the Strasbourg decisions in Lawless, Brogan and Steel and (save for the “purpose” requirement) Nicol.

It follows from that interpretation of Article 5(1)(c) that there are two issues to consider. First, were the arrests and detentions in the present case permissible on the ground that it was “reasonably considered necessary to prevent [the appellants from] committing an offence”? Secondly, at the outset of deprivation of liberty, were the relevant police officers effecting the arrests for the purpose of bringing the persons in question before the competent legal authority when it was considered reasonably necessary in order to prevent them from committing an offence.

There is no doubt that, in each case, the Divisional Court was justifiably satisfied that the arresting officers had reasonable grounds for believing that a breach of the peace was imminent. That is one of the reasons why the case based on domestic law failed and has not been appealed. In the context of the second category of Article 5(1)(c), the effect of that conclusion by the Divisional Court is that all the arrests and detentions must also have been “reasonably considered necessary to prevent [the appellants from] committing an offence”.

Therefore the critical question is whether the deprivations of liberty were “effected for the purpose of bringing [those arrested] before the competent legal authority”, namely the magistrates’ court. The Divisional Court did not make an unequivocal finding about that because it did not consider that the words applied to a preventative deprivation of liberty. However, it did proceed to refer (at paragraph 185) to Brogan and saw “some force” in an alternative submission that that case might assist in enabling the police to satisfy the test if, contrary to its view, it was necessary to do so.

In our judgment, the fact that none of the appellants was taken before the magistrates’ court and all were released a few hours later does not necessarily resolve these appeals in their favour. Brogan makes this clear (paragraph 53, set out at paragraph 52 above). Moreover, it is a proper and, without more, an irresistible inference that the officers who arrested and detained the appellants appreciated that, if only by reference to domestic law, the appellants could not be lawfully detained beyond the point at which it was reasonably practicable to take them before the magistrates’ court. In other words, the police officers must have realised that it would not be possible to prolong the detention for very long without taking the appellants before the magistrates’ court.

Two further inferences seem to us to be justified. First, given the dynamics on the ground in central London on 29 April 2011, it would not have been reasonably practicable to have taken the appellants before the magistrates’ court before they were in fact released. Secondly, if events surrounding the Royal Wedding had deteriorated badly (as, happily, they did not) it could have become necessary to detain the appellants for longer, up to the point where it would have become necessary to take them before the magistrates’ court. In the event, that did not happen. However, it seems to us that, applying the approach in Brogan to the circumstances of this case, we can safely conclude that the appellants were arrested and detained “for the purpose of bringing [them] before the competent legal authority”, if that were to become necessary, so as to prolong detention on a lawful basis.

On this basis, we do consider that there is no significant practical difference between the application of the common law as propounded in Williamson and the application of Article 5(1)(c) in relation to arrest and detention when such steps are reasonably considered necessary to prevent the commission of an offence. Indeed, we would be surprised if there were to be such a difference. The aim of both is to prevent the arbitrary use of police powers. Both prohibit internment or anything like it in the sense in which that word is correctly used. In Austin v United Kingdom(2012) 55 EHRR 14, (the “kettling” case which involved a restriction rather than a deprivation of liberty), the Strasbourg Court said (at paragraph 56):

“Article 5 cannot be interpreted in such a way as to make it impractical for the police to fulfil their duties of monitoring order and protecting the public, provided they comply with the principle of Article 5 which is to protect the individual from arbitrariness.”

We consider our analysis of the application of Article 5(1)(c) to the facts of this case to be faithful to that statement. Accordingly, the appeals must be dismissed.

We should record that we have considered whether, the Divisional Court having omitted to make a finding about whether the arrests and detentions had been affected for the purpose of bringing the appellants before the competent legal authority, we should remit the case to that Court. We have decided that that is unnecessary. The appellants persuaded the Divisional Court (contrary to the submission made on behalf of the respondent) that this case should be considered as a judicial review rather than be relisted as a witness action. Whatever might have emerged in cross-examination of the police officers, we have to deal with the evidence on paper. We are satisfied that our approach to the facts is permissible and appropriate in the circumstances.

As we are satisfied that the arrests and detentions of the appellants were lawful by reason of Article 5(1)(c), it is not strictly necessary for us to address Article 5(1)(b) but we shall do so briefly. The Divisional Court (paragraph 187) considered that the wording of Article 5(1)(b) “seems ill-suited on its face to cover arrest and detention for the purpose of preventing a future, albeit imminent, breach of the peace” and that Article 5(1)(c) appears “far better suited to cover that situation”. It further considered that, even if Article 5(1)(c) does not cover the situation, “it would be a little surprising if Article 5(1)(b) could be relied on instead”.

We repeat the words of Article 5(1)(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.”

Ironically, Ostendorf has strengthened the respondents’ case on Article 5(1)(b).

As the Strasbourg Court observed (at paragraph 90) the law permits the detention of a person to compel him to fulfil “a specific and concrete obligation incumbent on him”. The following passages demonstrate the approach of the Court to the facts before it:

“93.

... the ‘obligation’ under Article 5(1)(b) must be very closely circumscribed. It follows that the obligation here at issue, namely, to keep the peace by not committing a criminal offence can only be considered as ‘specific and concrete’ for the purposes of that provision if the place and time of the imminent commission of the offence and its potential victim(s) have been sufficiently specified. The Court is satisfied that that this was the case here. The applicant was to be prevented from arranging a brawl between Bremen and Frankfurt am Main hooligans in the hours before, during or in the hours after the football match on 10 April 2004 in the city of Frankfurt or its vicinity and from committing offences including bodily assaults and breaches of the peace during such a brawl.

94.

… in cases in which this type of obligation is at issue, it is sufficient if the applicant has taken clear and positive steps which indicate that he will not fulfil his obligation. The Court considers that this requirement bears special importance in the context of a duty to refrain from doing something such as the one in issue here, as distinct from a duty to perform a specific act (such as leaving a place, appearing in court, giving evidence as a witness or disclosing one’s identity). In order to ensure, in accordance with the purpose of Article 5, that individuals are not subjected to arbitrary detention in such circumstances, it is necessary, prior to concluding that a person has failed to satisfy his obligation at issue, that the person concerned was made aware of the specific act which he or she was to refrain from committing and that the person showed himself or herself not to be willing to refrain from so doing.

95.

In the present case, the applicant was ordered by the police, prior to his arrest, to stay with the group of football supporters with whom he had travelled from Bremen and who were to be escorted by the police to the football stadium. He was further warned in a clear manner of the consequences of his failure to comply with that order as the police had announced that any person leaving the group would be arrested. Moreover, the group had already been escorted on their train trip from Bremen to Frankfurt and had been searched at Frankfurt am Main central station and had been found to be in possession of instruments typically used in hooligan brawls. The Court considers that, by these measures, the applicant had been made aware of the fact that the police intended to avert a hooligan brawl and that he was under a specific obligation to refrain from arranging and/or participating in such a brawl in the city of Frankfurt or its vicinity on the day in question …”

Following further analysis and having satisfied itself (at paragraph 101) that a due balance was being struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty, the Court held that the detention of the applicant for four hours was no longer than was necessary in order to prevent him from taking further steps to organising a hooligan brawl. His deprivation of liberty was therefore justified under Article 5(1)(b).

It is plain that such an approach has the potential to permit reliance on Article 5(1)(b) in circumstances such as those which existed in central London on 29 April 2011. No doubt if Ostendorf had been decided before the hearing in the Divisional Court, there would have been an investigation as to whether, in particular, each appellant had been made aware of “the specific act which he or she was to refrain from committing and that the person showed himself or herself not to be willing to refrain from so doing”. Although there was no such investigation, with an eye to Ostendorf, Mr Grodzinski points to a finding in paragraph 172 of the judgment of the Divisional Court (where it was considering the proportionality of the arrests and detentions). The Court said:

“In the case of none of these claimants, on the basis of the information that the officers had at the time of the arrests, could there be any reasonable confidence that they would comply with a mere request to desist from conduct likely to give rise to a breach of the peace”

This was said in the context of rejecting submissions that, for example, the Starbucks claimants should have been asked to change their clothing or remove their make-up and that the second Zombie claimant should have been asked to hand over a flyer in her possession.

As there was no focus in the evidence or in the decision of the Divisional Court on whether each appellant had been made aware of the specific act which he or she was to refrain from committing or on whether in the case of each appellant there had been evidence of willingness to refrain from so doing, we do not think it is possible for us to apply the Ostendorf approach to this case at this stage. It might not produce the same results in relation to all appellants.

In the circumstances, whilst we consider that the approach in Ostendorf to Article 5(1)(b) might facilitate a route to a finding of lawfulness in relation to arrests and detentions in some circumstances, we prefer to say no more about it in this case. It is quite likely that, if its potential is to be seized upon, it will be more appropriate for it to be litigated in a witness action.

For the reasons we have given, these appeals are dismissed because we are satisfied that the arrests and detentions of the appellants were lawful pursuant to Article 5(1)(c).