Austin & Anor v The Commissioner of Police of the Metropolis

OXFORD CIRCUS MAY DAY 2001

Oxford Circus is the junction where Oxford Street crosses Regent Street in the centre of London. Regent Street runs South through Piccadilly Circus, to Pall Mall. Pall Mall leads East into Trafalgar Square. From Trafalgar Square the Strand runs East towards the City of London, and Whitehall runs South past Downing Street to Parliament Square. All of these streets are in the City of Westminster, in which the centre of Government of England is located, and in which the main shops of London are to be found. From Parliament Square to Oxford Circus is an easy half hour walk. Oxford Street and Regent Street are two of the main shopping streets. Although quite wide by London standards, they are narrow by the standards of most capital cities, about 25m across at the widest, including the pavements. They can take only two lanes of traffic in each direction. The pavements on either side are normally crowded with shoppers. It is the City of London that is associated most with finance and capitalism, while the shopping streets of Westminster are full of clothes and other consumer goods. A high proportion of these goods are made in the third world. To the North East of the Circus is Niketown, which sells Nike sportswear and shoes made mainly in the third world. To the North West and South West are Hennes and Mauritz or H&M and Benetton, which sell affordable women’s clothes.

On 1^st May 2001, May Day, (“MD01”) at about 2pm a crowd of demonstrators marched into Oxford Circus from Regent Street South. Later in the afternoon others entered or tried to enter from all four points of the compass, so that by the end of the day some 3000 people were within the Circus. In addition there were crowds of thousands outside it to the North of Oxford Street and on the West side in Oxford Street itself. The organisers had deliberately given no notice to the police that this would happen at 2pm. They had refused to co-operate with the police in any way at all. The organisers’ publicity material led the police to expect a gathering in Oxford Circus at 4pm. The police had been given no forewarning at all of any march or procession, or of the route by which people were to arrive in Oxford Circus. 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 2pm onwards that day. The Claimants were not organisers, and they and others suffered the consequences.

The crowd who entered the Circus at 2pm were, for the most part, prevented from leaving. The police stood in lines across the exits to the junction. From about 2.20pm people could leave only with the permission of the police. Some other crowds entered the junction through the police lines during the afternoon. People were prevented from leaving, many of them for a period of over 7 hours.

May Day is not a public holiday in England. The disruption to shops, shoppers and traffic by the events on that day in 2001 was enormous. A number of people who were not demonstrators were caught up within the police cordons. Some were released through the cordon. Others were not. It was a wet and chilly afternoon. Oxford Circus has a diameter of about 50 metres, all of which is taken up by the roads, the pavements, or the four entrances to the underground. There is no free space for people to congregate.

Political demonstrations in London are sometimes directed to a specific target, such as an embassy, which dictates where such demonstrations are to take place. Otherwise, processions and demonstrations normally begin or end in one of a small number of areas where there is space for a crowd, such as Hyde Park, Trafalgar Square or Parliament Square. Oxford Circus is not one of these places.

The physical conditions in Oxford Circus were for a short period quite acceptable. Everyone is accustomed to being held up when travelling, or attending some public event outdoors, whether for entertainment or for any other reason. But as time passed the conditions became increasingly unacceptable. The Claimants do not claim that they suffered any personal injury, or advance any claim of that kind. No one was seriously hurt. But the position came very close to causing injury to some of those attending, and policemen were injured.

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. Ms Austin had an 11 month old baby whom she needed to collect from the child minder at 4.40pm. It is likely that in such a large crowd there will have been other women with commitments such as hers. That situation is a serious interference with human dignity. I have heard no evidence that anything worse than that occurred, but it would not be surprising if much worse things had occurred, in terms of physical suffering. It was not, of course, suggested that temporary toilets should have been set up in Oxford Circus. The point the Claimants make is that that the place is so unsuitable for holding a crowd that they should have been released before these problems became intolerable.

Whether anything else about what happened in Oxford Circus was acceptable is another matter. The events were broadcast in the news media. That such events should take place in London, involving thousands of people unable to leave the police cordons, is a matter of public concern. It calls for an explanation. That is why these proceedings have been brought.

While this is a private law claim for damages, and not, as similar cases have been, an application for judicial review of the police decisions, the desire for compensation is not Ms Austin’s primary motivation for bringing the claim.

This judgment deals with issues of importance which were left undecided in the judgment of the Court of Appeal delivered on 8 December 2004 in another case relating to a political demonstration which was brought by way of judicial review. In words adapted from those of the Court in that case (R (Laporte) v Chief Constable of Gloucestershire Constabulary [2004] EWCA Civ 1639; [2005] 1 All ER 473 para [1], the issues relate to the ability of the police to take action to avoid a breakdown in law and order as a result of a demonstration. This still depends, at least in part, on the police’s duty, which they share with members of the public, at common law to take action to prevent breaches of the peace. The police also have a right, and perhaps a duty, to take measures short of arrest, sometimes called self-help, when there is unlawful conduct which does not amount to a breach of the peace. The limits on these common law powers are by no means clear. The issue also depends on the proper interpretation of the European Convention on Human Rights, which is also unclear. This makes it difficult for the police to know what steps they can and cannot take, without unlawfully infringing the civil rights of individual members of the public, to avoid losing control of demonstrations. When they do lose control of a crowd there is the consequential risk of personal injuries or death, and damage to property.

The facts of this case are quite exceptional. Never before, or since, 1^st 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 CLAIMS

This matter comes before the court as two claims in private law for false imprisonment. Each claimant also advances a claim under the Human Rights Act 1998 s.7 for breach of the right to liberty guaranteed by Art 5 of the European Convention on Human Rights. HRA s.6 provides that it is unlawful for a public authority (which of course includes the Commissioner) to act in a way which is incompatible with a Convention right (subject to exceptions which are not relevant to this case). Ms Austin initially advanced a claim under that section for interference with her rights of freedom of expression and assembly (Arts 10 and 11), because she was engaged in a political demonstration that day. Mr Saxby had come to London on his employer’s business, not to demonstrate. Both sue the defendant as the senior officer of the Metropolitan Police Service (“MPS”). He is responsible for the policing of this area of London. They claim damages for distress. In addition they claim exemplary damages on the basis that “the officers acted in an arbitrary, oppressive and unconstitutional manner without regard to the claimant’s well-being, rights or dignity and without regard to the requirements of lawful detention”. This claim has been expressly reserved by Mr Starmer QC in his final speech. But he recognised that he could not advance it with any force, nor even suggest a figure. The reason for this was that it was not suggested to any of the police officers who gave evidence that he had acted in bad faith, or was being dishonest. The claim ought to be abandoned, and I treat it as being.

At one point it appeared that the rights of freedom of assembly and of expression might be at the forefront of the case. In fact, Mr Starmer QC has placed little emphasis on these rights. He has advanced this case as one about liberty. The reasons why the rights of freedom of expression and of assembly do not figure largely will be explained below. Until 3.30pm on 1st May Ms Austin had been making speeches through a megaphone on political topics. After that time, while she was unable to leave Oxford Circus, she made speeches through her megaphone giving advice and comfort to the crowd around her.

Of the thousands of people who waited in Oxford Circus that day, some 150 have given notice of, or commenced, legal proceedings for damages against the Commissioner. During her evidence Ms Austin said that she and those accompanying her that day had collected on scraps of paper the contact details of many members of the crowd, but those papers have been destroyed by her, and there has been no investigation in this trial of whether the claimants other than herself were marshalled by Ms Austin or acted spontaneously.

All of these claims are publicly funded. It has been arranged that the two cases of Ms Austin and Mr Saxby be tried first. They are not strictly test cases. But the decisions on the issues that arise in these two cases may enable most, if not all, of the other claims to be settled by agreement. In this technical respect the present claims resemble those brought against the police arising out of the Hillsborough disaster (Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 392F). On 15 April 1989 the police were responsible for crowd control at a football match. They allowed an excessively large number of intending spectators to enter the ground and in the resulting crush 95 people were killed and over 400 physically injured. All these events were broadcast live on television. The Chief Constable admitted liability in negligence for these deaths and physical injuries. The conduct of the police was severely criticised by the late Lord Chief Justice who, as Taylor LJ, conducted a public enquiry: see The Hillsborough Stadium Disaster 15 April 1989 Inquiry by the Rt Hon Lord Justice Taylor, Interim Report, CM 765. He found that responsibility for controlling crowd behaviour, while generally a police responsibility in relation to public thoroughfares into a football ground, may also be accepted by the police within the grounds, and that that was the position at Hillsborough (Report para 168). He found that control was lost in circumstances which should have prompted those officers in command to take precautions against such a crush as occurred. The measures which the police should have taken included earlier control of entry to the ground to prevent the crush, and, once the crowd had built up outside the ground, controlled filtering. Because they had not taken the necessary precautions, they lost control of the crowd and faced a serious danger of death or injuries. They then had no alternative but to open the gates through which the crowd was pressing. The police had failed to provide for controlling a concentrated arrival of large numbers, should that occur in a short period (Report paras 223-228, 268, 273). Recommendation 33 was that there should be a public address system for the police to communicate with people inside and outside the ground.

Some of those in Oxford Circus feared a similar crush at times and the evidence is that there were a number of references to Hillsborough by members of the crowd in Oxford Circus. Both the Claimants referred to it in evidence. A list of public enquiries into police crowd control was also in the forefront of the minds of the police planning MD01 (that being the term used by the police to refer to this event). Crushing is one of a number of dangers referred to in the printed forms issued to every senior police officer that day for the purpose of recording his decisions. Happily there was no loss of life, and very limited numbers of personal injuries on MD01. Those most at risk were not those members of the crowd who were non-violent, but the police officers, against whom the violent members of the crowd directed missiles and force in various different ways. But it is impossible to understand why the police did what they did that day without bearing in mind the risks that arise when the police are confronted with a crowd. For the police to do nothing can be as dangerous as to do the wrong thing.

Mr Speed, one of the expert witnesses, referred in his evidence to the death of Kevin Gately in a demonstration in Red Lion Square: see The Red Lion Square Disorders of 15 June 1974 Report of the Inquiry by the Rt Hon Lord Justice Scarman OBE Cmnd 5919 (which I refer to as Lord Scarman’s Report). It is helpful to see the words of Lord Scarman at para 40 on how that death happened:

“… there occurred the second major assault on the police cordon. Its onrush probably carried Gately with it. Something happened: either he stumbled and fell or a flying stave or pole caught him a glancing blow behind his left ear. … there occurred some unnoticed minor accident – a fall or an apparently minor glancing blow: unfortunately it set up, as such minor injuries sometimes do, a fatal brain haemorrhage… those who started the riot carry a measure of moral responsibility for his death: and the responsibility is a heavy one.”

THE CONTENTIONS OF THE PARTIES

There is no dispute that the Claimants were held within the police containment or cordon from about 2.20pm, when it became absolute, and 9pm and 9.30pm, when Mr Saxby and Ms Austin were respectively released into North Regent Street. And it is common ground that the burden lies on the Commissioner to justify that detention, if he can (subject to one point discussed below on the exercise of discretion).

The words “containment” and “dispersal” were used frequently in the contemporaneous documents and the evidence in this case. They are words with a range of meanings. Where precision is required they are best avoided. Containment can mean any deployment of police officers which involves placing a cordon around a group of people, or across the exits of a place in which a group of people have assembled. It has a number of possible uses. It can keep disorder as a localised incident, or buy time for extra resources to be brought to the scene. It can be used to gather intelligence or evidence. It can be pre-planned to minimise disruption in a particular place, and to protect property. It can assist in maintaining control of a crowd, and in some cases, to protect them. But it can itself demand substantial police resources and be difficult to maintain without confrontation. The cordon may be more or less permeable: police officers may stand shoulder to shoulder, or at some distance from one another. Where there is a cordon of officers shoulder to shoulder, that is referred to as an absolute cordon.

Dispersal may be a spontaneous action of a crowd, or it may be the objective of police tactics. When encouraged or forced by the police it may be done with a higher or lower profile, and be either more or less confrontational. It may initially require less police resources than a containment. A disadvantage of dispersal is the difficulty which the police have to control the crowd both during the dispersal, and once they are dispersed. Where there are inadequate exit routes for a crowd, or where the crowd remains disorderly, dispersal can be unsafe unless controlled by the police. Where the police have contained a crowd, there may be a need for controlled dispersal, or slow dispersal, as it is sometimes called. One reason why the need for this may arise is to ensure the safety of the crowd, and the protection of others from the crowd once they are dispersed. A controlled dispersal also enables officers to arrest members of the crowd, where they have justification for doing so. This may be safer and more effective than attempting to arrest individuals while they are still part of and surrounded by a crowd. A controlled dispersal also enables police officers to exercise any powers of stop and search which they may have, and to gather evidence, for example by photographing members of the crowd as they are dispersed.

The justification, as summarised in the Commissioner’s Defences to these two claims, is that the detention or containment:

Central to the Commissioner’s case is the contention that as soon as the cordon became absolute plans were already being prepared for the release of the crowd North into Regent Street, that being the only exit route which would not take those released into a street full of well known shops and commercial premises. In other words, the object of the detention was to carry out a controlled release of the crowd as soon as it was practical and safe to do so. The object was not to hold the crowd where they were for any other reason. The explanation advanced for why this release did not take place as planned was partly that it was due to the violent behaviour of a minority within the crowd itself, but mainly it was due to the much more violent behaviour of other groups who converged on Oxford Circus and engaged in serious confrontations with the police.

In particular, it is pleaded at para 75 of the Defences that:

“The police attempted to ensure, as best they were able in the circumstances, that those persons caught up in the containment who posed no threat to public order (ie non-protesters and protestors with wholly peaceable motives) would be filtered out of the containment through police lines as soon as practicable. This filtering process was put in place as soon as practicable after the containment was imposed. However, for logistical and practical reasons such filtering could not be, and was not, instantaneous, continuous or uniformly applied across all cordons. Delays in filtering were an inevitable consequence of the scale of the police operation, its inherent volatility, and the obvious threat of deception by those purporting to be ‘innocent bystanders’. The police had intelligence to suggest that protesters were being encouraged to pretend to be tourists or office workers”.

In his opening skeleton argument at para 359 Mr Beggs put the submission as follows:

“In the circumstances prevailing on MD01, where it was impracticable to differentiate between the members of, and reasonably necessary to contain, a group in order to prevent a breach of the peace, the detention was by reason of the Claimants’ own conduct (their presence in Oxford Circus) because at the time of the containment the police did not know (and had no reasonable means of knowing) which of the persons so contained posed an individual threat.”

Mr Beggs also reminded me of the words of the European Court of Human Rights (“the Strasbourg Court”) in Sporrong v Sweden (1983) 5 EHRR 35 para 69. There the Court refers to “a fair balance … between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights” and then states that “The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of Art 1 [ie of Protocol No. 1]”. He submits that if on the facts of a particular case it is shown that detention was necessary to prevent an imminent threat of serious public disorder and that there were no other reasonable means of dealing with the problem, or that it was reasonable for the police in their discretion so to conclude, then it would not be in accordance with Sporrong to hold that detention for, say, a few hours breaches Article 5 because it was not for the purpose of bringing a person before a court.

Regrettably there was no Reply served. There should have been one, specifically admitting or denying the allegations in the Defences, and giving the facts on which the Claimants relied (as is now required in defamation actions where there is a defence of truth or of fair comment: see CPR Part 53 Practice Direction para 2.8). So it was not until trial that it became apparent what the real issues were. On Friday 28^th January 2005, the ninth day of the trial, I gave permission for service of a Reply to set out the case that had by then already been made by Mr Starmer QC. In summary that case is that it was not necessary to impose or continue the containment, or that if it was, then that arose out of the negligence of the police. The negligence alleged is not a separate cause of action. It is an answer to the case on necessity. The case is that there were alternative and less restrictive measures open to the police. The main point made was that they should have prevented the crowd reaching Oxford Circus and that they should not have added new groups to the original group during the afternoon. Criticisms are also made of the facilities at Oxford Circus, and of the communications made to the crowd.

The Claimants’ case is not that no breach of the peace was imminent at 2pm. They were not pressing that point, as Mr Starmer QC made clear orally in his closing speech, rightly in my view. The Claimants’ point is that it was not they who were threatening a breach of the peace. They note that there is no clear statement in the Defence of the state of mind of any police officer with regard to either Claimant. It is not said in terms that any police officer suspected either Claimant, at the time, of being about to commit a breach of the peace or any other seriously unlawful act. The Defences do admit, after the event or with hindsight, that in fact neither Claimant was threatening any violence, and that Ms Austin’s protest was to be peaceful. There are statements in the Defence to Ms Austin’s claim to the effect that she made a deliberate decision to attend an unlawful protest which caused obstruction, and that she ought to have known that there was a risk of her liberty being restricted by police officers seeking to prevent violence and maintain public order. Nothing is said along these lines in relation to Mr Saxby.

Mr Starmer QC submitted that the Defences were so clearly defective in this respect that I should decide the case on a preliminary issue, without hearing any evidence. I declined to do this. His point was clear and simple. He submitted that a power to arrest or detain individuals who are neither threatening the peace themselves, nor by their unreasonable actions provoking others to violence, in order to prevent a breach of the peace by others, has never been recognised in English law. He submitted that it could be determined on the agreed facts that the detention of the Claimants for seven hours did amount to a deprivation of liberty with in Art 5(1), whatever the purpose of the police in detaining them. But, he submitted such a power could not be brought within Art 5(1)(c) of the Convention, because whether the purpose was to bring members of the crowd before a court, or simply to prevent them from committing an offence or breaching the peace, in either case, it was members of the crowd other than the Claimants, and Art 5(1)(c) does not provide for that. He cites Lawless v Ireland (No 3) (1961) 1 EHRR 15, paras 13-14 on the requirement that persons detained must be brought before the Court in all cases to which Art 5(1)(c) refers. He cites Guzzardi v Italy (1980) 3 EHRR 333 at para 102, Fox, Campbell and Hartley v UK (1990) 13 EHRR 157 para 34, Berktay v Turkey Application No 22493/93 1^st March 2001 para 199 for the proposition that the suspicion must relate to the person detained and to a concrete and specific offence. If any development of the law was possible so as to permit the detention of one person on account of the actual or threatened wrongdoing of another, then it should only allow for transitory detention, meaning detention for a very short period measured in minutes not hours.

But as the trial progressed, there was increasing focus on the release policy. The Claimants contended that the pleaded case was not supported by the evidence, and that the evidence was inconsistent. It was said that there was in fact no reasonable plan for individuals to be released, that such plan as there was was unclear and not communicated to the officers on the cordon, and that it was ineffective.

There are explanations why, in this case, there is no pleaded case as to the reasons why the officers detained each of the Claimants, and then declined to release them. First, the decision to make the cordons absolute was made in relation to a crowd of about 1500, and no decision was made at that stage which was personal to these Claimants. Second, although each Claimant did ask to be released, neither identified (as they easily might have done) the particular officers whom they approached. Some criticism was directed at Ms Austin for failing to note the numbers of any of the officers she spoke to. There is some force in this criticism of her, given her experience of demonstrations and of litigation against the police. But the case has to be resolved on the evidence as it stands.

So a question arises as to whether the case can turn on the burden of proof. This feature of this case does distinguish it from Laporte. In Laporte the passengers on the bus behaved as one unco-operative group (CA judgment para 31), and the bus driver did not sue. By contrast, each of the Claimants went to the cordon, asking to be released, and was willing to co-operate with the police. However, there are cases on public order offences where the accused is arrested as of one of a large crowd, and Mr Beggs referred me to these.

Mr Beggs submits that if the Commissioner establishes (1) the police had reasonable grounds for believing that a breach of the peace was imminent in or around Oxford Circus at 2pm (there is no issue on honesty or imminence) (2) that it was reasonable for him to contain the crowd at that time, and (3) that the crowd were contained only for so long as was reasonably necessary, then (4) the burden of proof shifts to the Claimants to prove that the police unreasonably refused to release them prior to the time when they were in fact released.

Mr Starmer QC’s primary submission is that the containment did amount to a deprivation of liberty within Art 5(1), and that it cannot be brought within Art 5(1)(c). Alternatively, if the containment was not within Art 5(1), he submits that such state of facts and of mind as might have justified the imposition of the absolute cordon at 2 pm must be shown by the Commissioner to have continued throughout the period before each of the Claimants was released. He says there can be no reliance on the principle of necessity, which applies only to prevent death or serious injury. Subsidiary issues on the continued containment include, he submits, whether less intrusive action could have been taken, whether it was reasonable to contain the whole group initially, and if so whether adequate measures were taken to distinguish those threatening a breach of the peace from those who did not, and whether the s.60 searches should have been conducted, prolonging the containment.

As to Art 5, Mr Beggs submits that it is not engaged, alternatively that Art 5(1)(c) applies.

During the hearing I invited submission on ss12 and 14 of the Public Order Act 1986, in so far as those sections provide for powers in relation to persons taking part in a procession or assembly (as opposed to powers exercisable in advance). Mr Beggs submitted that those powers provide an additional basis upon which the Commissioner can succeed in this case, notwithstanding that no one had them in mind at the time. Mr Starmer QC submits that those powers cannot provide a power to detain people, and cannot be relied on after the event if not relied on at the time.

LIBERTY (FREEDOM FROM ARBITRARY DETENTION)

The Convention rights under the Human Rights Act 1998 include:

Liberty in the sense of freedom from arbitrary detention is one of the most ancient rights recognised by the common law. As Lord Bingham of Cornhill said in A v Home Secretary [2004] UKHL 56:

The right can be traced through the writings of John Locke and William Blackstone from where it came to be in the Fifth Amendment to the Constitution of the United States (“No person shall be… deprived of … life, liberty, or property, without due process of law”) and in other human rights texts, including the Convention.

In addition to the public law remedy of Habeas Corpus by which a detainee may obtain release, a detainee has a right to claim damages. This right has always been available in the tort of false imprisonment, and is now also available under the Human Rights Act 1998 s.6-8, for breach of Art 5. Both these rights are invoked by the Claimants in this case. In each of these claims the claimant has only to prove that he has been “imprisoned” or “deprived of his liberty”, and the burden of proof to justify such detention then falls on the detainer. However, detention is expressed in these different terms, which have different meanings, in the tort of false imprisonment and in Art 5(1).

Release from detention will be lawfully refused, and a claim to damages defeated, on a number of possible grounds. Most obviously these grounds include lawful arrest or conviction for an offence. But the Commissioner’s case is that the Claimants were not arrested. So the question in this case is whether such grounds also include measures (short of arrest) lawfully taken to prevent the commission of an offence. A measure will not be lawful, if it contravenes Art 5.

False imprisonment and Art 5

The relevant constituents of the tort of false imprisonment are summarised in the following passages from Halsbury’s Laws of England 4^th ed on Tort (omitting references):

In R v Bournewood Community and Mental Health NHS Trust ex p L [1999] 1 AC 458 (“Re L”) there were two issues. One was whether the plaintiff had been imprisoned, the other was the application of the doctrine of necessity to false imprisonment. The House of Lords by a majority differed from the Court of Appeal on whether the plaintiff in that case was detained, a point which would have had no bearing on the present case, if it had not gone to Strasbourg.

When the case reached Strasbourg (HL v UK Application no. 45508/99), that Court explained that the meaning of imprisonment in the tort is not the same as the meaning of deprivation of liberty in Art 5:

The Court went on to find that the applicant was of unsound mind within Art 5(1)(e), but (at para 124) that there had been a violation of Art 5(1). The reason given was that the absence of procedural safeguards in that case failed to protect against arbitrary deprivations of liberty on grounds of necessity. It also held there had been a violation of Art 5(4) (right to take proceedings).

So the position has now been reached where the tort, and the claim under HRA s.6 and Art 5, although both concerned with liberty, use that term in different senses. A claim may fail under the tort, but succeed under Art 5. The converse is also possible. There are other Strasbourg cases under Art 5 where, it seems, the detention in question would be imprisonment for the purposes of the tort, but has been held not to be a deprivation of liberty for the purposes of Art 5. Examples are X v Germany and Guenat v Switzerland Application No 24722/94 (1995) 810A DR 130, considered below.

No submissions have been addressed to me as to whether the tort should be aligned with Art 5, and if so, how that can be achieved. There may be some difficulty in achieving an alignment. One reason for this is that defences to the common law tort cannot be exhaustively set out, whereas the exceptions to Art 5(1) are exhaustive: see Engel v Netherlands (1976) 1EHRR 647 and A v Home Secretary [2004] UKHL 56 para 107. However, it is clear that that for detention to be lawful under Article 5, a double test is applied. The detention impugned must be lawful under domestic law, and the domestic law must be in compliance with the ECHR: see in R v Governor of Brockhill Prison ex p Evans (No 2) [2001] 2 AC 19.

Mr Beggs invites me to look at the common law first and Art 5 second. Mr Starmer QC invites the opposite approach. But it is common ground that I cannot reach a conclusion on the tort which would be contrary to Art 5, whereas I could grant relief in respect of the tort which was not available under Art 5, provided the tort gave greater protection to the Claimants: HRA s.11.

Justifications for detaining a person are listed in the exceptions set out in Art 5(1)(a)-(f) of the Convention. The provision in Art 5(1)(c) in the words “…when it is reasonably considered necessary to prevent his committing an offence …” corresponds, at least in part, to the law on breach of the peace considered below (Steel v UK (1998) 28 EHRR 603). But there is a general defence of necessity at common law whereas necessity is not an exception specified in Art 5(1).

Necessity at common law

Re L is a case where necessity was advanced as a defence to a claim for false imprisonment, and necessity is recognised in text books as a general defence in tort: for example see Halsbury’s Laws 4^th ed Torts para 372. In Re L the House was unanimous as to the application of the doctrine as a defence to false imprisonment in the context of a patient who lacked capacity to take decisions concerning medical treatment.

The observations of Lord Goff of Chieveley included the following at pp488-490:

One difficulty with a defence of necessity to the tort of false imprisonment, (a difficulty which Mr Starmer QC contends to be insuperable), is that it cannot be brought within any of the exceptions to Art 5(1)(a)-(c) (whereas self-defence of course can be brought within (c), if raised against an attacker). Necessity is, of course, implicitly allowed for in (e) in relation to persons with infectious diseases, those of unsound mind and alcoholics, drug addicts and vagrants. Art 5(1)(c) refers to the necessity of preventing “his [ie the detainee] committing an offence”. But it is submitted that there could be no question of bringing before any judge a detainee who was not himself suspected of threatening to commit an offence.

The options appear then to be, either that there is no provision for necessity at all in Art 5, or that it applies (if at all) so as to remove the case from the scope of Art 5(1) altogether.

Subject to that Convention argument, necessity is a general principle of the law, and so far as the common law is concerned it is not disputed that it could in principle be available as a defence to a claim for false imprisonment.

An example, and perhaps the only example, of a relevant application of the defence of necessity to a claim against the police is Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; [1985] 2 All ER 985. But that case does not concern liberty, only damage to property. In that case, as summarised in the headnote, the plaintiffs’ shop was burnt out when police fired a canister of CS gas into the building in an effort to flush out a dangerous psychopath who had broken into it. The canister set the shop ablaze. At the time the canister was fired into the shop there was no fire-fighting equipment to hand, as a fire engine which had been standing by had been called away. The plaintiffs brought an action for damages against the chief constable, alleging trespass, the escape of a dangerous thing, nuisance and negligence. They also contended that the defendant ought to have purchased and had available a new CS gas device (known as Ferret), rather than the CS gas canister, since the new device involved no fire risk, and that the defendant had been negligent in firing the gas canister when no fire-fighting equipment was in attendance. The claim in trespass failed, but the plaintiff succeed to the limited extent that the court agreed that it was negligent to fire the canister when the fire-fighting equipment was absent.

Taylor J (before he became Lord Chief Justice) said this at p993:

Art 5(1)

To support the proposition that Art 5(1) is not engaged, Mr Beggs cites the decision of the Court of Appeal in R (Gillan) v Commissioner of the Police of the Metropolis [2004] EWCA Civ 1067; [2004] 3 WLR 1144. In that case, in September 2003 the claimants were stopped and searched by police pursuant to powers given under the Terrorism Act 2000 ss44-46. The claimants were a student on the way to a demonstration and a journalist who was in the area to film the protests. Nothing incriminating was found in either case. The Claimants were detained only for a matter of minutes, about 20 minutes at the most. At para 37 the Court noted that whilst under the Convention an arrest clearly triggers Art 5 protection, the exercise of police powers that fall short of arrest but none the less prevent an individual from doing what he or she likes, falls into a grey area.

Mr Beggs cites the passage at para 41 of the judgment:

The Court of Appeal did not have to decide the point, because it held (at para 44) that if it did apply, the cases would fall within the exception of Art 5(1)(b). But the Court said that if the point had to be decided, they would conclude that the stop and search powers should not be considered to constitute an infringement of Art 5. The Court cited the dissenting opinion of Sir Gerald Fitzmaurice in Guzzardi v Italy 1980) 3 EHRR 333 (a case concerning restriction in a narrow geographical area for a long time), in which he said that Art 5 “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”. Mr Beggs also relies on Raimondo v Italy (1994) 18 EHRR 237 and Cyprus v Turkey (1976) 4 EHRR 482 (a Commission decision) as examples of cases in which the Strasbourg court or the Commission have held there to be no deprivation of liberty engaging Article 5, the former being a case of house arrest, the latter of a curfew.

Gillan is of limited assistance to me. Not only was the point not decided, but the facts involved claimants who were stopped for a few minutes only, and in circumstances to which art 5(1)(b) would in any event have applied. However, as Mr Beggs points out, even though the detention of the Claimants in the present case in fact lasted about seven hours, steps were being taken to arrange a controlled release within minutes of the cordon becoming absolute. On the other hand, so Mr Starmer QC submits, even if there had been no other developments that day, if the controlled dispersal had proceeded as it did earlier in the day in Melton Street, it would have taken hours to complete.

Mr Starmer QC submits that what he called the curfew cases, that is to say the cases relied on by Mr Beggs, are not helpful. They involve measures taken within the framework of the criminal justice systems, and the restraint was for a longer period, but less close, than in the present case. He submits the position is similar with the mental health cases. Consent and incapacity are important issues in those cases. He submits that Art 5 can apply to detention for very short periods. He referred to the following cases.

In X and Y v Sweden (1976) 7 DR 123 two Japanese citizens suspected of terrorism were, for the purposes of their expulsion, arrested and detained for about an hour in Sweden before being put on a chartered aircraft taking them to Japan. They complained of an interference with their rights under Art 5(4) (right to take proceedings by which the lawfulness of detention shall be decided speedily by a court). They do not appear to have sought compensation. The Commission expressed the view that “every person deprived of his liberty has the right, in principle to enjoy the guarantees laid down in [Art 5(4)] as from the moment of his being arrested or detained”, while deciding the application was inadmissible. The basis for the decision was that the detention was within Art 5(1)(f) and, in relation to Art 5(4), as follows:

So while the Commission does appear to proceed on the basis that there was a detention within Art 5(1), the application was inadmissible on other grounds.

In X v Austria (1979) 18 DR 154 the applicant was taken against his will by police officers to a medical institution for a blood test pursuant to a court order in affiliation proceedings. The Commission expressed the view that there was a deprivation of liberty, but ruled the application inadmissible as necessary and proportionate under Art 5(1)(b) and Art 8(2). In each of these cases the Commission was influenced by the fact that the clear object of the police was to deprive the persons concerned of their liberty.

X v Germany (1981) 24 DR 158 is sufficiently summarised in the extract from para 41 of Gillan cited above. The Commission expressed the view that it was unlike the cases of X and Y v Sweden and X v Austria where the ‘object of the police action was clearly to deprive persons concerned of their liberty’.

Mr Starmer QC submitted that the European Commission’s distinction is clearly a fine one, and it is not apparent from the report of its decision whether the applicant consented to a request to attend the police station or whether she was made to believe that she was obliged to go.

Mr Starmer QC also drew my attention to two further admissibility decisions. The facts of Hojemeister v Germany 9179/80 on 6^th July 1981 are set out briefly in the report and it is difficult to know what it decided. The applicant had been stopped in the street by a policeman, and, following an altercation, his flat had been searched. It appears that the applicant did not allege that during the search he had been deprived of his liberty.

In Guenat v Swizerland Application No 24722/94 (1995) 810A DR 130 a man with a disease of the nervous system which visibly disabled him called the fire brigade. They called the police, who were concerned about his state of health and invited him to go with them to the police station, which he did. The police called a doctor, who saw him about two hours later. The doctor considered that the applicant was a danger to himself and that he needed specialist care. The Commission held that the detention was not within Art 5(1). The Commission stated that the police acted for humanitarian reasons and as soon as they arrived at the police station they made enquiries to find help for him. The Commission said that the police did not act repressively and never intended to arrest the applicant. The Commission adds that neither he, nor a friend and a lawyer who contacted the police, asked for his release.

In Litwa v Poland Application no 26629/95 (4 December 1988 Commission) the Court held on 4 April 2000 that the detention of a drunk for six and a half hours in a sobering up centre fell within Art 5(1). The Court also held that the case might in principle have come within the exception at Art 5(1)(e), but for the fact that there were measures less intrusive than detention that might have been adopted. The finding that the case fell within Art 5(1) is in the context of the fact that the applicant had been arrested by the police and taken to the centre.

Mr Starmer QC also drew my attention to the domestic law case of DPP v Meaden [2003] EWHC 3005 (Admin); [2004] 1 WLR 945 . In that case police were executing a warrant (under s.23 of the Misuse of Drugs Act 1971 and s.15 of PACE 1984) to search premises and any persons found there. They were thus entitled to use reasonable force by s.117 of PACE. While searching the premises they kept the respondent detained in a bathroom when the bedroom was being searched. Rose V-P, with whom Jackson J agreed, held that:

There is little reference to Art 5. Rose V-P said he was happy to accept that Art 5 applied, but that it added nothing. He expressed the view that the conduct was within Art 5(1)(b).

X v Germany and Guenat v Switzerland are the only Strasbourg cases where the detention appears to have been pursuant to a measure short of arrest, for the purpose of making enquiries.

The issues arising in relation to the defence of necessity are therefore of two kinds. First there is an issue of law: can necessity can ever be a defence to false imprisonment, arising from a threat to commit a breach of the peace by a third party, when it cannot be brought within the language of Art 5(1)(c)? Second there is an issue of fact: could necessity in any event arise on the facts of this case in relation to these two claimants? As to the first question, Guenat seems to me to justify the proposition that necessity can be a factor which, amongst others, may lead to a conclusion that Art 5(1) does not apply, and I so decide. The second question requires consideration of the facts.

Art 5(1)(c)

Mr Beggs submits that I can read Art 5(1)(c) so as to make it unnecessary for the police to have had the purpose of bringing the detainees before a competent legal authority. He accepts that the reasoning in Lawless v Ireland (No 3) (1961) 1 EHRR 15 is to the contrary (at p27 para 14), but submits that I am not bound to follow the judgments of the Strasbourg Court, and should not follow Lawless. He draws my attention to the right set out in the ICCPR Art 9(1). While similar to Art 5 in many respects, it does not contain an exhaustive list of exceptions. That article provides for the right to liberty as follows:

However, interesting though his argument is, it is not open to me, sitting at first instance in a domestic court, to disagree with the law laid down in Strasbourg. This Court is required by section 2(1) of the 1998 Act to take into account the Strasbourg decisions: A v Home Secretary [2004] UKHL 56 para 28, Lord Bingham of Cornhill.

Mr Beggs also makes the more limited submission that if the detainee is not taken before the Court, but is released instead, then Art 5(1)(c) may be satisfied. He relies on Brogan v UK (1988) 11 EHRR 11. It is established by Brogan paras 52-53 that a “conditional” purpose can suffice to bring a case within Art 5(1)(c). That is the expression used in para 96 of the Opinion of the Commission (p159). In that case the government argued that the intention was present if sufficient and usable evidence had been obtained after arrest. The court accepted this sufficed. It said that:

“As the government and the Commission have stated, the existence of such a purpose must be considered independently of its achievement, and Art 5(1)(c) 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”.

It follows that if the detention is prior to arrest, when arrest is not yet decided upon, or not yet practicable, a conditional intention to arrest and bring the person concerned before a judge may suffice in principle. The detention must, of course, satisfy other conditions, including being prescribed by law. And para 58 of the Judgment makes clear that the condition must be one which would be fulfilled, or not, within the period prescribed by Art 5(3) (requiring a detainee to be brought “promptly before a judge”). Otherwise the detention would be indefinite, which is clearly not permitted.

Individual requests for release

Release has arisen in this case in two different senses. The first is in the sense of release of the whole crowd, which I shall call collective release. The whole crowd, it is said should have been released promptly, once it was contained. The second sense in which the term is used is in relation to individuals who went up to the cordon and asked to be released. I shall refer to this as individual release. The Claimants each did that. It is said that whether or not the whole crowd was being released, each of the Claimants should have been released through the cordon for reasons personal to themselves.

It is necessary to consider what might be the relevance of a personal request by a claimant to be released. A request to be released is not necessary in order for a claimant to succeed in establishing either of the causes of action relied on this case. A person can succeed in false imprisonment without having asked to be released. So too with Art 5. A request for release which is refused might be relevant to damages. For example Ms Austin did not know that she was not free to leave the cordon until she asked and was refused. Any damages that may be awarded for the periods before and after her first request may therefore be on a different basis. A request for release might also be relevant on the issue of the lawfulness of the detention after the request. If the initial detention was unlawful, the request for release adds nothing to the claim on the issue of liability. But before the initial detention (or the continuation of detention) can be found to be lawful, a question may arise as to the exercise by a police officer of his discretion. It may be that when the police detain a crowd, the rights of an individual may be different if the police have had drawn to their attention facts which are personal to that individual. One such fact may be sickness. It may be lawful to detain a group of football hooligans for them to be arrested for a public order offence, but not proportionate or lawful to arrest a particular individual (whatever his behaviour) if he needs urgent medical attention. The request for release may give rise to the need for the exercise of the discretion to be reviewed by the officer to whom the request is made, on the basis of the detainee’s personal circumstances.

PUBLIC ORDER

As Lord Hope of Craighead said in A v Home Secretary [2004] UKHL 56 para 99:

Political demonstrations have long been a central feature of English life. Before the extension of the franchise in the nineteenth century they were the only means by which the public could make known their views. But they were generally treated as rebellions, whether they were violent or not. Out of the upheavals in the sixteenth and seventeenth centuries there came to be recognised a right of free speech and a free assembly. There are repeated re-affirmations by the Courts of the importance of these rights in a democracy. Large modern democracies operate through representation and elections. Political demonstrations are one of the few ways that members of the public can impress upon their representatives and upon candidates the importance of issues in which they might otherwise not take an interest.

In modern times the killing or injuring of demonstrators by police or other public forces has led to the breakdown of trust in the governments concerned around the world. The depth of public feeling when those responsible for public safety become the cause of injury or death is so great, and so well known, that it provides a means by which a violent minority can cause damage to a society which is wholly disproportionate to their numbers, and to any other means available to them. Violence used to provoke a wrong reaction by the police against a crowd can be more effective than a terrorist act, because the public revulsion that ensues is likely to be directed against the police or soldiers and not against the original perpetrator of the violence. In his Report, at para 27, Lord Scarman remarked that when the police are performing their duty to contain or disperse a riot, many innocent demonstrators may think that they or their friends have become the victims of selective police violence, even when (as he held in that case) that is a false interpretation of events.

The law on freedom of assembly and public order has been developed and reformed on numerous occasions in the twentieth century. There have been similar developments and reforms in the law relating to the right to liberty (in the sense defined above). Until now there has been little relationship between these two areas of the law. The reason is that until recently the only methods of policing used to control disorderly crowds was either to prevent the crowd from entering specified areas, or to disperse the crowd when it had. Neither of these methods involves any interference with liberty in the sense of detention. Forced and uncontrolled dispersal of a crowd can, however, be very considerably more intrusive than dispersal controlled by a preliminary detention. The video images from 1999 and 2000 in London, Genoa and Seattle show just how much force the police can use to disperse violent and disorderly demonstrators.

Just as detention involves the tort of false imprisonment, if not justified in law, so these other methods of forced dispersal, if not justified in law, often involve what would otherwise be assaults and batteries, or interference with the rights of individuals to use public spaces. Uncontrolled dispersal of a crowd can also create dangers to the life and property of others. It can free small groups of violent demonstrators to commit acts of violence against members of the public and groups of police officers, and against unprotected property. This too is shown in the images (many broadcast on TV) of the demonstrations in London in 1999 and May Day 2000.

Cases on liberty, whether in English domestic law or human rights law, often concern the arrest and detention of individuals in relation to crimes, including public order offences committed during demonstrations. These may be actual crimes, which may be suspected, or proven, to have been committed, or they may be crimes that are threatened. Other cases on liberty involve the protection of minors and those of unsound mind, and related matters not involving crowds. The rights of those not appearing themselves to be threatening violence, or to be provoking others to violence, have therefore received little consideration in the case law on deprivation of liberty.

Public order offences under the Public Order Act 1986 Pt I

There are a number of well known public order offences created by the Public Order Act 1986 Pt I (ss 1–10). They are riot, violent disorder, affray, causing fear of or provoking violence, causing intentional harassment, alarm or distress, and causing harassment, alarm or distress. These offences may be committed in the course of, or as a result of, demonstrations. Another offence that may be committed is under the Highways Act 1980. It provides:

Preventative measures under the Public Order 1986 Act Part II

The same Act also provides for preventative measures, which have the effect of restricting freedom of assembly. These include the following provisions:

Provision is made for penalties on conviction. There are definitions, which include that an assembly means more than 20 people (the figure has since been reduced to 2 by the Anti-social Behaviour Act 2003, s.57). It is not in issue in this case that there was a public assembly in Oxford Circus, and there was a public procession at least from Haymarket to Oxford Circus. The 1986 Act also provides (s.40(2)) that nothing in it “affects the common law powers … to deal with or prevent a breach of the peace”. I have omitted from the above citation s.12(2)(b) and (3) which do not apply here. They relate to directions in relation to a procession which is intended to be held in the future, and which require directions in such cases to be in writing from the chief officer of police.

No submissions were made to me on ss11-14 of the 1986 Act until I invited them to be made. None of the police officers present on May Day 2001 had claimed to be acting under the powers given in ss12 and 14. In their contemporaneous records of their decisions and in their evidence, they relied solely on their powers in relation to breach of the peace, or in the case of Ch Supt Webb of s.3 of the 1967 Act. In response to my invitation, Mr Beggs submitted that the decisions and directions the police had made were in law also justifiable as exercises of their powers under ss12 and 14. He submits that it is irrelevant that they did not have those sections in mind at the time. The law must look to the substance not the form.

Mr Starmer QC submitted that:

The significance of the statutory powers under ss.12 and 14 in a case such as the present (where the crowd may include those with no violent intentions) is that the sections do not require there to be any focus on the intentions of individuals in the procession or assembly. The police officer may give directions to those taking part in the procession or assembly, whether or not individually they appear to present the threat. Moreover, less relevant to this case, the required threat is not a breach of the peace, but serious public disorder, serious damage to property or serious disruption to the life of the community. This greatly extends the matters the police may take into account, although it is unclear what these expressions mean, and how the threshold differs from the common law breach of the peace. See Offences Against Public Order, A.T.H. Smith, Sweet & Maxwell 1987, para 8-01 to 8-05, 8-07. The Command Paper (Cmnd 9510) Review of Public Order Law, which preceded the 1986 Act, was provided to me by the Claimants. It is interesting to note that the example given (at para 4.22) of an occasion when this new test of disruption to the life of the community might be required is to “discourage demonstrators from using Oxford Street during business hours”. That is this case. The exercise of the powers under Part II of the 1986 Act must, of course, be in compliance with Arts 10 and 11 of the Convention, but that is a separate point. In the preparation of this judgment I have been greatly assisted by the works of Professor Smith. I am also indebted to Professor Feldman and the editors of Clayton and Tomlinson on Civil Actions against the Police 3^rd ed (2004) p194.

I do not accept the submission that s.12 does not give a power to bring a procession that is in progress to an end. The section refers to “the circumstances in which any public procession is being held…” and specifically states that directions may be “as to the route of the procession or prohibiting it from entering any public place specified in the directions”. So if a procession is intended to go up Regent Street to Oxford Circus and then to turn East or West into Oxford Street, or split and do both, a direction prohibiting that falls within s.12(1). If those taking part in the procession had wished to proceed up to Regent’s Park, and made that known to the police, the police would have been delighted. The fact that those taking part in the procession did not want to go there did not preclude a direction by the police that the other routes be closed to them.

In Smith para 8-07 and in D Feldman Civil Liberties and Human Rights in England and Wales 2^nd ed Oxford 2002, a point is made, which I accept. As Professor Feldman states it, at p1063, “Conditions which are so demanding that they amount in effect to a ban are an improper use of the power and so are unlawful on ordinary public law principles”. But this procession was not banned. It had already taken place to the extent of reaching Oxford Circus. And if the conditions do no more than is necessary and proportionate in the circumstances of the case to achieve the statutory public order objectives, then bringing the procession to an end will not be unlawful. S.13 does not apply to processions which are already in progress, and so does not assist in relation to them.

A direction may bring an existing assembly to an end. The section refers to “the circumstances in which any public assembly is being held…” and authorises a direction imposing the “maximum duration”. See Smith para 8-07 suggesting it may be “a modified form of dispersal power”. The submission that s.14 does not give a power to prevent people leaving an assembly, in particular when they ask, is more formidable. On its face, the section is aimed at limiting the numbers who may attend, or continue to attend. On Mr Starmer QC’s construction, the only directions that can be given are directions to disperse. But the purpose of the power is to prevent public disorder, damage, disruption and intimidation. What is to happen if the only direction apt to achieve those ends in the particular circumstances is a controlled dispersal, which in turn involves a period of preliminary detention? Of course, common law breach of the peace powers remain. But they may not apply to all those taking part in the demonstration.

The reasoning of Rose V-P in DPP v Meaden seems to me to be applicable here. He said, in finding that the search warrant in that case carried with it a power to detain the occupants of the premises:

“The authority [to search premises and person], to be meaningful, had … to enable the search to be effective. It could not be effective … if the occupiers were permitted to move about freely within the premises while the search was going on”.

Rose V-P was referring to a statutory authority, not to any power implied at common law. It follows that there may be a greater implied power to detain when the police act pursuant to ss12 and 14 of the 1986 Act than there would be if they acted pursuant to their common law powers (for this observation I am indebted to Patrick Healy “Investigative Detention in Canada” [2005] Crim LR 98, 105).

I conclude that a direction under s.14 that some or all members of an assembly disperse, can include a direction that they disperse by a specified route, and that they stay in a specified place for as long as is necessary for the dispersal to be effected consistently with the objective of preventing disorder, damage, disruption or intimidation, and, of course, of taking reasonable care for the safety of themselves and others. The direction must also be for the purpose of dispersal (whether or not it is also for another purpose, such as conducting a s.60 search), and it must be in accordance with Art 10 and 11, and other public law requirements.

I do not accept the submission that the power to impose conditions can only be exercised under either section where the disorder results from the assembly or procession itself, and not from other groups, even if they have broken away from the assembly or procession. The provisions of s.12(1)(a) and 14(1)(a) include no reference to the source of the risk (as contrasted with subsection (1)(b), where the risk must emanate from the organisers).

Obviously, if mob rule is to be avoided, and Arts 10 and 11 complied with, cases where a direction should made against a peaceable crowd when the source of the disorder is the threatened behaviour of another crowd, will be very rare indeed, and will require the most anxious scrutiny. But it is the Commissioner’s case that the crowd in the present case was not peaceable, and the threat of disorder, damage and disruption emanated from the crowd which was contained, whether or not it also emanated from others.

I also reject the submission that the police cannot now justify their actions by reference to any of these statutory powers, since they did not have them mind to exercise them at the time. It is to be noted that the powers are exercisable by “the senior police officer”. In relation to a procession or assembly being held, he is defined as the most senior in rank of the police officers present at the scene. These are powers intended to be available in an emergency, when, as here, decisions have to be made within minutes. Suppose a case where a police officer fears an imminent breach of the peace, and also believes that the procession may have one of the results specified in s.12(1)(a), although not necessarily that that is imminent, if a procession is allowed to cross a bridge. Suppose further that he puts a cordon across the bridge, claiming to act only under common law powers, not having the 1986 Act in mind. And suppose that the breach of the peace cannot be said to be sufficiently imminent at that time to justify the use of the common law power, but that his belief as to the (non-imminent) result of the procession is reasonable. I can see no reason why his direction to bar the bridge should be regarded as invalid (assuming all other conditions are fulfilled), simply because he was mistaken as to the source of his powers. This example is adapted from the events following the Elephant and Castle containment that occurred around noon on MD01.

It is implicit in Silver’s view on the threat of a breach of the peace that in this case he did consider that the first and second conditions (serious public disorder, serious damage to property) were satisfied. There is no evidence that he addressed his mind to the third alternative condition, serious disruption to the life of the community, and I do not have regard to that. In a judgment (Re Murphy unreported 11 July 1991) on the corresponding words in the Public Order (NI) Order 1987 given by the Northern Ireland Court of Appeal, Hutton LCJ said that question was a matter for the senior officer, and not for the court. He also said that:

“in applying those words it is appropriate for the senior officer to take account, not only of physical matters such as the disruption of traffic and the blocking of streets, but also of the annoyance and upset which may be caused to a community by a procession passing through it, if it is shown that as a consequence there is disruption to life in that community”.

There is room for uncertainty as to whether a group is at any given time a procession or an assembly, or perhaps both at once. The police did not believe that the crowd in Oxford Circus had reached their final destination. They believed that the crowd was about to go into Oxford Street. Whether it did so as one single procession, or more than one, or as separate groups of more than 20 people, or less, was unpredictable. It may not always be clear which section governs a given situation. That is another reason for not requiring the officer to have in mind the correct section.

Criminal Justice and Public Order Act 1994 s60

A further statutory provision relevant to this claim is the Criminal Justice and Public Order Act 1994, which includes:

This power was exercised by Mr French at about 7.30am in relation to the London Boroughs of Westminster City, TowerHamlets, Hackney, Camden, Islington, Southwark and Lambeth. There has been no suggestion that the power should not have been exercised, or was invalidly exercised (the validity was considered and upheld by a District Judge in criminal proceedings arising out of MD01). The grounds given for exercising it were given in writing as follows:

The Criminal Law Act 1967 s. 3

The Criminal Law Act 1967 s. 3 provides:

However, the common law may still be relevant. The reason is explained in Archbold 2005 19-39 as follows:

In addition to the example given in Archbold, crowds provide another example of a threat of injury or death which may not be criminal. When a person dies by crushing or trampling, the immediate cause may be another person who is himself being forced and is not acting with criminal intent at all. In a crowd situation, the persons presenting the threat of personal injury or death may all be innocent. They may none of them be threatening a breach of the peace.

Measures short of arrest to prevent a breach of the peace

In R v Howell [1982] QB 416 at 426, Watkins LJ (who gave the only judgment) held that:

“… there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant”.

The law on powers to prevent a breach of the peace was recently summarised by the Court of Appeal R (Laporte) v Chief Constable of Gloucestershire Constabulary [2004] EWCA Civ 1639; [2005] All ER 473, upholding a decision of the Divisional Court.

In 2003 the police stopped a bus which had on board, so they understood, a group of people known as the Wombles. This is an activist group whose name is an acronym for White Overalls Movement Building Libertarian Effective Struggles, and who had earlier appeared at MD01. (The Wombles is also the name of a group of endearing characters with pointed noses which figured in books and a long running children’s TV programme of that name written by Elisabeth Beresford. It was well known to households with children in the 1970s and 1980s. So far from being engaged in confrontations with the police, these Wombles spent their time clearing up rubbish left on Wimbledon Common. But they did dress in white overalls).

The Wombles were travelling in the bus to go to a demonstration against the war in Iraq due to take place at an air base near Cirencester on 22 March 2003. The demonstration was authorised under ss12 and 14 of the 1986 Act. The police stopped the bus, acting on intelligence, at a lay-by on the road less than 5 kilometres by road from the perimeter of the air base and approximately 2 kilometres on foot. The occupants were wearing disguises which the police required them to remove under the successor provision of s.60(4A) of the 1994 Act. One arrest was made then. There were found on the coach some protective clothing, spray paint, two pairs of scissors, a smoke bomb and five shields, in other words items useful to conceal identity and capable of being used offensively. Following the seizure of those items, the Chief Constable concluded that the coach passengers were heading for the air base and were likely to cause a breach of the peace. At 2 p.m., he gave instructions that the coaches and passengers were to be escorted back to London. This happened and the Claimant disembarked from a coach in London at 4.54 p.m., approximately two and a half hours later. A police escort accompanied the coach all the way, preventing the passengers from stopping for refreshments or to use a toilet. The Court of Appeal held that the temporary detention of all the passengers at the lay-by was action falling short of arrest, which was lawful. It was justified by the imminence at that place of the threat of a breach of the peace (para [44]). On the other hand the Court held that the detention of the passengers in the bus back to London was not justified. The action was disproportionate, although it would have been lawful to order them not to proceed to the air base and to leave the area (para [55]).

The Court of Appeal summarised the law on breach of the peace as follows:

The two relevant breach of the peace measures short of arrest are thus detention short of arrest (Laporte) and turning people back or blocking their access to a place (Moss). The latter measure cannot, of course, amount to imprisonment or deprivation of liberty within Art 5(1).

In the course of the judgments in the Divisional Court and the Court of Appeal mention was made of the point that may arise in the present case, namely the rights of those who may not appear themselves to be threatening a breach of the peace, but who are present in a group with others who do so appear. In para [48] the Court of Appeal said:

“The important feature to note about the ability to take preventive action is that its justification is not derived from the person against whom the action is taken having actually committed an offence, but based upon a need to prevent the apprehended breach of the peace. In some situations, preventing a breach of the peace will only be possible if action is taken which risks affecting a wholly innocent individual.” (emphasis added)

In the Divisional Court ([2004] EWHC 253 (Admin); [2004] 2 All ER 874) at para 46 May LJ said:

“In my judgment, therefore, the detention of the coach passengers while they were escorted back to London did not come within Article 5(1)(b) of the Convention. Nor, on the face of it, was it justified under Article 5(1)(c) because it was not effected for the purpose of bringing the persons detained before a magistrate. This might arguably suggest that there is a conflict between Article 5(1)(c) and the common law power and duty of detention short of arrest which Albert v Lavin enunciates and illustrates. The apparent conflict may, however, be readily resolved. The power and duty to use reasonable force to detain someone to prevent an immediately apprehended breach of the peace, although it may be described as transitory detention, is scarcely detention within the scope of Article 5. It is perhaps analogous to using reasonable force in self defence. It is a defence to an allegation of assault. There should be and, in my judgment, is no obligation to bring a person thus prevented from breaching the peace before a magistrate, provided he is released unconditionally as soon as the immediate apprehension of breach of the peace is past. But detention beyond that period will not be justified unless there is an arrest followed by bringing the person arrested before a magistrate. How long transitory detention of this kind without arrest may lawfully last will depend on the facts of the case, but it cannot be for long. ”

It may be that the analogy with self-defence is what the Court of Appeal had in mind in referring to the possible justification of action which affects the wholly innocent. There is a principle which is set out in Clerk & Lindsell on Torts 18^th ed para 3-100, on which I invited submissions. It reads as follows:

“There is a somewhat vague principle of necessity which robs the defendant’s intentional acts of culpability, a defence which seem to be allied to that of the remedy of ‘self-defence’. Both are linked by the common requirement of reasonableness. So far as they exist, they only represent ‘lawful justification and excuse’ for what would otherwise be a tortious invasion of another person’s rights. The main differences between necessity and self-defence are, first, that the latter presupposes some kind of attack against the person acting in defence, which necessity does not; and, secondly, that in cases of self-defence it would usually be the case that the claimant is in the wrong himself”.

I have set out the principle of necessity above.

The most common context in which breach of the peace is considered is where a person is arrested. Cases such as Laporte, where the contested action is a measure short of arrest, are rare. There are, however, numerous incidental mentions in the cases of measures short of arrest. It is common to find references to protesters and others being escorted by the police away from a protest, but not arrested.

In the present case, when a cordon was put round the crowd in Oxford Circus, the police did not intend to arrest the whole crowd, and they did not consider that they had arrested the whole crowd.

In the present case, nothing was said to the crowd before 4pm. Until then no member of the crowd would have appreciated that they were unable to leave without the permission of a police officer, unless they had asked to be released and been refused. Every 5-10 minutes after that Sgt Stacey announced over the public address system at Oxford Circus the words:

“You are being contained to prevent a breach of the peace and damage to property. You will be released in due course by a prescribed exit. Please be patient”.

At 6.15pm the message changed, and he said:

“Please move to the centre of Oxford Circus. If you remain calm arrangements will be made to allow you to leave as soon as possible”.

From about 6pm both of these announcements were greeted with jeering and abuse, although before then there was no response to the announcements apparent to Sgt Stacey.

Historically measures short of arrest, for the preservation of order, or to protect property have been considered to be available for use by the police against those who were acting lawfully, and who were not threatening any violence. See the article by Glanville Williams “Arrest for Breach of the Peace” [1954] Crim LR 578, still cited in the current Archbold 2005 para 19-344, and which Professor Sir John Smith said “remains the best study of the common law on the subject” ([1996] Crim LR 803). Three examples are given of measures which, but for this power, would be assaults or batteries. One is of a constable taking from a woman acting lawfully an orange lily which was causing offence in Ireland where that was the only way of preserving the peace. Another example is of a magistrate dispersing a meeting. While the first example might now raise arguments under Art 10 on the facts (and at the time it did raise concerns about encouraging mob rule), the third example appears to be one of a measure of temporary detention taken with a view to protecting the freedoms of assembly, religion and speech of a congregation.

Williams is not a strong authority. The principle is stated in one sentence from the direction to the jury by the trial judge, Alexander CB, which appears not to have been contested on the motion for a non suit. The direction was that:

“although the defendant might be justified in taking the plaintiff out of the church, and detaining him till the service was over, yet he had no right to detain him after that time”.

Later cases have made clear that arrest is justifiable only where there is a threat of violence. The case of Steel v UK (1998) 28 EHRR 603 concerned five protesters, all of whom were arrested by the police in accordance with the common law powers preserved by PACE 1984 ss.17(6) and 25(6). They were kept in custody pending the hearing by magistrates of a complaint under Magistrates Courts’ Act 1980 s.115, which was intended to lead to the protesters being bound over to keep the peace. The first two protesters declined to be bound over and were imprisoned for 28 and seven days respectively. The third, fourth and fifth were released before the magistrates’ court hearing, after being detained for seven hours.

The first protester was amongst a larger group of 13 who had been arrested after they had attempted physically to obstruct and distract those taking part in a lawful grouse shoot. She had walked in front of a member of the shoot as he lifted his shotgun to take aim, thus preventing him from firing. The second protester was one of a group of twenty to twenty-five protesters who repeatedly broke into a construction site, where they climbed into trees which were to be felled and onto some of the stationary machinery. The third, fourth and fifth protesters had handed out leaflets in front of the Conference Centre by Parliament Square.

After citing Howell the Strasbourg Court went on:

In that case the Strasbourg court did not have to consider detention short of arrest in circumstances where there was no intention to make an arrest, simply to prevent a breach of the peace which was considered to be threatened that afternoon. And in that case, the actions of the first two protesters were considered likely to provoke a breach of the peace by others in response to them. In both these respects the present case is, or may be, distinguishable. But the court did recognise that “the duty to keep the peace is in the nature of a public duty”. The case says nothing about how this duty is to be performed by measures short of arrest.

It is to be noted that the duty to prevent a breach of the peace, which does not itself give rise to a claim for damages, is related to other public and private law duties, which do give rise to a claim for damages. In Osman v UK judgment 28 October 1998 at para 115 the Court held that Art 2 (right to life) implies “in certain well-defined circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual”. There is a corresponding positive obligation implied in Art 8 (protection of private life) to protect individuals from less serious risks from criminal acts of another individual, as there is also in Art 10 (freedom of expression). There is also the common law duty of care under which the police accepted liability in negligence in Hillsborough.

Percy was a case concerning the meaning of breach of the peace when used in the context of justices’ powers to bind over to keep the peace. The protester had been escorted off an air base which she had entered on five separate occasions on the same day. On the first occasion she was arrested on suspicion of causing criminal damage, but soon released without charge. On the next three occasions she was escorted off the premises by a constable. On the final occasion she was arrested a second time for obstruction under the local bye-laws. This charge was not pressed because of a challenge to their validity. Six days later a complaint seeking a bind over was issued in substitution. The question at issue was whether a breach of the peace in the context of the Act of 1361 and section 115 of the Magistrates' Courts Act 1980 (the terms of the statutes are set out in that report) must involve violence or the threat of violence. It was held that it must at p1393, the Court stating:

It is correct that Lawton and Templeman LJJ at the passages referred to considered that generally “passive resistance remains passive only so long as the resistance is successful”. So they considered violence would be likely to arise. In this they disagreed with the assessment of the Chief Constable. But the context in which violence was likely to arise was in the event that the Board would have to use “self-help” (473C) to get the protesters off the land. This they also thought both likely and lawful. Lawton LJ agreed with Lord Denning MR on the lawfulness of self-help, which was what the case was really about.

Lord Denning MR said at p 472A:

Lawton LJ said at p472H-473A:

Lord Denning MR was clearly focussing on the distinction between clearing the objectors off the land, and taking them before the magistrates in the event that they resisted. If the law were not as he states it to be, the police, or the Board’s employees clearing the objectors would be committing a trespass to the person by touching them, so long as the objectors were not being violent. And if the police escorted them, so the protesters could not escape, or put them in a vehicle to remove them from the land, the police would be committing a trespass to the person in the form of false imprisonment.

These cases all relate to events on property other than a highway. That makes no difference. At p1068 of his book Professor Feldman writes: “Public places are not res nullius. They are actually vested in and the property of some body…. highways including Trafalgar Square, a traditional venue for meetings, are vested in the Crown or local authorities, subject to a right of members of the public to pass and repass on them…”. There is also an uncertain right of assembly discussed at p1057. But the expression “self-help” seems less appropriate for cases where the protesters to be removed are not on private property, but on the public highway.

Mr Starmer QC submitted that this view of the law was not consistent with the more recent cases on breach of the peace which require there to be a threat of violence before any detention can be lawful. But he was not able to identify to me another power which justifies the police in the most basic law enforcement measure, when faced with a person (whether a demonstrator or a lout) who is unreasonably, but peaceably, sitting on the highway, namely to escort them away, or pick them up and put them on the pavement. That this power should exist is as important to demonstrators as to anyone else. Otherwise the police may be powerless to perform the positive obligation under Art 10. In Platform ‘Arzte fur das Leben’ v Austria (1991) EHRR 204 the Court held that such a positive obligation existed (para 32), and that Austrian laws which empower the authorities “in certain cases to prohibit, bring to an end or disperse by force an assembly, also apply to counter-demonstrations (para 33)”. But for such laws, dispersal by force of counter-demonstrators would be a trespass to the person, for which the police would be liable in damages.

It is true, as Mr Starmer QC, submits, that in Osman at para 116 there is a need to ensure that the police exercise their powers to prevent crime in a manner which fully respects other guarantees, including, in particular those contained in Art 5. But the court does not say how that is to be achieved. It is left unclear whether a temporary detention of a person to prevent violence on his, or another person’s, part would necessarily be a deprivation of those persons’ liberty within Art 5.

Mr Starmer QC mentioned the possibility of seeking an injunction. But freedom of expression is not just a right to say what you want. It is also a right to say it when, where and how you want. As Mr Starmer QC pointed out in his submissions on ss12 and 14 of the 1986 Act, if a demonstrator is prevented from processing or assembling when and where she wants, that may be an effective denial of the rights of free speech and of assembly. A counter demonstrator, if not removed, could prevent a procession advancing, or an assembly taking place, for long enough to defeat the whole purpose of the demonstration. So a remedy by injunction against a counter demonstrator would not be the effective remedy required by the Convention.

Possible alternative measures short of arrest, which are used in some places (but never in London) are CS gas, rubber bullets or water cannon. None of them will involve a breach of Art 5, and if they engage the rights protected by Art 8 or Art 10 (as they might) there is no such restricted list of exceptions as exists in Art 5. It would be a strange result if the much the lesser use of force involved in a temporary detention for as long as is necessary to prevent interference with the rights of others were unavailable to the police, on the basis that it was a deprivation of liberty within Art 5(1), but not within any of the exceptions. It would be contrary to the principle of proportionality if no measure short of arrest were to be available to meet a situation in which temporary detention short of arrest would be sufficient. The power (as used in Moss) to prevent access by a crowd to a place, here to a part of London, obviously does not engage Art 5 at all, or give rise to a claim for false imprisonment. In human rights law it might, at most, engage the right of freedom of movement if, which is not the case, that were one of the Convention rights applicable in the United Kingdom. Nevertheless, the denial of access, for example by putting a police cordon across a road or bridge, does require justification in English law. Unless justified, it might in principle give rise to a cause of action, although I am not concerned with any such claim in this case.

In the case of many demonstrations, the uncontrolled dispersal of the crowed will achieve the objective pursued by the police, and if proportionate, it will be justifiable on that account. But in other cases (including, says the Commissioner, the present case) uncontrolled dispersal would not have achieved that object. The objective which the police say they pursued was to prevent groups of people (whether demonstrators, or criminals using the demonstration as a cover) dispersing in small groups. Such dispersal would make it impractical for the police to prevent interference by them with the rights of others, and it would put others at risk of injury and accidental death. The objective was a controlled dispersal, for which the detention was a pre-condition. The case is that detention was not itself the object.

Mr Starmer QC submits that even if the power of temporary detention exists, it is not properly to be called a power to prevent a breach of the peace. The effect of that submission would be that the power is not in terms retained by s.40 of the 1986 Act, which refers only to breaches of the peace. I can see no merit in this result. If Lord Denning MR’s definition of a breach of the peace were accepted as correct, it could still be said that the available responses to a breach of the peace will depend upon whether or not it involves a threat of violence. Only if it does involve such a threat would it be lawful to exercise the power of arrest or of complaint to the magistrates for a bind over. In this way the broader definition could be reconciled with later decisions, including Steel. In so far as there is a statutory definition of the duties of a constable, they are in the Declaration in the form prescribed in s.29 and Sch 4 of the Police Act 1996: “I will to the best of my power cause the peace to be kept and preserved, and prevent all offences against the person and properties of Her Majesty’s subjects”. But Mr Beggs referred to vol 36(1) of Halsbury’s Laws 4^th ed para 524, to support the submission that it also includes a general duty to intervene to protect injury to life or property: Haynes v Harwood [1935] 1 KB 146. Maugham LJ said at p 162 (and Roche LJ agreed with this at p166) that:

“There is a general duty to protect the life and property of the inhabitants… [the police] are not mere lookers on when an accident takes place or seems likely to take place: they have, I think, a discretionary duty to prevent an accident arising from the presence of uncontrolled forces in the street, if they are in a position to do so.”

I would prefer Lord Denning MR’s use of language if that is open to me. Any narrowing of the definition of ‘the peace’ could be understood as a narrowing of the scope of a constable’s duties. It may be for this reason that there has come to be considered whether there is a duty on the part of the police to assist others in their rights of what is called “self-help”: CEGB pp473G, 478F-481.

After the conclusion of the hearing, Mr Beggs drew to my attention to Porter v Commissioner for the Police for the Metropolis 20 October 1999 (unreported). In that case Judge LJ held that the plaintiff’s refusal to leave the showroom of the electricity supplier, LEB, (to whom she was complaining) did not of itself constitute a breach of the peace, nor justify her arrest, unless and until she resisted lawful efforts to remove her and a breach of the peace became imminent or actually occurred. Nevertheless, he held that the police were acting lawfully, and in the execution of their duty, when they seized the plaintiff in order to remove her from the premises. In that case, he also agreed with the judge that there was in fact a breach of the peace, but his conclusion as to the lawfulness of the police action does not depend upon that finding. He said:

If the police do have a power of temporary detention, only for so long as is necessary to protect the rights of others and is consistent with public safety, then it is a less intrusive power than arrest, and the question arises whether it falls within Art 5(1) at all. I will return to this question after considering the facts of the case.

None of these cases directly addresses the position of a person who is mere bystander, such as Mr Saxby. He had been standing on the pavement. Nor do they clearly address the position of Ms Austin who was not a mere bystander. Although not in fact threatening violence, the case against her is that she was deliberately participating in the procession up Regent Street and the assembly at Oxford Circus (not on the pavement, but in the highway). The question here is: what is the state of mind that the police must have in relation to these Claimants before their action in detaining them can be held to be lawful. The question arises because there is little direct evidence as to what the state of mind of the police was. And the authorities use a variety of different forms of words as to the nature of the state of mind that can justify action: “apprehension” (Howell, Laporte), “reasonably appears” (Albert), “reasonably form the opinion” (Moss as cited in Steel), “appears likely” (Steel para 55). By contrast, in Art 5(1)(c), the words are “reasonable suspicion of having committed an offence” and “when it is reasonably considered necessary to prevent his committing an offence”.

Mr Beggs cited two cases concerning public order and football supporters. In Parrish v Garfitt [1984] 1 WLR 911 the magistrates stated a case summarised as follows:

In his judgment Lord Widgery CJ sets out the following words of the magistrates:

Lord Widgery CJ dismissed the appeal, with agreement of the other members of the court, giving this reason:

Precisely how the group was “cordoned off” and “carefully segregated by the police” is not recorded. It is possible that it might have been done without at the same time including anyone in the cordon who was not arrested and convicted. But the fact that the group were carefully segregated by the police was regarded as essential to the lawfulness of the conviction. The case lends support to the submission that it may be necessary for the police to cordon off a large group who may be involved in public order offences, and segregate those to be arrested. But the defendants in that case were convicted, and the case says nothing about the state of mind the police needed to have before carrying out the segregation.

The second case cited by Mr Beggs in this connection bears a striking resemblance to the events that occurred on May Day 2001 in the morning (except that the MD01 crowd were not in fact violent). In Allen v Ireland [1984] 1 WLR 903 the facts found by the magistrate included the following. Special trains containing football supporters arrived at Euston Station. A group of men from one train ran through the inner concourse of Euston Railway Station, out through into the outer concourse, turned right through the ornamental gardens, crossed Melton Street and passed along the first block of Euston Road. The group appeared to have no fixed destination and after about 150 yards along Euston Road the head of the column turned to retrace its steps. The group having crossed Melton Street was surrounded and contained by a team of police dog handlers with their dogs. No one joined or left after the dog handlers were in position. A police sergeant passed up the group telling them in a loud voice that they had been arrested for threatening behaviour contrary to the Public Order Act 1936. He detailed the caution and told the group that statements would be taken later. The police sergeant supervised the removal of the entire group to three police stations. The group was approximately 250 in strength, and while crossing the outer concourse was 10 to 12 across. It stayed together as a group and became quite concentrated after it had crossed Melton Road. While running the group was chanting and shouting; the words could not be discerned but the noise was deafening. At Melton Street traffic was brought to a halt by the actions of the group. While crossing, members of the group addressed comments through the open windows to occupants of vehicles, some vehicles were kicked, a small number of the group made their way, where there were obstructing vehicles, over the bonnets or indeed over the roofs of the vehicles. The question for the opinion of the High Court was whether the court was entitled to hold that there was a case to answer, there being no evidence that any of the defendants had participated in the threatening behaviour with which they were charged. In addition there were facts found as to the violent behaviour of this crowd for which there is no equivalent in the behaviour of the crowd on MD01.

The Court answered the question in the affirmative. Kerr LJ, giving the judgment of the Court said:

The position still remains unclear. As stated in Archbold 2005 para 18-19:

Those passages concern the state mind of the persons voluntarily present at the scene, not the state of mind of the police deciding whether to take action against them. However, any lack of clarity on that point assists the police in this case, where events are being considered at a stage before conviction. If either of the Claimants had been arrested and tried, then the question would have to had to be resolved by direction of the trial judge or on appeal. Subject to the answers to the three questions analogous to those in Castorina v Chief Constable of Surrey [1988] NLJ Rep 180, the suggestion in Archbold might have been a sufficient basis for an arrest to be made, and might be a stronger basis for the police to detain a crowd to prevent an outbreak of disorder, or to segregate those who are to be arrested from those who are not.

The test for arrest is reasonable suspicion (under PACE ss24 and 35, and Art 5(1)(c)). I conclude that the test for deciding whether a measure short of arrest can be lawfully taken against a given individual should also be reasonable suspicion that that individual is presenting the relevant threat. I take this to mean the same thing as “reasonably appear” and the other expressions used in the cases. So when the police reasonably consider it necessary to prevent someone in a group from committing an offence, that someone may be anyone whom the officer reasonably suspects to be about to commit the offence.

Mr Beggs referred to the judgment of Woolf LJ in Castorina in which he considered Holgate-Mohamed v Duke [1984] 1 AC 437 (a claim for false imprisonment), and derived from it three questions to be considered in deciding whether an arrest is lawful: (a) Did the arresting officer suspect that the person arrested was guilty of the offence? (b) Were there reasonable grounds for that suspicion? (c) Did the officer exercise his discretion to make the arrest in accordance with Wednesburyprinciples?”

Analogous conditions must apply in deciding whether a detention short of arrest is lawful. The questions to be asked fall into two groups: Art 5 and false imprisonment.

THE QUESTIONS TO BE ANSWERED

The Art 5 questions

In the light of the foregoing, the questions to be answered in deciding whether each Claimant’s rights under Art 5 have been infringed will be:

The false imprisonment questions

The questions to be answered in deciding whether the false imprisonment claims succeed will be:

THE BURDEN OF PROOF

In a claim for false imprisonment the burden of proof clearly rests on the claimant to prove the imprisonment, and (subject to one point) upon the defendant to prove the justification for it. But if the same issue is raised by way of judicial review the burden rests on the applicant. As the Court of Appeal said in Laporte at para 28: “In the case of a conflict [of evidence, there being no cross-examination] we have to give the benefit of the doubt to the Defendant since the Claimant brings the proceedings and it is her task to prove her case”.

Mr Beggs directed my attention to the third Castorina question. He submitted that the burden of showing that the discretion to arrest (and likewise to detain) has been exercised improperly is on the claimant. In support of this proposition he cited Clayton and Tomlinson. On this point the authors cite no authority, and none was cited to me.

However, authority is available in the form of the following summary of the law by Auld LJ in Al Fayed v Commissioner of Police for the Metropolis [2004] EWCA Civ 1579, at para 83:

If the detention falls within Art 5(1), there can be little doubt that the burden of proof must lie on a defendant to bring the case within one of the exhaustive list of exceptions to Art 5(1).

If the question is whether the detention falls within Art 5(1), the position is different. It seems to me that the position is analogous both to false imprisonment and to that in Laporte. The Claimants bring their case under HRA s.7. They allege that a public authority has acted in a way which is made unlawful by s.6. Those proceedings, as s.7 expressly states, may be by way of judicial review, but can be in an ordinary action, as here. So the Claimants bring the proceedings and it is the task of each to prove his and her case. There is no reason why the burden of proof under s.7 should differ according to whether the claim is brought by judicial review or by some other form of proceedings.

THE LEVEL OF SCRUTINY

In relation to the decisions under consideration in A v Home Secretary [2004] UKHL 56 there are the following passages which are of relevance to the issues in this case. At para 29 Lord Bingham of Cornhill said:

In considering what is meant by the requirement of necessity Lord Bingham set out the Appellants’ argument, which he accepted at para 43. He said this at para 30 and 40:

Given the extent to which the plans of the police on MD01 were informed by secret intelligence, it is also important to have regard to the words of Lord Scott of Foscote in A at para 196, albeit in a dissenting speech:

In Steel at para 105 in considering the question whether the detention of one of the applicants was disproportionately long, the Strasbourg Court acknowledged that the police were in a better position to assess the risks. It stated:

“Particularly given the risk of an early resumption by her, if released, of her protest activities against field sports, and the possible consequences of this eventuality, both of which the police were best placed to assess, the Court does not consider that this detention was disproportionate”.

As stated in Holgate a decision to arrest is an executive decision by a police officer. So too must be a decision to detain for the purposes of segregating a crowd prior to arrest, or to prevent a breach of the peace. The court must allow for the fact that it may be very difficult for the police to identify the target or predict the scale of violent disorder. As Professor Smith puts it at para 8-05 in relation to s.12 of the 1986 Act,

“The law requires the … police to make educated guesses about the likelihood that disorder, damage or disruption will occur. Quite apart from what the organisers tell him of their intentions, he may have sources of information that have a bearing on how he comes to a conclusion about predicted outcomes… he may take into account such factors as disturbances that have arisen in the past when the same organisation processed on a previous occasion…”

I conclude that the Court should accord a high degree of respect for the police officers’ appreciation of the risks of what the members of the crowd might have done if not contained. At the same time the court should subject to a very close scrutiny the practical effect which derogating measures have on individual human rights, the importance of the rights affected, and the robustness of any safeguards intended to minimise the impact of the derogating measures on individual human rights.

In R (Gillan) v Commissioner for the Police of the Metropolis [2004] EWCA Civ 1067; [2004] 3 WLR 1144, paras 33-35 the Court of Appeal noted that the Courts will not readily interfere with the judgments of the authorities as to the action that is necessary to prevent terrorism, but will ensure that powers are only used in furtherance of the purpose for which the power was provided, and that its exercise is necessary and proportionate. This is not a terrorism case, but public disorder on the scale that occurred on 18 June 1999 (“J18”), 30 November 1999 (“N30”) and May Day 2000 (“MD00”), all of which are described below, is a very serious matter.

THE EVIDENCE IN THE CASE

The evidence in this case was presented in the form of witness statements, contemporaneous police records running to thousands of pages, and compilation DVDs of video footage taken on the day by photographers, from the police helicopter and from CCTV cameras. All but one of the eleven witnesses for the Claimants (including themselves) gave evidence orally. I heard their evidence in Court over three days, after Mr Starmer QC had opened the case for one day.

There are two lots of witness statements for the Commissioner, one for fifty-seven witnesses who signed witness statements for the trial, and a further eighty-eight statements prepared in a form designed for use in criminal proceedings. Of these 145 witnesses, only eight, the most senior officers, were required by the Claimants to be cross examined. They were the Gold commander, Mr Messinger, the Silver commander, Mr French, two Bronze commanders, Mr Webb No 8 and Mr Mackie No 12, one sub-Bronze Mr Allison No 8(1), Silver’s Tactical Adviser, Mr Caldwell, Det Ch Supt Mitchell, the line manager for the National Public Order Intelligence Unit, and DS Sully of the Public Order Policing Branch. The statements and exhibits to them run to over two thousand pages. Hardly any of this was read in Court. I read it all out of court hours. I heard the oral evidence over a total of six days, including the experts for each side at the end.

“Gold Commander” is the title given to the officer in overall command of a public order event. His responsibilities include the provision of resources, and to set the strategy, and to approve the tactical plan. “Silver Commander” is the title given to the officer whose responsibilities include the development of the tactical plan. He must be able to maintain effective tactical command of the operation, and must be so located as to be able to do so. Gold and Silver, on MD01, were both located about a mile away from Oxford Circus, in New Scotland Yard, where there are extensive facilities for communication and for monitoring events in London. “Bronze Commander” is the title of those officers whose responsibilities include the implementation of the plan by the use of appropriate tactics within their area of responsibility, which may be either geographical or functional. Silver is responsible for briefing his Bronze commanders, and the Bronze commanders are responsible for briefing the staff within their area of responsibility.

At counsel’s request, in addition to reading all the statements out of court hours, I read the relevant parts of all the contemporaneous documents and other exhibits, which in turn number thousands of pages.

I received evidence both written and oral from the two expert witnesses, Mr Gilbertson and Mr Speed. David Gilbertson QPM, BSc (Econ) retired in April 2001 having reached the position of the Deputy Assistant Commissioner in the MPS. From 1966 until his retirement he had served in the police service in every rank up to that. He had extensive experience in all aspects of public order event management. From June 1987, when he was appointed Superintendent in charge of Central London Territorial Support Group, he was responsible for public order responses for the City of Westminster. He regularly acted as Gold, Silver or Bronze in large-scale public order operations such as NUS marches, Anti-Apartheid Demonstrations, CND protests, trade disputes and other matters. He has lectured and written on public order matters both here and in the United States. On his retirement he formed a consultancy practice. He was awarded the Queen’s police medal for distinguished service and his degree is in International History from the University of London School of Economics.

Anthony Speed CBE QPM DL also served in every rank of the police service over a period of forty-one years up to Assistant Commissioner. He retired in February 1999. He has unparalleled knowledge and experience of strategic and tactical issues surrounding public order, ceremonial, security, major events and disaster management. Since his retirement he has undertaken a number of responsibilities. The City of London Police Authority asked him to review the J18 Carnival Against Capitalism riot. The Independent Commission on Policing in Northern Ireland asked him to review public order policing in Northern Ireland. Before his retirement he was responsible for a review of their manual by the Public Order Sub Committee of the Association of Chief Police Officers. The responsibility for the manual was handed over by him on his retirement to Sir Ronnie Flanagan. He also has extensive experience in public order events in London. He was responsible for the implementation of recommendations by Lord Justice Taylor following the Hillsborough Disaster. In 1981 he was the Metropolitan Police Liaison Officer to Treasury Solicitors engaged in the enquiry by Lord Scarman into the Brixton riots of 1981. Following that he was responsible for setting up the training department for Public Order events.

Both experts are therefore of the highest qualifications. Both know and have worked with many of the officers who were responsible for the policing of MD 01.

In addition there are 21 DVDs compiled to show incidents occurring that day. Most of them represent periods of either one hour or half an hour during the day. They contain material from the hand held cameras used at ground level, from CCTV cameras at rooftop level and from a camera in a police helicopter overhead. One of the DVDs includes images from previous London demonstrations, the two events in 1999 in June and November, and from May Day 2000. There are also images from Washington DC and other places. There are specific compilations relating to the releases from the cordon in Oxford Circus and to the activities of the two Claimants.

Some frames of these were shown on monitors in Court during the Claimants’ opening and in cross-examination. At counsel’s invitation I watched all of them out of court hours.

With the exception of two of the Commissioner’s witnesses, the Claimants did not dispute the factual statements of any of those who did not give oral evidence, nor did they dispute any of the statements or records in contemporaneous documents. The exceptions were Mr Todd and Mr Willcock, for reasons which are not material. However, they did dispute statements of opinion in the witness statements. It was agreed that those witnesses did not have to be called for their opinions to be challenged in cross-examination.

Although there was no Reply, counsel have more than made up for that. This large volume of material has been digested into Chronologies and Schedules by both sides, and the Claimants’ counsel have provided a detailed list of what is, and is not, admitted in the statement of facts contained in the written opening speech of Defendants’ counsel. The section of that document dealing with the facts runs to over 130 pages. In addition each side has put in written supplementary submissions and closing submissions.

I am heavily indebted to counsel on both sides for this work. Without it the trial would have lasted for very many weeks. Much of the factual narrative in this judgment is drawn from counsels’ documents. In my reading of the underlying documents, I have found nothing to suggest that the area of factual dispute ought reasonably to have been wider than it is. The case has been fought strongly on the issues where there could reasonably be dispute.

18 JUNE 1999, 30 NOVEMBER 1999, MAY DAY 2000

One of the reasons why the police took the action they did on this occasion was because, on 18 June 1999 (J18) and May Day 2000 (MD00), and at a demonstration on 30 November 1999 (N30), there had occurred very serious breakdowns in public order in London. The police feared that this would be repeated in 2001. The theme of all three of these demonstrations was protest against capitalism and globalisation, and related subjects, such as third world debt. There had also been serious violence and disorder at the demonstrations against the Criminal Justice and Public Order Bill in October 1994. The disorder on that occasion had been in Hyde Park, Park Lane, and Oxford Street, where widespread looting occurred. The Claimants agreed that there had been violence and serious disorder at these previous events. But they stressed it had been by a minority. The planning for MD01 reflected experience at these and earlier demonstrations, and recommendations made in the light of them, going back to Red Lion Square in 1974 upon which Lord Scarman reported, as noted above.

It is also common ground that a change appeared in some demonstrations in the 1990s in that protesters maintained secrecy as to the location of the protest. This was a tactic associated with groups involved not only in anti-globalisation protests, but also those involving animal rights, and one called Reclaim the Streets, or “RTS” (which was against cars, and the building of the M11). The police did not believe this group were amongst the organisers of MD01.

Demonstrations on these themes also resulted in very serious breakdowns in public order in other countries at about this time, including in Seattle on 30 November 1999 (the World Trade Organisation meeting), in Washington DC on 16 April 2000 (the International Monetary Fund meeting), in Melbourne on 11-13 September 2000 (World Economic Forum Asia Pacific summit), in Prague on 26 September 2000 (an IMF meting), and on 22 April 2001 in Quebec (a Summit of the Americas meeting). I have seen video images of some of these events on a DVD compilation put in evidence. There are scenes of crowds using considerable violence against police, and police using corresponding force against protesters. There are also scenes showing something of a carnival atmosphere, including bands and music. A protester died in an event subsequent to MD01 in Genoa.

Unfortunately, given the events of 11 September 2001 in New York, Washington and the air above a field in Pennsylvania, and 11 March 2004 in Madrid, there is good reason to fear that the authorities in this country will again have to consider what powers they can lawfully exercise against a crowd when the majority of them are not believed to be threatening unlawful action, while a minority of them are believed to be threatening serious disorder or terrorist acts.

The disorder that occurred at all these demonstrations is all the more disquieting, in that concerns about the poverty and suffering in the third world, which many demonstrators attributed to capitalism and globalisation, are concerns of the greatest public interest. These concerns are shared by very large numbers of people everywhere, whether or not they attribute these things to capitalism and globalisation. There has been no dispute in this case that the great majority of those demonstrating, including in particular Ms Austin (Mr Saxby was not demonstrating), were committed to peaceful demonstrations, and that those threatening or causing the violence were a minority, and included many who were not demonstrating at all, but just using the demonstration as a cover for crime. It is not suggested that the lawful activities in which Ms Austin was engaged, and expected to engage, were likely to provoke any one else to violence or disorder in response to what she was doing herself. She is not said to be in the position of the Irish lady with the orange lily, or Mrs Duncan in Duncan v Jones [1936] 1 KB 218. On the other hand, it is said that her presence in fact provided encouragement to, and cover for, those who were intent on violence (a position which did not arise for consideration in any of the authorities).

That has been the position since this claim was first advanced. The position was less clear at the time when the cordon was put around them, that is, when Ms Austin and Mr Saxby were part of a crowd. I shall have to return to what the police suspected at the time about members of the crowd, including the two Claimants.

In the event, there was some breakdown in public order on MD01 (as the occasion came to be called by the police), although on a very much smaller scale than in 1999 and 2000. The crowd control tactics adopted by the police were in practical terms counted a success. There has been no similar breakdown in public order in any of the thousands of political demonstrations that have taken place in London since MD01. But what is effective is not necessarily lawful. This case therefore also raises the question whether individuals who were not violent should suffer such measures taken to prevent violence and disorder by others - and suffer without compensation.

The event on 18^th June 1999 J18 had been billed as a “Carnival against Capitalism”. There was no co-operation with the police on the part of the organisers. The publicity material put out by the organisers was similar to that described below for MD01. The emphasis was on fun and games, and there was no explicit warning of violence. It started well enough, but after midday, the mood of a crowd of some 3000 to 5000 people changed. They masked their faces and caused violence in the City, Fleet St and Trafalgar Square. Eleven police officers required hospital treatment whilst 45 officers required first aid, in addition to members of the public who were injured by the protestors. Approximately £2,000,000 worth of damage was caused. Over 200 offenders were identified as being involved in acts of violence, including a range of public order offences, and causing grievous bodily harm to police officers. Common features of those arrested for offences committed at this event included a high level of alcohol or drug intoxication, a number of foreign protestors and a tendency to fail to appear to answer bail.

It was considered that the policing methods used on this occasion were flawed. Various recommendations were made as to co-operation between police forces, police training, and other matters, which were followed in the preparation and planning for MD01.

The incident on the 30^th November 1999 N30 was billed as “Reclaim the Railways”, but it coincided with the demonstration in Seattle. A demonstration was held at Euston Station without prior consultation with the police. Of course, where there is an assembly and no procession no notice under s. 11 of the Public Order Act 1986 is required, although that does not mean that the public can refuse to co-operate with the police, a point to which I shall return at the end of this judgment. There was an outbreak of serious disorder from a core element of about 200 protestors. This initially consisted mainly of missile throwing, with the remainder of the crowd, although not actively involved in violence, not leaving when violence broke out. An unmarked police car was vandalised and turned over and a police van was looted and deliberately set on fire.

A containment cordon was put in, and the crowd eventually became subdued. But the lack of co-operation from the crowd meant that the process of release took several hours. Besides a lack of co-operation, there was continued violence, attempted breakouts and further disorder by a group of 150 who went on to the King’s Cross area. Those who were released then refused to disperse, and this led to the build up of a crowd on the outside of the police cordon. A police officer was seriously injured. During the period of containment there were 32 arrests made resulting in 13 convictions and 6 prison sentences. Four of the protesters arrested were wanted in connection with offences committed at J18.

The event of 1^st May 2000 MD00, the previous year, was the occasion when, as everyone will remember, turf was torn up in Parliament Square, a statue of Churchill was defaced, the Cenotaph was daubed, and serious damage was caused to McDonalds restaurant in Whitehall. The organisers used the expression Guerilla Gardening. Large numbers of protestors were arrested at this event and convicted of public order offences. Nine members of the public sustained minor injuries and nine police officers sustained injuries. The total estimated damage is stated to have been in excess of £340,000. All this was in addition to a traditional Trade Union march and rally, at which there was the normal co-operation with the police, and no disorder.

Gold Commander at this event was Commander Messinger, and Silver Commander was Ch Supt Webb, who gave detailed evidence in his witness statement. 5,500 officers were on duty. The refusal of the organisers and the crowds to co-operate with the police was a distinguishing feature of all of these occasions. The publicity for MD00 also contained references to J18 and N30, suggesting continuity. They encouraged autonomous action. The violent protesters in Whitehall were pushed North by police commanded by Ch Supt Allison into Trafalgar Square.

There an absolute cordon was put round the crowd of 4000-5000. It lasted four hours. As protesters were released, there were further outbreaks of disorder. Groups of protesters then had to be escorted by the police along the Strand, where they continued to be disorderly although under escort. The delay in release was partly due to the need to gather police resources to be deployed to locations which needed to be protected from the possible violence of those who were released. Demonstrators in a second cordon in Parliament Square breached it, and 500 went out into Millbank and the crowd were eventually dispersed South of the river. There were further outbreaks of violence and missile throwing by groups as they reached Kennington Park. Police officers were assaulted. Ch Supt Webb observed that the loss of control over groups who had been released and reformed outside the cordon made effective policing very difficult.

This experience influenced his decisions and those of Commander Messinger and Ch Supt Allison on MD01. It was the similar lack of co-operation in the run up to MD01, together with the similarity of the anti-capitalist theme, which led the police to expect and fear a repetition in MD01. The Commissioner, through Commander Messinger, arranged for there to be some 6000 police on the streets. That is about as large a number of police officers as is ever brought on to the streets of London.

Large numbers of police are regularly brought out twice a year in London, at New Year’s Eve and the Notting Hill Carnival, both of which can attract crowds of up to one million. Otherwise even the largest demonstrations are policed with very much smaller numbers of officers. Even 1,500 officers is a large number for a normal demonstration with many thousands attending. Arrests are usually few. At a demonstration of about 75,000 demonstrators on 20 November 2003 there were 33 arrests, compared with the 107 arrests made at MD01, where there were only 5000, and where it was not practical to make arrests for much of the afternoon around Oxford Circus.

On MD01 the numbers expected to attend, and who did attend, were not large by London standards. To have 6000 officers policing about the same number of demonstrators is wholly exceptional. And yet on MD01 police resources were stretched to the limit, and more officers were needed. These officers were drawn from three forces. The other two police services involved in the joint operation were the City of London Police and the British Transport Police.

Demonstrations in London are very common. A list of all kinds of demonstrations (political, sporting, ceremonial etc) policed by the MPS in 2001 runs to over 350 pages, including brief details of each one. No demonstrations were banned in 2001, nor have any been banned since. Statistics are kept of the number of demonstrations policed by a sergeant and six constables for at least four hours. It is over 1000 per year. These demonstrations represent every known shade of political opinion and religious persuasion. No criticism was made to me about the MPS record on policing demonstrations generally.

INTELLIGENCE

Elements within the pre-event intelligence operation were listed in the Defendant’s Skeleton argument, including the following. These measures were not only intelligence gathering, but also served to prevent disorder arising. The need for them would have been reduced or eliminated had the organisers co-operated with the police.

The Minutes of a Strategy Meeting on 22 February 2001 record a Special Branch intelligence update. It includes:

“The organisers want a peaceful event but there will be several hundred who have had no part in the planning who will attend for ‘opportunist violence’”.

The Minutes of a meeting held on 28 March 2001, chaired by Silver, and attended by all Bronze Commanders. The Intelligence briefing from Special Branch included:

“A significant difference at this stage, when compared with last year’s event, is the lack of central organisation. However, the Monopoly Board has been widely profiled within the media and is still on website. The Special Branch Assessment is that there will be 500-1000 hard core demonstrators looking for confrontation, violence and to cause public disorder. That will be an opportunist group rather than part of any plan. There will be violence and disorder, it will simply be more difficult to predict”.

This remained the assessment up to the day itself.

There are further references to the legal advice being obtained to meet challenges such as the present action. Emphasis is placed on the need for all decisions made to be recorded and regularly reviewed.

Det Ch Supt Mitchell was cross-examined. There was no challenge made to the Special Branch assessment of the likelihood of opportunist violence. Det Ch Supt Mitchell said that his assessment had been that violence was highly likely, more likely than at previous events because the organisers lacked the experience of RTS. Even with RTS, who he said protested their non-violence, the activists planning events accepted violence was inevitable. The assessment of 1000 people who were likely to be violent was based, he said, on 10,000 people being present in all. He could not comment on whether the figures were proportionate, that is whether a lower number in the crowd would be likely to mean a lower number of violent people.

On 25th April 2001 the CO11 intelligence cells received a briefing. It includes:

There was no challenge to this, nor was it suggested that the police should not have held this view. Det Ch Supt Mitchell repeated this in oral evidence. DS Sully, who had participated in the briefing that day, also gave evidence on intelligence.

THE PUBLIC ARE INVITED AND WARNED

The information from the organisers

The protestor literature obtained by the police included the following. These were understood by the police to allude to direct action, violence or disorder in varying degrees of candour. In the context of the earlier events described above, the police were in my view reasonable in considering that the literature ought probably to be understood in this way.

There is a booklet 40 pages long on glossy paper size A5. It is said to be published by the London May Day Collective and is also available on the Internet at their website. It is entitled “May Day Monopoly Game Guide Anti Capitalist Action on Tuesday 1^st May 2001.” Under the heading Introduction it reads:

“After the expectation of the delays its finally here – the May Day Monopoly Game Guide. Welcome one and all! If you haven’t guessed already this initiative is based around the concept of celebrating May Day 2001, on Tuesday 1^st May, with numerous autonomous actions centred on locations around the Monopoly Board.

Whilst each action may be small the cumulative effect should be huge. For this to happen lots of groups need to be planning events in advance: occupations, sit-ins, pickets, blockades, mobile action, spectacles, street theatre, public speaking, banner drops, information points, music or in fact whatever it is that interests your friends, group, campaign or network. This booklet is designed to provide some initial information on the locations and perhaps provide some ideas. So what are you waiting for? Get plotting….”

On page four of the leaflet there is an illustration of a burnt out car and a burnt out coach with the caption “Collateral Damage; a necessary price to pay for the management of capitalism”.

“Sale of the Century” …“watch out for the signal at around 4pm, that’s all we can say at this point! ... P.S. Bring White Overalls, Crash Helmets, Padding and Fun!”

“May Day 2001 will see the streets of London and beyond filled with planned and spontaneous autonomous direct actions. Be they pickets, parades or imaginative stunts, the day is set to be a continual celebration of our resistance against capital, wage labour, state domination and hierarchy, culminating in a mass action centred on the jugular vein of capitalism in the UK - Oxford Street. This will be at 4pm and will resemble a carnivalesque street party.”

On the page for the Strand, there is a list of eighteen addresses with the street numbers given. Typical is one which reads: “Coutts and Co, Bankers to the rich and royalty owned by The Royal Bank of Scotland”. Another is for Oxford Street. The text reads as follows:

“ In 1886, the coldest winter England had seen for 30 years, 20.000 dock and building workers took to the streets following a rally in Trafalgar Square. Looting and ransacking shops they robbed and terrorised the rich in their clubs and carriages. This was to be repeated over 100 years later after 1990s 200,000 strong Poll Tax riots. Oxford Street is now the jugular vein of consumer capitalism in Central London and an epicentre of exploitation. Burger King, for example make workers clock off when they are not busy, though forcing them to stay. Pizza Hut offered a Spanish woman a job without pay to “help her English”. But the biggest rip off happens in the third world. Adidas pays its workers 6p per hour in Burma, where the military keep discipline. Gap employs children as young as 12 in its Cambodian factories. Nike pays children 20 cents per hour in China and gets them jailed when they form a trade union”.

There then follows a list of 25 or so businesses with their addresses and sometimes with comments criticising their policies. One of the properties listed is Niketown.

The May Day Monopoly flyers and guide also asked for cheques to be made payable to “Mayday 2000”, indicating a link with at least some of the same organisers as for the year before.

There are twenty imitation Monopoly card stickers covering various locations in Central London, of which eight referred to Oxford Street. The stickers all encouraged people to “Advance to Oxford Circus for free money and fun!” Three cards in particular also encouraged protestors to:

“EXPECT NOTHING ... TAKE EVERYTHING”

“REVOLUTIONISE YOUR CONSUMER RIGHTS - TAKE THE LOT!”

“CREATE YOUR OWN WEALTH - DESTROY THE NEED TO BUY”

In the context of the preceding events described above, I find that one reasonable interpretation of these slogans is as incitements to protestors to loot shops. Other material includes:

The websites and internet discussions monitored by CO11 generated intelligence as to some of the protestor’s tactics or intentions:

A document of significance to the claim of Ms Austin is one issued by an organisation called Globalise Resistance. It bears the same website address as the May Day Monopoly guide. The document includes the following:

“ Protest against third world debt

- 2-3 pm. World Bank Office, New Zealand House, corner of Pall Mall and Haymarket. Near Trafalgar Square

- dress up as fat cats to help distribute the cash

- bring your banners, whistles and drums

- come together with protestors from across London

- 4 pm Oxford Circus

called by Globalise Resistance as part of a day of anti capitalist protest under the banner of May Day Monopoly … our world is not for sale”

Det Ch Supt Mitchell told me that Globalise Resistance are thought to be a front for the Socialist Workers Party, which he described as the largest Trotskyist group in the United Kingdom. Ms Austin distinguished it from the Socialist Party, whose literature she was distributing.

When it appeared that the organisers of these events were not notifying the police, letters were sent by Mr Yates to fifteen people who the police thought might be connected with the organisation of the event. There were no responses, although one website contained a quotation from such a letter, with the comment:

“I think what they are doing shows how worried they are. Perhaps they think that by harassing people, they will have an effect on what’s going to happen. They obviously don’t have a clue.”

A group known as Critical Mass or CHARM (“Cyclists Have A Right to Move”) had their own cycling based event organised in the morning. The police had not been notified of this. This group has organised many previous events without notifying the police, and on the basis of this experience the police considered that it was unlikely to result in significant disorder. However, the Oxford Circus meeting was being promoted alongside this earlier protest.

There were some leaflets and other documentary evidence that animal rights activists, who were notorious for unlawful direct action, were either involved in the planning of an event, or were planning to attend.

The police delivered a letter warning of possible disorder to many premises which they assessed to be vulnerable to any disorder.

The “Wombles” first appeared as a group in the United Kingdom in 2001. On 11^th March 2001, twelve to eighteen Wombles demonstrated outside Niketown and threatened staff.

On 6^th April 2001 there was an anthrax hoax sent to a Breakfast Television channel, to be passed to the Anti-Terrorism branch at Scotland Yard. The warning was of anthrax released at five underground stations. The threat ended:

“We @re the people. Ya Basta! Wombles. Codephrase is *Operation Dursley*”.

The use of the code phrase “Operation Dursley” linked the hoax to the forthcoming May Day protests, for which the police intelligence operation was called “Operation Dursley”.

The Wombles held a meeting on 21st April 2001 in Conway Hall, attended by over 90 people. The speaker confirmed that he had just been asked to accept a letter asking him to speak to New Scotland Yard, which he refused. The content of the talk included: background to the movement; confirmation that those implicated were not scared of a “show trial” after May Day; and ‘Sale of the Century’ - the idea being to hand out Monopoly money to challenge the monopoly of money to be used to buy food from each other. The Wombles describing themselves as a “confrontational non-violent direct action group”and stated that in the past the police had assaulted people in white overalls for protesting peacefully.

On 22nd April 2001 the Wombles organised a training day in Hyde Park. Uniformed officers attended, as well as several television camera crews. About 30 potential protestors attended. The Wombles practised getting in and out of their protective equipment and also coordinated manoeuvres, such as a wedge shaped advance and extraction of a person. The police observers thought this was either a “rescue tactic”, or rehearsing the abduction of a police officer. It was a well organised and disciplined day of training. After the event, one member of the group was stopped and searched for drugs. The agenda for the training day was seen, together with a plan showing positions of police, banners, white overalls, the sound system and a party.

The warning from the Mayor and the Press

One of the bundles before the court includes nearly 200 pages of press cuttings dated late March and April 2001 containing articles from a wide variety of national newspapers and from the London Evening Standard all of them expressing fears of violence at the demonstration expected to take place on 1^st May.

On 24^th April 2001 there appeared an article in the Evening Standard by the Mayor of London Ken Livingstone. His views were reported in other media, but here they are published in full. The article is headed “ As the Spectre of May Day rioting returns to haunt the Capital, Mayor Ken Livingstone urges Londoners not to be taken in by the organisers call to arms”. It continues as follows:

“On May this year a demonstration will take place in London calling for the cancellation of Third World Debt and the eradication of poverty; a stop to the privatisation of the tube; an end to environmental pollution. I support all those objectives and so do many others. I therefore want to explain clearly why all Londoners should not go on this demonstration.

The right to peacefully protest is one of the most important we possess many millions of people gave their lives in war to defend it; others suffered persecution to achieve it. If there were an attempt to limit this right then Londoners, and the police know that I would be one of the first to defend it.

But on 1 May we are faced not with an attempt to exercise the peaceful right to protest but by a deliberate attempt by small groups of people to promote violence and destruction of property in London. Furthermore this violence is central to the objectives of those organising this action. There is a procedure for all those who wish to organise peaceful protest it is to contact the police and work out all the details of the demonstration as early as possible. The Metropolitan Police has long experience of such activity and an ability to handle crowds of up to hundreds of thousands of people. This was known to the Anti- Apartheid Movement, CND, the campaign against the Industrial Relations Act and many others whose protests peacefully influenced British policy and history.

Those organising the “May Day Monopoly” protest on 1^st May have deliberately chosen an entirely different course. They have intentionally refused any contact with the police. Rather than trying to minimise the possibility of violence or disorder on May Day this is clearly an attempt to maximise it. Equally clear is the image chosen by these organisers to project on the Internet and elsewhere - masks and uniforms of boiler suits padded to protect them from the police. Apart from a tiny handful of Londoners who came from dictatorial regimes, who must protect themselves from dangers to their lives if they exercise their right to protest, there is no excuse whatever for anyone to appear on demonstrations concealing their identity. If they are urged to do so it is because those calling for it wish to commit illegal actions and conceal themselves from the police.

The stickers produced to be used in Piccadilly Circus with the slogan “revolutionise your consumer rights – take the lot” are clearly aimed at smashing in shop fronts as are the parts of the May Day Monopoly website which lists specific commercial targets in the West End… I have met the Commissioner of the Police for a full briefing of the planned May Day events. I have asked him to ensure London is safe on May Day. Anyone whose intention it is to engage in criminal activities should be arrested and charged. In particular, within the law, I would hope that attention would be paid, even before any trouble starts, to those attempting to conceal their identity.

While operational policing is under the Commissioner’s control, and not mine, I would like to give the clearest possible political message to ordinary Londoners. Don’t be fooled. What is planned by May Day Monopoly on 1 May is not a peaceful protest that may go wrong. It is a deliberate attempt to create destruction in the capital. There is no way to share some of the aims of this demonstration and participate in it without furthering the aims of the violent people who are its core. There are other peaceful demonstrations on 1 May – for example a trade union one starts at Highbury Fields at 12 pm. [and it gives the contact details] I urge all Londoners to stay away from the May Day Monopoly protest on 1May”

It is correct in law that policing is under the Commissioner’s control and not the Mayor’s. As part of the obligations of democratic accountability, the police liaised with representatives of the Police Complaints Authority and the Metropolitan Police Authority, who were given a free hand to observe the police operation, both at command and front line level.

Few people in London can have been unaware that these views as to what was likely to occur on MD01 were views which were very widely held, and were likely to be held by the police.

THE PLAN FOR THE DAY

There was considerable preparation by the MPS for MD01. Only a little of it is documented. Mr Starmer QC devoted a substantial part of his cross-examination to criticism of what the documents do show. With the support of Mr Gilbertson, he advanced the case that really only one tactical option had been considered, namely an absolute cordon at Oxford Circus. But this is far from clear. What the training does appear to have concentrated upon is how to deal with groups of protesters in numbers up to 50 or 60 in different locations, not one group of over 1000 demonstrators. There appears to be little training for that, or how to deal with them if that materialised. That too is a criticism advanced by Mr Starmer QC.

At a Strategy Meeting on 22 February 2001, the police strategy under consideration is said to be:

“It is put forward for discussion that the areas covered by Sectors 1-5 [City of London, TowerHamlets and Hackney, Islington and Camden, City of Westminster and Southwark and Lambeth] are subject to High Profile Policing, with reserves to be deployed to deal with any seat of conflict or disorder by isolation and containment”.

Cross-examined about that, Commander Messinger said that containment does not just mean imposing an absolute cordon, and it did not mean that here. It is in one form or another a routine police tactic, and the expression ‘isolate and contain’ will appear in 99% of planning documents, as a response to disorder.

There was also planning for claims such as this. Commander Messinger asked that someone should look at how to communicate with demonstrators “to negate defences of unlawful imprisonment used by protesters after containment tactics were used at May Day 2000”. The public address system at Oxford Circus is a result of that experience. On MD00 the attempts to communicate with the crowd had been made with public address systems mounted on vehicles, and it had not proved effective.

On 9^th March 2001 Mr French discussed tactics. There is no mention in the minutes of a containment at Oxford Circus or anywhere else. What is said is:

“Simultaneous actions at various locations all over London means planning with resilience for both Command Team and Resources used”.

And in the summing up Commander Messinger said:

“Potential for violence although not face to face there is likely to be considerable running around by reserves”.

One of the main points in the Claimants’ case on this is the entry on the document headed “Tactical Plan and Protocols” and prepared for a meeting on 28 March 2001, which states:

“The overall tactical plan is being developed to ensure the strategic intentions for this event can be achieved. It is based upon the following tactical options:- (i) isolate (ii) contain (iii) dispersal/arrest as appropriate”.

Mr French said this was not a tactical plan, but an item for discussion. He rejected the suggestion that they are all parts of one plan. I accept that. It is far too vague to amount to a plan. While these may be steps of a single plan, they may also be true options. It is possible to do any of them without doing all of them, and the police commonly do them independently. These are not precise terms of art.

I do not accept that the only tactical option offered was containment of demonstrators at a single specified location. For what was actually planned, the Operation Order and the Briefings seem to me the best evidence. In addition, inferences can be drawn from what in fact happened. There were in fact five containments by way of absolute cordons on MD01: Oxford Circus, Holles Street and near Tottenham Court Road in the afternoon and evening, following two in the morning, one at Elephant & Castle (less rigorous than the others) and one at Melton Street near Euston. Only those at Holles Street and Tottenham Court Road were in immediate response to substantial violent disorder. At Elephant & Castle the crowd were allowed to disperse without being controlled, although an attempt was made, with limited success to control where they went as they dispersed. In addition, as noted below, there were plans for containments at Marble Arch and St Giles’s Circus, which were not implemented.

Besides containments, there were a number of occasions on which groups were prevented from having access to certain bridges and streets by the imposition of cordons which left them free to go elsewhere, which therefore did not raise any issues of imprisonment or Art 5. And in the area of Oxford Circus itself, police tactics after 2pm included attempts to prevent crowds converging on the Circus from obtaining access to it. This tactic involved placing cordons across Oxford Street to the East and West of the Circus, and across Regent Street to the North and South, in each case facing away from the Circus. Cordons were also placed across streets by which crowds attempted to enter Oxford Street and Regent Street. Most of these cordons did not involve containment, and so could not amount to imprisonment or deprivation of liberty.

The case studies for the training days on 23 and 30 April also show other tactics being planned for. They include how to respond if staff inside banks became concerned at the presence of protesters outside, and then inside, their premises, and what to do if information is received that coach loads of protesters are heading for London from Essex, or if protesters occupy the Underground.

What the police were expecting and how they were proposing to fulfil their functions was set out contemporaneously in the Operation Order and briefings for the day. The Operation Order dated 23^rd April 2001 is the formal document setting out what had been prepared jointly with the three police forces to deal with demonstrations planned, or otherwise that might occur, on 1^st May. The three forces were City of London Police, Metropolitan Police and British Transport Police.

The document records that two events had been notified to the police (under s.11 of the 1986 Act) namely a May Day Organising Committee March and Rally and a Young Socialist Students March. The first of these was to gather at 11 am in Highbury Fields and march, by a route which is described, to Clerkenwell Green, where they were to hold a short rally before dispersal. The Young Socialist Students March was intended to gather in Malet Street outside the University of London Union from 18.00 hrs. It was to march to Queens Crescent NW5 via a route through Tottenham Court Road, Hampstead Road and other streets ending at the Community Centre and a meeting in Queens Crescent.

The Operation Order recorded that intelligence indicated that activists representing a broad coalition of environmentalist, anarchist and left wing protest groups intended to stage various demonstrations based on the locations from the traditional game of Monopoly. There is an Appendix listing 26 separate locations (including the two processions that had been notified). All but one have times, starting from 07.30 hrs through to 16.00 hrs. The second last is “Sale of the Century” at 16.00 hrs in Oxford Circus. The last item on the list is the Young Socialist Students May Day March notified for 18.00 hrs at Malet Street.

The locations are very widely spread. They include: CHARM at Marylebone and Liverpool Street stations at 7.30 in the morning; a picket in front of the World Patent Protection Summit at 8 to 10 am in Great Queen Street WC1; a demonstration at 08.30 in the Pall Mall area against the arms trade; an investiture between 08.30 and 13.00 at Buckingham Palace; a Veggie Burger Give away at King’s Cross McDonalds at 09.30; a “Peacenik in the Park”, Victoria Embankment Gardens; at 11am is the Changing of the Guard at Horse Guards; at the same time at Parliament Square an Anti-Capitalist Anti-Globalisation demonstration; and again at the same time an event at Speakers Corner, Hyde Park; at 11.30 another event at Buckingham Palace is the Changing of the Guards; at 12 o’clock in Malet Street there was to be a Student Action Against Fees; at the same time in the Strand there was to be a demonstration outside Coutts Bank under the banner of “Cancel Third World Debt”; at the same time at Elephant and Castle a South London May Day Collective and at Trafalgar Square London Animal Action-Feed the Birds; three events at 13.00 hrs listed as a meet and action at Piccadilly Circus; a protest peacefully to protect the planet at Angel Islington; and a protest against hoteliers in West Cromwell Road; between 14.00 and 14.30 hrs are listed four events, one at Pentonville prison to show solidarity with prisoners; one at Speakers Corner for Critical Mass Cyclist Speeches; and one at Conduit Street for the London Animal Action - Hockley Furs demonstration; and one outside the World Bank Office, Haymarket/Pall Mall, the Globalise Resistance event to highlight debt issues and publicise the Genoa protest. The final event is the 4pm Oxford Circus event.

The Operation Order sets out the strategic intentions of the operation as being:

“Provide public reassurance and ensure public safety:

Facilitate and police all legitimate protest;

Prevent public disorder;

It has not been suggested by the Claimants that that did not fairly and honestly set out the real objectives of the MPS on MD01. Not has it been suggested that the MPS should have had any other objectives.

The Order then sets out the responsibilities of 21 senior officers. In overall command as Gold Commander, is Commander Messinger. The Forward Commander, Silver, was Chief Superintendent French. The twelve Bronze commanders are then listed with their different sectors. Five of the sectors are geographical corresponding to the Boroughs of TowerHamlets and Hackney, Camden and Islington, City of Westminster South and North, Southwark and Lambeth. The other sectors refer to specific functions, one of which is the May Day Organising Committee March and Rally. There are three Reserves Sectors. The ones that are important for this case are Ch St Mackie for Sector 12 Westminster North, and Ch Supt Webb, Reserves Bronze 8.

The general policing arrangements are set out in a lengthy Appendix. Sector 12, Ch Supt Mackie, is supported by three sub-Bronzes and a Tactical Advisor. The assignment provides for high visibility policing between 07.00 hrs and 13.00 hrs. Sector 8 provides for CS Webb to have a single sub-Bronze, CS Allison, now Commander Allison, together with a further sub Bronze Chief Inspector Robinson, and a Tactical Advisor. The arrangement is simply stated to be “as directed”.

In the Operation Order and the Appendix there is stated to be a speaker system at Oxford Circus to be available from 12.00 hrs.

The order continues with provision for traffic arrangements, Criminal Justice and CID arrangements and a Forward Intelligence Team.

Provision is then made for briefings and other matters including dress, radio channels, hospitals, charge centres, transport, complaints and numerous other practical matters.

The briefings were on Thursday 26^th April at New Scotland Yard. The first is from Commander Messinger, and his text is in evidence. He referred to the schedule of events attached to the Operation Order describing it as an “evolving document”. He noted that in spite of having sent letters, the police had had no negotiations or contact with the organisers for these events other than the two already referred to. He described the route for those two notified marches.

Dealing with the list of events in the Appendix, he stressed that it was his intention that the events at Buckingham Palace should pass without disruption. Having listed all the other events on the Appendix he noted that “It would appear all those attending [would be] coming together at Oxford Circus at 4pm”. He added:

“It is suggested that some of these events may not materialise, however we must be alert to them taking place, and demonstrators moving from one location to another. It is also likely that other impromptu actions will take place that we are as yet unaware of. We must always be conscious of history and the events that have previously taken place in the City of London, City of Westminster and Euston”.

Commander Messinger then repeated the strategic intention of the operation as set out in the Order and said:

“ My strategy is to facilitate lawful and legitimate protest, prevent and deal with criminal activity making arrests where appropriate, isolate and contain disorder ensuring a controlled and managed dispersal, again making arrests where appropriate”.

He described his team for the day as very experienced and the best team that London’s police can provide (the experts who gave evidence expressed the same opinion). Commander Messinger said it was to be a totally professional and proportionate policing operation and that was not negotiable.

Immediately following Commander Messinger’s briefing, there was the briefing of Silver. Mr French stated that he would go into more detail about the policing arrangements. He reminded his team of tactics on previous occasions, of the need not to over react, nor to react to rumour and speculation, but to expect diversionary tactics. He said deployments were designed to cover as wide an area as possible so that the police would have a chance of preventing any stunts taking place, deterring them by their presence, and very importantly providing reassurances to the people of London going about the daily business. He then described the different sectors. Levels I, II and III refer to police officers with different levels of training for public order policing. Level I is the highest, being the Territorial Support Group (“TSG”) consisting of over 800 officers. Level II officers number about 1200 and are provided with protective equipment not made available to Level I officers. He continued:

“Each Sector will have Level III officers performing high visibility policing. Their role is primarily to provide reassurance and deterrent. They will be supported on the Sector by Level II officers providing a sector reserve or specifically deployed. Then over and above this we have the event reserves, consisting of Level II and Level I officers. And finally there are contingencies to bring in from the Boroughs, if required, in coaches which are put aside for this purpose. Whilst we aim to prevent criminality and violence throughout London, there are certain areas within this operation which are particularly sensitive and will be kept safe”.

That is a reference to the Palace of Westminster (Parliament), Downing Street, Buckingham Palace and the City of London police area. He said that if event reserves were deployed to any sector, they would work under the command of the geographic sector Bronze. Then he mentioned specific arrangements in relation to Buckingham Palace and the Palace of Westminster. He reminded them of events in Seattle and the previous weekend in Quebec.

After these parts of the briefing he moved on to deal with release, which is discussed below.

The briefing then continues referring to the policy for making arrests. This was that they should be made only if sufficient resources and transport are available to do it cleanly and decisively. He refers to handling building occupations and civil trespass and other matters. He then continued:

“If decisions are made to contain any groups we will do it in such a way that we can divert the traffic around them and, as far as possible, keep the normal business of the community running. We must not overlook the value of talking to participants, it can be the case that if we ask the protesters to move, enough of them will do so to make the remainder feel vulnerable and move on.

It will fall to me to make any decision as to the authorisation of any Section 60 Order. …

Normally at this point we go through various scenarios and outline our likely tactics but, on this occasion, we have had to be more general because of the fluidity of the situation and the unknown nature of the events of the day. We will remain flexible to respond to the activities as they arise”.

This document was referred to by Mr Starmer QC in his opening speech and in his cross-examination of Mr French. It was not suggested that the Briefing failed to communicate his true plans.

The briefing then moves on to specialist resources such as climbing teams, a barricade removing vehicle, dogs, horses, the helicopter and many others.

The media publicity was such that the police issued press releases. The Commissioner himself, Sir John Stevens, issued one on 30 April as follows:

From the foregoing I conclude that the overall plan for the day was above all one of remaining flexible. The first method of policing proposed was to use high visibility jackets with large numbers of officers, a total of nearly 6000 (not including mounted officers). Of that number, the Operation Order provides that 4,663 were to be Metropolitan Police Officers on foot duty, with the remainder being officers on traffic duty and other duties including other officers from the City of London Police and British Transport Police.

Those in charge of the operation clearly contemplated that the final event of the day would be at Oxford Circus at 4 pm, and provision had been made in the form of the Speaker System, which was to be available from noon. Apart from that, the police had little idea of what to expect or how they would react to it if and when it happened.

There was a minor development on 30 April 2001 (the day before MD01) at 11.40am. Melanie John, the organizer of the Globalise Resistance event, attended a meeting with PS Dallimore. She filled out a form stating that there would an assembly outside the World Bank office in New Zealand House at between 2pm and 3.30pm, and that it would move off at 3.30pm to 4pm. She estimated that 200-600 people were likely to attend. No procession or route is recorded. What is noted by PS Dallimore is that the start time was 1330 and that: “She did say that she expects those attending the WBO to go on to Oxford Circus afterwards”. PS Dallimore gave evidence in a witness statement, and was not cross-examined. There is no evidence in any form from Melanie John.

This information is not materially different from that already included in the Operation Order. Gold or Silver were not specifically informed of it.

EVENTS UP TO MIDDAY

The decisions of each senior officer are recorded in a standard form printed document headed “Public Order Decision Log”. The purpose of the form is set out in the printed text as follows:

“This log is designed to act as a way of recording decisions made during public order events. It is designed to capture the rationale behind those decisions and not as a way of recording deployment. To these ends, the negative aspects to the decision making process as well as the positive should be included in this document. The incident and course of action boxes must be completed at the time of the incidents. The rationale must be completed by the Command Team member and should be completed as soon as practicable afterwards”.

On the next page there is a section “Plan for Human Rights”. It reminds officers that they must act in accordance with the HRA principles of Proportionality, Legality, Accountability and Necessity. These are explained succinctly on the same page. Under the heading Legality it states:

“ Police action which interferes with the right under Article 5 must be supported by powers provided by statute or common law”.

The page also contains the following:

“Recording of decisions, options considered and reason for decisions will further provide protection from claims Convention rights have been unjustifiably interfered with.”

Included in Mr French’s log is a copy of the Section 60 authorisation which he signed on the morning of 1^st May, the grounds for which I have set above.

The following entries in Mr French’s log relate to significant incidents that occurred on 1^st May. “Bx” is an abbreviation for Bronze.

“Location: Euston Road … Time 11.10 am. Nature: demonstrators travelling E from O[out]/S[ide] K[ing’s Cross]. Course of action: to Bx 3 – demonstrators to be facilitated East and held Euston Station if possible moved from Euston Road to side street(s) and dispersed N. Rationale: large groups of cyclists and demonstrators on foot (approx 400) to be held on basis of anticipated B[reach] of P[eace]. Based on intelligence and reasons for imposition of Section 60 order and other behaviour around K[ing’s Cross]. Specific intelligence from F[orward] I[ntelligence] Teams that “hard core” included in this group. In addition unlawful march/procession (no notice) and causing severe obstruction.

Location: Bridges North (Westminster, Lambeth, Waterloo, Southwark)…. Time: 1 pm. Nature: protest at Elephant and Castle. Course of action: To Bx 5. Prevent demonstrators travelling N en-masse. If need be hold on a bridge. Rationale: protest from Elephant and Castle became unlawful procession (no notice) already breaches of peace. Suspected further breaches of peace if allowed to go to Oxford Street area as a group.”

The controlled dispersal of the crowd at Melton Street, which included s.60 searches, took some two hours and twenty minutes.

The event at Elephant and Castle had been organised by the South London May Day Collective. This started at about 12 noon. For their own safety, and that of police and motorists, the protestors were encouraged by the police to gather in the middle of the main roundabout, where there was plenty of room. They numbered about 250. Nevertheless, the protestors spilled out onto the roadway. They were loud, excitable and not particularly cooperative. They were repeatedly herded back on to the roundabout. Supt George (Bronze 5) was unable to identify any organiser with whom to negotiate. Nonetheless he was able to facilitate this protest. His decisions, and his fear of a breach of the peace, are recorded in his contemporaneous Decision Log. He did not say that there was in fact any breach of the peace.

Just before 2pm the group dispersed in what Supt George refers to as a “starburst”, heading off in different directions. He did not have the resources to control the various smaller groups that formed out of the larger crowd. One of these groups of about twenty people was included in a containment that was not impassable. They were told they would not be allowed to cross the river and eventually went on their way.

Supt George gave evidence that had the group been allowed to march as a group North across the river, there was no doubt in his mind that they would have caused serious disruption, given that it was a working day. He also considered that there was a high risk that breaches of the peace, if not serious disorder, would occur. One reason for this fear was the presence of a mobile pedal powered machine made from bicycle parts which had loudspeakers and amplified music. He had no doubt that this would act as a focus for the crowd, including those who might cause disorder. He did not cause the group to be searched under s.60. This was partly because he had limited resources and partly because he thought that that might ignite the situation.

The TUC march, attended by some 600 demonstrators, and Young Socialists’ march, attended by some 70 demonstrators, each passed off without incident.

Of the other events expected to take place, a number were attended by only a handful of people, or by no one at all. Some 130 cyclists did assemble at Marylebone Station, and a further 60 at Liverpool Street Station. They joined together at King’s Cross at 9.30 am, and rode around London until 4pm. At 11 am some 80 protesters built a cardboard hotel in Speakers’ Corner in Hyde Park. The demonstration at 12 noon outside Coutts Bank was attended by about 150 peaceful protesters, including Ms Austin. At the same time a further 100 demonstrators attended a demonstration about student fees in Malet Street. They moved to Torrington Place. At 12.45 pm one of them was found to have a Womble kit in his rucksack.

Other events that morning included the following. At about 7 am there were some 80 protesters at premises called the Bacon Factory in Suffolk Street. They would not say to the police what their demonstration was. By about 8am there were a number of people present there wearing body armour. Just before 9 am the group left wearing masks and padding, one carrying a blue tarpaulin. Many of them were searched under the s.60 authorisation that had been given at about 7.30 am.

Just before 11 am the British Transport Police at King’s Cross reported information that the singing of the Wombles theme song would be a sign for knives to be drawn, and that there was a plan for a demonstration in Whitehall to block the traffic at 2pm. Various warnings were received. For example, just after 7 am there was a warning given of a device planted in the Underground. Minor disturbances occurred at different locations.

The video evidence shows the following events about this time. At 12.24 it can be seen that the traffic was flowing freely along Oxford Street through Oxford Circus while a group of youths pin up a slogan on the Niketown hoarding. At 12.28 the traffic was still flowing freely while a small group gathered outside Niketown. Shortly afterwards a large group of cyclists was able to ride freely westwards towards Oxford Circus accompanied by police motorcyclists. At about 12.45 pm cyclists reached Oxford Circus and sat down on the ground in the middle of the roadway stopping all the traffic. Shortly afterwards they remounted their cycles and moved off westwards.

The picture also appears from the radio log. The timings on the log are not exact. Up to about 13.30 the radio traffic comes from a number of different parts of London including Hatton Garden, Highbury Fields, Oxford Street, Piccadilly, Shaftsbury Avenue, The Angel, Elephant and Castle, Trafalgar Square, The Strand, Pentonville, and Kennington. Groups of various sizes are reported on in all of these places.

At about 13.30 the focus of the calls is in the area of Piccadilly Circus, Waterloo Place and Haymarket.

THE PROCESSION UP REGENT STREET

London is, of course, not the headquarters of the World Bank. Its offices are in New Zealand House. This is a large modern office block at the bottom of Haymarket, on the corner with Pall Mall. The windows advertise holidays in New Zealand. The offices had been closed since 10 am. Measures were taken by the police to accommodate the World Bank demonstration. Crowd control barriers were placed outside New Zealand House and on the pavement on the opposite side of the road. This would allow protestors to protest without obstructing the highway, or putting themselves or other users of the highway at risk. This was done after Supt Plowright, who was Bronze 12(1), had contacted Melanie John on her mobile phone. The positioning of the barriers was in accordance with her requests. At that time she still said that she expected 200-600 demonstrators.

The demonstrators themselves started to assemble at about 12.45. They complied with requests to keep within the barriers, but were generally uncommunicative with the police. By 1.40 pm the crowd had grown to 500-1,000. The police resources became inadequate and protesters spilled on to the road. At 13.30 Ms Austin can be seen on the video arriving from the direction of Trafalgar Square, looking relaxed and carrying leaflets.

A group of about 200 demonstrators arrived from Piccadilly Circus, including cyclists, and blocked Pall Mall. Some of those present before the arrival of this group had worn masks, which they removed when asked by the police. The new group included many wearing masks. Supt Plowright’s experience was that men wearing masks are likely to be preparing for violence against property or the police, and he felt the atmosphere to be intimidating.

Ms Austin in her witness statement says little about this protest. She states that the atmosphere there was peaceful and positive. There was a very high police presence and also a noticeable media presence. In her oral evidence she stated that she had in fact reached that demonstration after previously attending a demonstration in the Strand outside the premises of Coutts Bank.

From the protest outside the World Bank offices she and other protesters walked in to Pall Mall and turned right into Lower Regent Street up to Piccadilly Circus and from there up Regent Street to Oxford Circus. She describes the protestors as being peaceful and good-natured, friendly and without aggression or violence. She said that there was no reason to imagine that any violence would start. Again she noted a high police presence on the route.

Mr Mulholland is Ms Austin’s partner, and was with her that day. His evidence is a little more detailed. He said that they, and a group of several other Socialist Party members who they had agreed to meet, took part in the protest outside the World Bank offices at about 1 pm. He and other demonstrators were very unclear about what they should be doing. After about an hour most people drifted off, he said. As people started drifting away, he said, they would discuss going to Oxford Circus. He and his friends decided “to drift along with the crowd, as not much was happening outside the World Bank”. The clear impression from his evidence is that this was spontaneous and not part of any pre-arranged plan. He had already said there was no set route for the demonstration. He described what he said was the peaceful move to Oxford Circus and the carnival atmosphere prevailing there when they arrived.

Ms Austin and Mr Mulholland are highly articulate people with considerable experience of demonstrations. It is a striking feature of their evidence that neither of them gives any explanation for going to Oxford Circus at that time. Nor do they say what they expected to happen when they got there. The impression of “drifting off” is not consistent with the video images, or with the police evidence.

Amongst other views in the video evidence, there is an image of the demonstration in the Strand outside Coutts bank. It is a peaceable demonstration on the pavement causing no more than reasonable disruption. At 12.45 there can be seen a quite small group outside the office of the World Bank in New Zealand House. The traffic is flowing freely and the atmosphere appears relaxed. At 12.47 the crowd outside the World Bank is still small and a man on a megaphone is chanting, “Our world is not for sale”. By about 1 o’clock people have arrived at the World Bank office with placards and signs and a somewhat larger group begins to spill out into the roadway. Shortly after 1 o’clock people can be seen handing out monopoly money. At 1.30 (when Ms Austin arrived) the crowd is noisy but nothing remarkable. Just before 1.30 a large group of people walk South along the Haymarket on the West pavement, causing little disruption. There is a man in a gas mask, who could be seen earlier at Piccadilly Circus. At 13.38 the crowd can be seen moving west along Pall Mall chanting noisily and carrying their anti-capitalist banners such as “F***K CAPITALISM”.

Supt Plowright said in his witness statement that he endeavoured to marshal his forces to contain and clear the large crowd that had formed. He said that as he did so, without any announcement, the entire crowd moved off together with everyone who had demonstrated outside the World Bank. It appeared to him that the move was pre-planned.

It is not suggested that Ms Austin planned anything. But the picture painted in her evidence and that of Mr Mulholland does not fit the large noisy crowd, moving as one, along Pall Mall in a determined fashion. However, their evidence is consistent with that of the police witnesses, in so far as they say that they did not foresee that there would be a march from the World Bank offices to Oxford Circus, whether at 2pm or at any other time.

That the police were taken by surprise appears clearly from the radio logs. Supt Plowright notes that he seems to have got the groups from Piccadilly Circus down at the Haymarket and asks for support. Later he reports to the Control Centre that they can probably see on camera that the whole demo has moved into Waterloo Place North and that he has deployed officers to take up the rear. He estimates that the numbers are about a thousand at that point. A decision is made to put a cordon across Cockspur Street. Bronze 8, Ch Supt Webb, reports that he is at the rear of the march, plotting the rest of his units to be at Oxford Circus to hold the South. Supt Plowright reports that the march is at Piccadilly Circus. Control asks whether there are sufficient officers in Regent Street to police this march as it goes North. The response from Ch Supt Mackie, Bronze 12, is that there are insufficient police. Ch Supt Allison is recorded as confirming that the crowd cannot be kept in Regent Street because they would be able to get away “round the back doubles” that is through the numerous side streets in that area. Mr Mackie is reported as speaking from Oxford Circus saying:

“I need the Bx* 2 unit to the North side of Oxford Circus a.s.a.p.

I’m standing here and I’m virtually on my own”.

Radio traffic on the intelligence cell notes that people in the demonstration are wearing suits jackets and ties beneath other old clothes. The mood of the crowd is described as loud and vociferous but not overtly aggressive. The intelligence officers say they have heard that the intention of the crowd is to block Oxford Circus. The crowd were walking up both sides of the road in Regent Street bringing traffic to a halt and walking into the oncoming traffic. An officer in Glasshouse Street is recorded reporting, “ We’ve got demonstrators moving bricks from a lorry junction Glasshouse Street. We have no police officers with this demonstration other than FIT teams”. FIT stands for Forward Intelligence Team. A white male with a Mohican haircut attacked a parked Jaguar car in Regent St at the junction with Glasshouse St.

The traffic on the intelligence cell recorded that at Piccadilly Circus they noted some demonstrators in possession of high-pressure water pistols, anti pollution type masks and goggles, and plastic bin bags, which they suspected probably contained material for body armour. Mr French said in evidence that this information did not in fact reach him before he made his decision to contain. Such was the size of the control room and the volume of material coming into it that not everything was reported to him. Accordingly his decision was not in fact based on this information.

By the time they reach Piccadilly Circus the crowd can be seen to be with a group of cyclists occupying the roadway. By Piccadilly Circus the crowd has grown very large, and there is little sign of the police before the end of the procession. There is a very thin police cordon across Coventry Street. Individuals can be seen running easily between the police officers on the cordon. All the police officers were wearing bright yellow high visibility jackets. A number of police white carrier vans took up the rear. The rear left Piccadilly Circus at 13.55.

The crowd began to occupy the whole of Regent Street as it approached Oxford Circus. At the front of the crowd there was a red police van and a handful of officers. As the crowd entered Oxford Circus they stopped spontaneously. There were two or three police officers and cars facing South from Regent Street North. The traffic was flowing freely in all directions immediately before that.

A large number of pedestrians can be seen leaning on the barriers, which enclose the pavements all round Oxford Circus. They were looking at the demonstration as it arrived. There was a lot of cheering, clapping and putting of hands in the air as the crowd arrived carrying their very conspicuous banners. At that point it is easy to see a clear separation between the pedestrians, who were behind the barriers on the pavements, and the arriving demonstrators who were in the middle of Oxford Circus. It may be that some of the demonstrators who had come to Oxford Circus from other directions earlier were amongst the pedestrians upon the pavement, but there were no tourists or shoppers in the road. A car caught up in the crowd managed to pass through it very slowly, stopping and starting to avoid the people in the crowd. A number of the people coming up Regent Street can be seen wearing face masks. A missile was thrown just after 2 pm by someone in the crowd.

THE DECISION TO IMPOSE AN ABSOLUTE CORDON

The factual evidence

Silver’s Log records his decision as follows:

“Location Oxford Circus. … Time 2 pm. Nature: cordons to be implemented to detain and prevent movement of demonstrators. Course of Action: cordons implemented by Bx 8 at Oxford Circus. Rationale: very large group of demonstrators engaged in unlawful procession at Regent Street -> Oxford Circus. Demonstrators in the roadway held at Oxford Circus by cordons implemented around them based on grounds that I had grounds [sic] to believe the public would be subjected to violence and there would be widespread criminality plus damage. Supplied by intelligence pre-event and during morning behaviour of protestors thus far, previous behaviour and criminality of protestors at similar events (J18, N 30 May Day 20000. The obvious fear of the public. Containment to be under regular review - officers to monitor crowd distress etc. When containment completed those contained to be informed of reasons. This deployment in line with tactical plan (outlined at meeting 26/4).”

Mr French accepted in cross-examination that it was likely that if a large group of demonstrators appeared in Oxford Circus, then they would be contained. He did not accept that this was inevitable, or that it was decided in advance. If there was anticipated a breach of the peace, then there would be a containment. He said that the intelligence had suggested that there would be a slow gathering during the afternoon, and he was caught by surprise by the procession. To bring it to a stop before Oxford Circus would have required resources, and if it were to be done it would have had to have been done quickly. If the police did not take control of the crowd when it arrived, the opportunity to do so might not recur.

The police were all surprised by the procession. In my judgment, if they had expected it, they would have deployed their resources differently, so that they could provide some control as it went up Regent Street. They would have taken steps to separate the crowd from the moving vehicles, for the safety of everyone. In the event, as Mr French said, the procession stopped at Oxford Circus of the crowd’s own accord, and the police did not have to stop it. I also accept that the containment of the crowd had not been decided in advance. If the crowd had built up gradually, as Mr French and his officers expected, the position might have been different.

In cross-examination Mr French made clear that the main reason for imposing the cordon was the behaviour of similar crowds on previous occasions, followed by the intelligence. The behaviour of other crowds earlier on MD01 was only the third reason. The intelligence that particularly concerned him was that the estimate of 500-1000 individuals intent on violence under the guise of being protesters had remained the same up to the date of the event. What the crowd had done before arriving at Oxford Circus, while it was not lawful (the procession was in breach of s.11 of the Act, and obstructed the highway), would not have led him to impose a cordon without more.

Other relevant extracts from the Decision Logs include the following. Chief Superintendent Allen Webb was Bronze 8. He records that his initial deployment of his Reserves in North, South, West, East around Sector 12 was at about 1pm following a meeting with Mr French at just after 12 noon. His log includes the following (a Police Support Unit or PSU is also known as a Serial and is a unit comprising one inspector, three sergeants, twenty one constables, three carriers and three drivers):

“…Time 13.40. Nature: deployment (agreed Bronze 8/8 (1)) and Silver. Course of Action: deploy 5 PSUs (under command Chief Inspector Reed) to Cockspur Street…. Rationale: responding to request from Sector 12 based on crowd movement.

… Time: 13.50. Nature: deployments. Course of Action: deployments responding to crowd movements… Rationale: forward deployments of Reserves in anticipation of crowd movement/march. Ch Insp Read at rear of march…. Anticipation of demonstration at Oxford Circus.”

After that he was unable to complete his log in person because of the rain. Instead decisions were logged for him at the time in a notebook by Ch Insp Chalk. This was typed up later. It includes the following:

“14.00

Bronze 12 – Let crowd into Oxford Circus and put cordon (S) around. (decision by Ch Supt Mackie)….”

Commander Christopher Allison is now Borough Commander for the City of Westminster. On May Day 2001, when as a Chief Superintendent his role was Bronze 8 (1), there had been an apportionment of responsibilities between him and Ch Supt Webb. Commander Allison was to be responsible for managing the crowd within any containment. Ch Supt Webb would be responsible for creating and managing any dispersal route. It is unnecessary to cite at length from his Decision Log. The following points are relevant.

He noted a large crowd building up in Haymarket and moving North to Regent Street, which he believed to be heading towards Oxford Circus. He started thinking ahead in case a containment was called for and ordered certain deployment. Shortly after 2pm he heard of the decision to deploy which was passed to him through Mr Webb who had heard it from Mr Mackie. Ch Supt Allison deployed the units to put the cordons in place. In various entries timed between 14.30 and 15.40 he records decisions as follows:

“1.

Cordons to be kept in place and crowd contained…

2.

Those not involved in demonstration to be released by officers on cordons

3.

Those in crowd to be told being detained for B[reach] o[f] P[eace] by officers on cordons”

In the section under the heading “Rationale” Ch Supt Allison recorded that:

“1.

All Ch Insps briefed to maintain secure cordons. Repeated pushes by crowd at cordons and missiles (cans/bottles) thrown. Most officers unprotected – progressively kit officers with Protection.

2.

All Ch Insps briefed to ensure officers allow those not involved in demonstration to leave the containment

3.

All Chief Inspectors briefed to ensure that officers on cordons were informing crowds that they were being detained to prevent B[reach] o[f] P[eace] making detention lawful.”.

Ch Supt Allison said that once the decision to put in a cordon was made, it took five to ten minutes to put in a loose cordon, and 20 to 25 minutes to put in a full cordon. This was because the Serials were not yet at their jump off points, that is, where they should be just before a deployment. Some were still making their way forward to the rendezvous point. Even when the cordons were fully in place, he still had concerns that they were not yet strong enough to resist a concerted push. He said it took a long time for the cordon to the North to be secure, in his view. He accepted Mr Starmer QC’s suggestion that at 2pm the crowd numbered over 1500.

It was his concern about the strength of the cordon that led Ch Supt Allison to delay the announcement to the crowd. He thought it would be folly to tell the crowd they were contained before he felt the cordons were strong enough. A premature announcement might have precipitated an attempt to break out. So there was an element of stealth in his tactic. He did not want to trigger the violence that might ensue if the crowd did break through. He was particularly cautious, he said, because he could count on one hand events which had had such a severe threat assessment for the numbers of people willing to be involved in violence. He said that if the crowd had been a normal compliant one, then he would have dealt with them in a completely different way. But they were not.

Ch Supt Allison said it would not have been possible to put a cordon in before Oxford Circus, because time would be needed to block the side streets, as well as Regent St itself. He said that if the police had insufficient resources (as was the case) the crowd would breach the cordon, and that acts as a trigger. A crowd that has breached a police cordon feels that it is out of police control, and in that situation that might have provoked a rampage down Oxford Street. Where the police try to stop a crowd once and fail, the crowd expects them to try again, and so would not stop. He said this view was based on his experience of this happening at N30, the ‘Kill the Bill’ demonstrations in 1994, and Liverpool dockers demonstrating in 1997.

Commander Allison was cross-examined as to his view of the crowd. He gave his answers illustrated from his experience at MD00. It was he who had been in charge of the police who cleared the demonstrators, by then very violent, up Whitehall into Trafalgar Square. He ran the full length of Whitehall in full protective gear and carrying shields to do this.

He categorises demonstrators in a violent crowd in three groups. The first group is those who are being violent. In addition to those who were being violent, he says there are people lending support to them. Those lending support make it far more difficult to restore order. It encourages those who attack the police, and they get in the way of the clearance operation. Sometimes such clearances involve quite strong tactics which risk injury. When there is a disorderly crowd, and police move forward with shields, they are hoping that the crowd will back off. If the crowd do not, then the police may have to use batons to protect themselves. If amongst the demonstrators there are those who just lend support, it creates a challenge for the police. For example, some people appearing to be photographers may in fact be demonstrators pretending to be photographers. It is a notable feature of the DVD images that the crowd contains many people with expensive looking photographic equipment pointed at the person making the video.

The third group is those who come intent on being completely peaceful and get wrapped up in the demonstration. But even some of these can become violent. This can happen when the police have to use strong tactics. Otherwise peaceful people can become annoyed when they see this, perhaps because they are passionate about the cause in support of which they are demonstrating.

In his witness statement, Ch Supt Allison states that he is in no doubt that if such a containment had not been put in place on MD01, there would have been widespread damage to property and injuries to members of the public along the length of Oxford Street and in its surrounding streets as the crowd became more and more disorderly and split into smaller and smaller groups. Referring to his experience of disorders, a few of which I mention in this judgment, he told me that he considers that containment prior to widespread disorder has the effect of reducing the potential for injury both among demonstrators and among police officers. On the occasions when he has used shield and baton charges towards crowds, he has been met with extreme violence. Crowds have been able to arm themselves, and are not afraid to stand and fight with police officers. There is also risk of injury to mounted officers, when they are used.

The video images I have seen of events in Holles Street are entirely consistent with this assessment. I have also seen a clip of a female mounted officer being pulled off her horse by a crowd at another occasion.

Mr Mackie’s Log was kept for him in a notebook. There is nothing on the decision to impose the absolute cordon, which he says was made by Silver. This was challenged by Mr Starmer QC who suggested to him, to Mr French, and to Mr Allison that the decision had really been Mr Mackie’s. The cross-examination was partly based on the radio logs. But the timings on these are not precise, and there were also conversations between the officers by phones, including mobile phones, which are not recorded.

All three rejected this suggestion, although Mr Mackie did say that he asked Silver to put it in place, and he did not expect Silver to say no. To buy time he and Mr Allison did deploy officers to cordons before the decision of Silver, but they did not reach their stations instantaneously. I accept Mr French’s, Mr Mackie’s and Mr Allison’s evidence.

Mr Mackie was near Piccadilly when the crowd began to move and was at the head of the procession as it travelled North along Regent Street toward Oxford Circus. The movement of the crowd was not expected by him. He had not expected demonstrators in Oxford Circus before 4pm. He considered placing a cordon in Regent St before Oxford Circus, because he was not sure Ch Supt Webb and Ch Supt Allison would arrive in time to assist policing at Oxford Circus. But he spoke to Mr Allison who assured him that he would arrive in time. His decision is recorded as “Allow them to take O/Circus”. In cross-examination he said that he could not have stopped the procession. He only thought of the idea momentarily. He did not have the resources to stop the crowd himself and he did not know where the reserves were. The crowd were walking at a considerable pace, and appeared to him to have an intent. By the look of some of them, he thought that they would have opposed any attempt by him with force. He could not safely have achieved a cordon, he said.

The expert evidence

Mr Gilbertson concluded that an absolute cordon can be an appropriate tactic to maintain public order, but that the decision to implement the containment at 2pm was not proportionate because it was not supported by evidence of disorder at that time and at that place. However, the other tactical options which he considers would have been more appropriate were not ones that were still available at 2pm. He does not suggest that there was an alternative at 2pm. Rather, his opinion is that that situation should not have arisen. Instead he says that there should have been early arrest of identified suspects, together with cordoning of the area before the crowd arrived, so as to deny them access to the areas in which a breach of peace was expected. He drew attention to the powers under the 1986 Act, which he says should have been exercised in advance of 2pm.

Accordingly, Mr Starmer QC did not criticise the decision that was made at 2pm on the basis that some other decision ought to have been made at that time. The point made is that decisions which should have been made earlier were not made. On this point he criticises what he submits is the ‘lack of an audit trail’ showing the consideration of alternative plans being considered during the planning and training for MD01 which took place during April and earlier.

It is, of course, the case, that a defendant must show that an imprisonment complained of was proportionate, assuming it was otherwise lawful. On the other hand, the point made for the Commissioner is that the lack of co-operation by the demonstrators before and during the event, and the apparent intention of the organisers to confuse the police, made it essential that there be no fixed plan, but instead there be flexibility. They did not know that they had to plan for what actually occurred at the time it occurred, and they did have to keep their resources available for other events, some of which occurred, and some of which did not. So I turn to consider what the alternatives were that Mr Gilbertson considered.

First it is important to note that Mr Gilbertson did not say that there was any particular alternative measure which should clearly have been taken on the day. In his oral evidence in chief he described his proposed option (a), which was early intervention to arrest identified suspects. He said that was a counsel of perfection. His option (b) was denial of key location to protesters, that is cordoning the crowd out, not cordoning it in. He said this was an option worth considering, and that he had seen no documents showing that it was considered. But in fact the police did adopt option (b), as well as containment within Oxford Circus. They did try to prevent most of the crowd outside Oxford Circus from reaching Oxford Circus. The effort that this required, as described below, suggests that if that had been their sole tactic, they might have kept the crowd out of Oxford Circus, but they would not have kept it out of Oxford Street, which was also an objective.

As to how denial of access might have been achieved, Mr Gilbertson’s only substantive suggestion was that the procession which came up lower Regent Street into Piccadilly should have been diverted at that point, by police directing the crowd West along Piccadilly, round Hyde Park Corner and into Hyde Park. This might have been achieved by positioning police vehicles and police officers in cordons across the North exit from Piccadilly Circus into Regent Street, and, it follows, across all the exits North out of Piccadilly up to and including Park Lane.

Mr Gilbertson did not say that this ought in fact to be done. The objections to such a contention are in my judgment overwhelming. The resources to achieve such a diversion of the crowd would have had to be in place before the crowd arrived at Piccadilly Circus. Yet there was nothing which could have made Silver confident that such a major deployment of his resources along Piccadilly would in fact be required. And in addition to denying the crowd a route North to Oxford Street, Silver would have had to consider what the crowd would do if frustrated in their desire to reach Oxford Circus, which was the advertised meeting point for the end of the day. There is no reason to believe that they would have consented to going to Hyde Park. Silver would have had to provide against them choosing an alternative destination, to the South towards Parliament Square and Buckingham Palace. Given what had happened near Parliament Square in MD00, he was fully entitled to take the view, which his briefing paper shows that he did. He said “‘We will die in the ditch’ to protect certain areas, for example the Palace of Westminster, Downing Street, Buckingham Palace…”

Mr Speed pointed out other difficulties. The traffic along Piccadilly has only a bus lane heading West. All the other lanes head East into Piccadilly Circus. Even a willing procession would have had difficulty in turning West at that point. There was a risk of a confrontation if the crowd were not consenting, and forces would have taken time to assemble to deal with that. The commanders thought it was part of the tactics of the demonstrators to defray police resources to a number of locations. So at that early stage the Bronze commanders would be resisting committing large numbers of resources. Mr Speed said you quickly run out of resources if you do that.

Mr Gilbertson was asked about what Mr Mackie had said at the time, namely that he felt unable to guarantee just one cordon along Regent Street North. Mr Gilbertson knows Mr Mackie well. He said he trusted Mr Mackie’s judgement. He was surprised that Mr Mackie should have taken the view that he did, given the total number of police deployed that day. But Mr Gilbertson said that if Mr Mackie said that, he Mr Gilbertson would accept it. He then said that he knew all the officers, that he has the utmost regard for all of them. There followed this exchange (as recorded in the Claimants’ counsel’s note):

THE PLAN FOR RELEASE

The two senses of release, collective and individual, have each been the focus of debate. In their statements of case and witness statements each of the Claimants focuses on their personal circumstances and requests for release. They complain of the failure to distinguish peaceful members of the crowd from violent ones. But when Mr Gilbertson was instructed his terms of reference did not direct his attention to individual release, and his conclusions contain little reference to it. The main thrust of his report is directed to whether imposing an absolute cordon was justified at all, rather than alternative tactics, namely arrest of identified suspects and denial of access to Oxford Circus to the crowd. His report contains some reference to collective release (which he and others also refer to as dispersal). He also notes that arrangements should be made for “instructing officers on one or more sides to ‘filter out’ those individuals who are not identified as troublemakers”. His conclusions on this topic include:

Mr Speed’s terms of reference mirrored Mr Gilbertson’s. So while his report does contain a few references to members of the crowd who were peaceful and those who might have been caught up in it accidentally, his attention is not directed to these, and he expresses no conclusion upon them. The focus of the report is on the decision to impose the absolute cordon at all, and to use s.60 powers in conjunction with it.

However, when the experts met a week before the trial started, to establish points of agreement, they noted two points of relevance at this stage. One was the question whether “Demonstrators were treated as a homogeneous group irrespective of whether they were peacefully protesting or acting in a criminal and/or violent manner”. They agreed this as a fact, but differed as to whether it was proper. The difference appears to me to be mainly as to the law in relation to those voluntarily present with members of a larger group. The second of these points of agreement related to Mr Gilbertson’s conclusion (i). It was agreed that there was “No documented release policy”. But Mr Speed remarked that in his view officers were directed, and releases did take place.

The witness statements for the Defence do include some references to individual releases. But in the preparation of bundles for the trial this was not thought to be a prominent issue. Although documents had been disclosed on the topic, few were included in the trial bundles.

The issue of individual release was mentioned in Mr Starmer QC’s opening speech, but barely distinguished from collective release. Of the seven reasons given as to why the containment was unreasonable, disproportionate and unlawful, the sixth is:

As the trial progressed the importance attached to the issue of individual release became apparent, and the documents previously disclosed, but not analysed, were revisited by the defence team. In his closing submissions Mr Beggs introduced for the first time a schedule of extracts from disclosed documents. He submitted that these showed that about 392 individuals had been released. Mr Starmer QC did not object to the admission of the documents as evidence, just as most of the police witness statements were admitted without cross-examination. It is common ground that the figures are not entirely reliable. There is no way of checking whether there was double counting. Equally, since part of the schedule is based on the video evidence, there is no way of knowing whether all the individual releases were caught on video.

There was a tactical planning meeting on 26 April 2001. It was attended by Gold, Silver, and a number of Bronzes, including Ch Supts Allison, Mackie and Webb. There is a record of tactical decisions agreed.

The first was that the police would prefer violent protesters and those intent on criminality to be together in one group rather than spread in several groups throughout the area. Mr Gilbertson said this was eminently sensible. But he emphasised that other protesters should not be treated the same way. Those who might be violent should be identified.

Other decisions included the dispersal routes in the event of a containment in any one or more of a number of places. From Oxford Circus the dispersal route was to be North up Langham Place and Portland Place, but not until steps had been taken to protect the route. Dispersal routes were also agreed for any containment that might be implemented at either end of Oxford Circus, St Giles’s Circus, and Marble Arch. Mr Gilbertson was unaware of the dispersal plans for St Giles’s Circus, and Marble Arch, since the version of the document disclosed when he wrote his report had been redacted to exclude these locations. An unredacted version was not made available until 26 January. The preferred routes were all to the North. There was an alternative plan in the event that a route could not be protected before dispersal commenced, due to insufficient resources or conflicting demands. The alternative tactic was to be a double ring of police officers around protesters as they were dispersed. If any gathering wanted to process along Oxford Street, that would not be facilitated. Protesters would be held and arrests made, if appropriate, with dispersal being Northwards.

It was always likely that if a large group appeared at Oxford Circus they would be contained. I find this was not inevitable, and it would depend on the circumstances. The cyclists who sat down at Oxford Circus at about 12.40 were not contained.

Mr Gilbertson had no criticism to make of the decisions that were made as to the dispersal route from Oxford Circus. He said it was standard practice to route away from a main shopping area, and along a wide thoroughfare.

Apart from the record of this meeting there is no record of plans for release or dispersal. Although various other possible locations for a containment were discussed, there was no tactical decision as to what was to happen if the group appeared at Oxford Circus at 2pm, but other groups were still due to arrive say at 4pm. Nor is there any record that at that meeting it was contemplated that release might be delayed for any reason other than to protect the route.

Mr Starmer QC naturally put some stress on the words used by Mr French at his briefing:

Mr French accepted that the reference to boring demonstrators to death was not usually included in such briefings, and that it could have been better worded. But he did not accept that it meant that the tactic was to hold people as long as possible. He said they would be held until the threatened breach of the peace was no longer there.

On a fair reading of the words used, the contrast is between holding disorderly groups rather than have running skirmishes. There is no suggestion that they be held longer than necessary. I find that that was not the plan.

There was also some consideration given to release in the training for TSG officers on 23 and 30 April. One paper headed “Information to PSUs” reads as follows:

The criticism made of this paper is that it does not say who are the unwanted people to be released. Mr Caldwell, who had responsibility for training, stressed the reference to cordons. He said, correctly in my judgment, that the police have a duty of care in such situations, and people must only be released into a safe environment. He said the word ‘unwanted’ was unfortunate, but it meant those not involved in any form of disorder, nor likely to have been, nor likely to cause or threaten violence.

The consequence of the way in which the individual release policy point was introduced into the case has been that neither Mr Gilbertson nor any one else ever formulated the documented release policy that Mr Starmer QC contends should have been communicated to the officers on the cordon. In cross-examination Commander Messinger accepted that a release plan would have been helpful, and he said it could probably be reduced to six to ten bullet points, but he did not think it was necessary, and he was not asked to draft it.

However, Mr Starmer QC can point to the drafting of para 75 of the Defence which identifies “those persons caught up in the containment who posed no threat to public order (ie non-protesters and protesters with wholly peaceable motives)…”

Mr Starmer QC relies on what Commander Messinger agreed to in cross-examination. For this I have my own handwritten note, and the notes made on computer by junior counsel on each side, copies of which have helpfully been provided to me. The substance of the answers is the same in all of these. But Mr Messinger’s answers to questions were phrased differently on different occasions. Two passages relied on by the Claimants (as in the Claimants’ side’s note) are:

But there are difficulties with this evidence. First, it is not always clear precisely in which context the answers are given. Where the police have no opportunity to plan for an event, as was the case here, it hard for them to plan a release policy. A release policy suitable for people creating disorder in groups of up to 50 or 60 (which is one of the scenarios for which training was given in April 2001 in preparation for MD01) may not need to be documented in detail. Disorder of that kind is a problem with which police officers all over the country have to deal from time to time. And the alternatives to individual release were not indefinite detention, but collective release or arrest. The sooner collective release is expected to take place, the less urgent is an individual release. It is to be noted that in this case Silver gave the order to commence controlled release on more than one occasion during the afternoon, only to find that he could not carry that through. This appears from his log, which is cited below. Commander Messinger said that there should be an organised dispersal plan, preferably commanded by one individual, but how it should be operated and the priorities for release, would be matters to be discussed on the day between Silver and whoever he appointed.

Commander Messinger, Mr French, Commander Allison and Ch Supt Webb all stressed the difficulty of defining how people were to be selected for release individually. It would be wrong to use stereotypes, such as dress or appearance. Sometimes people should be released, even if they had been disorderly. No examples were given, but an obvious one would be if they were in physical distress. Ch Supt Webb contrasted the crowd with a football crowd, or say a Kurdish protest. He said that with those crowds it was generally clear who was who. But in the crowd on MD01, the protest covered such a wide spectrum that it was impossible to categorise people.

Mr Speed, Mr French and Commander Allison thought it would be impractical to lay down criteria in advance. Commander Allison said that he did not himself try to differentiate between those protesters who would be violent, or provoke violence, and those who would not. He said he could not do that. He said there are not separate categories within a crowd. An individual may be peaceful at one time, but threaten or provoke violence at another. Others will be peaceful themselves but encourage violence when committed by others. I have referred to his personal experience of this from previous demonstrations. However, he agreed that individuals should be released through the cordons, and it was right that the police on the cordons should try to distinguish who they might release in that way.

Mr Allison gave specific reasons why he felt unable to distinguish members of the crowd for individual release on the basis that they posed no threat of violence. He said they had endeavoured to release those who were definitely not protesters, such as shoppers and tourists. He referred again to the Special Branch intelligence assessment which was one of the worst he had seen in London. He said that the pre-event publicity had included the Mayor of London, considered as a champion of protest, advising people not to come. So he thought the crowd at Oxford Circus was likely to contain a significant number of people who would either commit violence, or cheer it on. To be able to distinguish different categories of protesters in what he called ‘fast time’ with all the noise was not practical. What he wanted to do was to follow the plan. That had always been to release the group as a whole as soon they possibly could.

In an environment completely different from that prevailing on MD01, the position would have been quite different, he said. The environment normally is completely different, he said. It is very rare for there to be no organisers, and no dialogue in advance. Where there is co-operation with the organisers, then in addition to the police, there may be stewards who can assist in the control of the crowd, and, if necessary, in any controlled dispersal. Stewards can also assist the police by identifying who is likely to be violent and who is not.

Mr Speed said that police on the cordons ought to engage with the people inside. He also said that if there were individuals who ought to be released, the circumstances might be such that the cordon ought nevertheless not be broken. Mr Speed pointed out factors which an officer might have had in mind. When the cordon was imposed at 2pm, it was only across the roads, where the protesters were. The roads are separated from the pavements by metal and stone barriers to stop pedestrians crossing the roads at that point. Those on the pavements were free to leave, and it might have seemed reasonable to suppose that non-protesters would have left, given the warnings of violence prior to the event. He observed that a protester with a megaphone who said she wanted to pick up her baby may be telling the truth, but may want to get to the other side of the cordon for other reasons. The difficulties that might arise for an officer faced with a person who asked to be released through the cordon can be readily understood.

It must be remembered that police constables commonly make decisions whether to stop or arrest a person either alone or without a senior officer present. The relevant criteria are part of their most basic knowledge. In circumstances such as those on MD01, their powers as individuals were limited by the fact that they were on cordons with senior officers present. But they nevertheless all retained some discretion.

As to how individual releases were actually allowed, Mr Starmer QC’s written closing speech collects together a number of extracts from written witness statements of police officers which are expressed in terms of releasing people who were not protesters or demonstrators. In other words, they do not distinguish peaceful protesters from violent ones. In the case of most of the witness statements it is clear that that is how the distinction is made, although there is also reference to discretion.

I also have in mind the evidence of the seven witnesses called for the Claimants (in addition to themselves and Mr Mulholland, who is Ms Austin’s partner). I do not doubt that the evidence they gave, of asking to be released, and not being permitted to go, is substantially accurate. In some cases they describe the officers whom they spoke to as pleasant and giving optimistic assurances about when releases would take place. In other cases the witnesses complain that the officers either did not respond at all, or responded in a way that was unhelpful, giving no reasons or explanation. Some officers said that they did not know when releases would be allowed or that they were following orders. Clearly there was a difficulty when officers were in protective clothing with helmets, which made communication difficult in practice. It is impossible to test any of the Claimants’ evidence on this point, since none of the witnesses whom they called to give evidence give any precise detail of the time and place at which they requested to be released, or of the identities of the officers who refused. I do not know how many of the remainder of the 150 people who have given notice of claims are in a position to give evidence of having requested release.

It is difficult to draw any conclusions from this evidence taken at its highest. The available evidence is from ten members of a crowd estimated at some 1000 to 1500 at 2.20pm, and up to about 3000 at the highest.

The table prepared by Mr Beggs of those actually released must also be taken into account. It suggests that of the 392 releases counted, 121 were from the North and 231 from the South, or the South West by Benetton. Only 40 were to the East or West. And most of the releases recorded are before 4pm, with only 12 between 4pm and 5pm, 89 between 5pm and 6pm, 59 between 6pm and 7pm, and 12 after 7pm.

If 392 is a figure which is approximately correct, or even if the true figure is only half, namely 200, that is a significant proportion of the crowd, whether it be a crowd of 1000 or of 3000. I find that a figure nearer 400 than 200 is probably correct. Mr Starmer QC submits that they are nearly all non-protesters. I cannot make that finding, or any finding on whether they were peaceable or not. Some are identified as bystanders caught up in the demonstration. But others are referred to as having medical problems, or conditions such as fainting, claustrophobia or pregnancy, as being elderly or young, or by date of birth or name. A number are described as bleeding or suffering from other injuries, or fearing for their safety. I think it unlikely that as many as 300 to 400 bystanders were caught within the cordon. It follows that I think it likely that a substantial number of those released were demonstrators, although I cannot say whether they had been peaceful or not.

DELAYS IN RELEASE

There is no doubt that collective release was planned for at 1425, five minutes from the moment the cordon was in place. As Mr Webb’s log records:

The reasons for the delay in the controlled release up Regent Street North are clearly set out in that contemporaneous log, the accuracy of which was not disputed. It reads vividly as it was written. GT means Special Operations Room or the Central Command and Control Suite at New Scotland Yard. PR means personal radio.

The decisions were also recorded by Silver:

At about 2.25 pm a hostile crowd of protestors were attempting to move North from Argyle Street into Oxford Street. This is not mentioned in Mr Webb’s log. A decision was taken to place a cordon at the junction of Argyle Street and Oxford Street in order to protect the police cordon in Oxford Circus and members of the public in the vicinity. Initially this cordon was a small number of officers (not shoulder to shoulder) who were in normal uniform rather than in full public order kit. This was a deliberate decision to try to prevent any escalation of hostility. The decision is recorded in the Log of Ch Ins Robinson.

The pressure on police lines to the North was not a response to any action by the police, other than the presence of the cordon itself. By 2.45 pm a substantial crowd had gathered immediately to the North of Oxford Circus, held (but not contained) at the junction of Regent Street with Great Castle Street. Those at the front of this crowd and the Oxford Circus crowd would have been able to see each other.

So, by 3 pm there was, in addition to the crowd in Oxford Circus:

At 3.08 pm a firework was let off somewhere in the vicinity of Oxford Circus. At about 3.10 pm there was a concerted attack by a small group in the crowd on the Nike Town shop at Oxford Circus. This required the deployment of further officers between the crowd and the shop to prevent the protestors removing the hoardings.

There followed sporadic, but persistent, missile throwing at the North cordon. By about 3.30 pm protestors at the North cordon had started breaking up paving slabs and throwing the debris at the police requiring the police to advance to clear the crowd past the area of broken paving. A white male with a Nike baseball cap threw a large piece of concrete at police, striking an officer. The male then replaced his Nike cap with a police beat duty helmet which had been stolen from elsewhere.

At 3.33 pm a protestor was dancing on the roof of a parked car in Great Castle Street, causing damage to its roof. In Great Castle Street another protestor was fighting with officers in the cordon at the junction. Missiles were being thrown. Further protestors attempted to reach the demonstration in Oxford Circus from the South via Princes Street into Regent Street. To prevent them doing so, a police cordon was put in place at the end of Princes Street at its junction with Regent Street. People in Princes Street were not detained as the opposite end (at Hanover Square) was open to allow people to leave if they wished. They did not disperse.

Mr Starmer QC suggested to Mr French that as time went by it became more and more unreasonable to hold the crowd. Mr French accepted only that it was unfortunate. The circumstances did not permit an earlier release, he said. He considered the area of Oxford Circus a dangerous place to be at that time. From 4pm he considered that his resources were fully stretched. So much so, he said, that he recalls being asked for further resources by certain Bronzes, and being unable to provide them. He said that to change the dispersal route before the crowd were in fact released would have been an unsound decision, although there might have come a time (in different circumstances) when a new dispersal route would have had to be provided for.

The decisions were also recorded by Ch Supt Allison. The effect of his log is as follows. Before 1540 he recorded:

“Course of Action: …4. Move crowd to centre of Oxford Circus and off footways…

Rationale: … 4. Crowds moved off footways at South side of junction to prevent damage to property (large plate glass windows) became very difficult, with crowd pushing at cordons. North side left on footway. Crowds outside containment also trying to join”

The decision to move the crowd off the footways was taken because of the danger presented by plate glass windows. The movement was done in a way which he described as slow and controlled. Even then he had concerns as to the ability of his cordons to withstand a sustained push. The movement was designed not to galvanise the crowd to attempt a break out. If the crowd had been asked to move by way of announcement he thought there was a greater likelihood of galvanising them.

At 15.40 Mr Allison recorded that he walked round all the containment cordons and, amongst other matters, his purpose was to ensure that Chief Inspectors and their officers allowed those not part of the demonstration to leave the containment. At 16.00 he noted amongst other things that the crowd was still violent and disorderly and it was clear to him that Breach of the Peace and damage would result if they were released. Between 16.12 and 16.25 he made use of the helicopter to ensure that sufficient space remained in the crowd to ensure there was no crushing. He also checked this on CCTV. At 16.30 he recorded that the crowd was still violent and that he feared a Breach of the Peace if they were released. In cross-examination Mr Allison also explained that he was concerned about a risk of trampling, if release was not at a controlled speed.

Mr Allison nevertheless accepted in cross-examination that the announcement to the crowd that they were being detained, and why, could have been made earlier, perhaps at 3.15 or 3.30pm. He said there was no deliberate decision not to make the announcement, and another time he would want someone to remind him. He takes responsibility for the timing of the announcement.

At 17.30 Mr Allison noted that he spoke to all cordon Chief Inspectors to ensure that officers were releasing those not involved in the demonstration. He noted that all Chief Inspectors stated that this was being done when people approached the officers on the cordons and was being documented (although in the event there is very little documentation). He recorded that just after 6 pm demonstrators started to attack Niketown and officers were deployed to protect the shop and move the crowd off the footway. At 18.17 and 18.25 he recorded missiles being thrown at the North East and the North of the cordon. He recorded his concern over the crowd’s activity should they be released. Between 18.35 and 18.50 he made arrangements for a controlled dispersal to the North in conjunction with Section 60 searches. He noted that one purpose was to ensure that those against whom there was evidence of offences were arrested. Another reason for releasing the crowd in a controlled way was to ensure that the risk of breach of the peace and damage was minimised as they left the area in a Northerly direction.

The release was stopped at 18.15. There was violence at other cordon positions to the East. The release was stopped to allow those already released to disperse and so that they would not reform into a crowd and commit acts of violence. The release was restarted at 19.32 in small groups to try to prevent a large crowd reforming as had occurred before. He refused permission to a group of officers to enter into the crowd to make an arrest because he considered it might precipitate violence. Since suspects were leaving under control in the slow dispersal they would be arrested as they left.

At 19.40 disorder broke out in Market Place. Dispersal from Oxford Circus was stopped as the violence in Great Portland Street might mean that those released North would join that crowd and form a larger crowd and start further violence. The release was started again under control at about 8 pm but speeded up at the request of Silver with less people being subject to Section 60 searches. At 20.40 the crowd started to put significant pressure on the North cordon. The vehicles were brought forward to reinforce the cordon and provide a visible presence and a block in the road.

At 20.50 there was a concerted push by demonstrators on the North cordon in an effort to escape by breaking the police line. There were reports of crush injuries to officers and demonstrators on the railings. The cordons were held, he said, as a mass release would result in disorder. But the controlled release was speeded up to reduce the danger to officers and demonstrators from crushing. At 20.57 he noted that the main suspects were still to be arrested as they left the containment. At 21.12 the release was slowed to ensure that those already released did disperse and so prevent a large crowd reforming. Seven main targets were arrested. Between 21.25 and 21.36 the crowd to the South of the containment in Regent Street was brought into the containment to be released through the North cordon point. At 21.55 the Section 60 searches were complete.

There was no challenge to the facts recorded in these logs. The point put to Ch Supt Webb was that even if things had gone to plan, the dispersal would have been too slow ever to be completed within a reasonable time, and should not have been maintained on that account.

He said that at 1445 he expected the controlled release would have been started within about an hour, that is 1545. The interests of those contained were not the only reason for his being concerned about the delay. As time passes the police on the cordon suffer strain. They come under verbal and physical pressure. It was a tactic he said he would rather not use. From 2pm onwards his assessment was that the mood of the crowd in Oxford Circus was that they were intent on disorder. Sufficient police were needed before they were released. When the cordon was put in place he did not realise that there would be other crowds coming at 4pm. He thought that the crowd they had contained was the 4pm crowd. The situation that resulted from the presence in the area of other groups he said was very dangerous for the police. The cordon was between two groups of protesters. There was some discussion about moving the whole crowd up Regent Street with a police cordon around it, because there were insufficient officers to police the dispersal route. But that would have created further disorder. There was a risk of injury to those in the crowd, and in any case, there were insufficient police resources to try that tactic. So until the dispersal route could be policed they had to continue with the containment. The groups outside the cordon took up the resources needed to disperse those within in it.

Ch Supt Webb was asked whether with hindsight the cordon should not have been put round the crowd so early. He rejected that suggestion. He said it had to be put in when it was, and the fact that other groups arrived later exacerbated the problems.

A further difficulty Ch Sup Webb described was the behaviour of those who were released. While some of them left the scene, others stayed to watch, and they too had to be policed.

Commander Allison considered that a controlled release could not start so long as there were crowds to the North on the dispersal route. Bringing them into the containment did not cause delay. It was necessary to free the police resources engaged with the crowds to the North so that those officers could be deployed on the release. Any release would have to be controlled because otherwise there would be a risk of trampling.

Mr French too stressed that release could not commence until it would be into a safe environment. And if the crowd were released North before the route was policed, that would defeat the purpose of the exercise. The purpose was to prevent those in the crowd who were intent on disorder from causing it. A difficulty with MD01 was that the police had not contemplated having to hold the crowd so long. That had not happened before.

It would not be useful to prolong this judgment with a close examination of the details of the situation inside and outside Oxford Circus. There is little dispute about the following, which I find to have occurred, although the times are not precise in all cases.

At about 2.25pm, when the crowd of protesters were attempting to move North from Argyle Street into Oxford Street, two arrests were made by an officer on the cordon. Ch Supt Allison decided to try to move the crowds who remained on the pavements away from the buildings and into the road. This was successful on the South side, but not on the North side of Oxford Street. People in the crowd were seen urinating into water pistols.

The police at Oxford Circus allowed the protestors in Princes Street to join the crowd in Oxford Circus. Protestors were escorted up the west side of Regent Street in groups of about 50. Between about 3.30 pm and 4.30 pm about 200 were allowed to go to Oxford Circus in this way before the movement was reduced, primarily because of numbers in Oxford Circus. Mr Allison explained that these people were not herded by the police. They walked freely regarding Oxford Circus as their goal. This did not delay the controlled release, in his view, because that could not start in any event in view of the situation in the dispersal route to the North.

The crowd at Princes Street grew in number and was angry at the police for preventing them from moving into Oxford Circus. A water bomb thrown at the police appeared to contain urine. After 16.26 Mr Mackie held the crowd in Princes Street on being informed that it was too big to move into Oxford Circus. He did not wish to disperse it, thinking that would result in dangerous disorder.

At 3.52 pm in Market Place (to the east of Great Castle Street) police officers found themselves outnumbered and surrounded by a hostile crowd of about 300. Some were under attack from the crowd. The police attempted to withdraw and in doing so let the crowd surround some police vans. The crowd started to break into the vans (one of which still had a police driver sitting inside) and steal police equipment. When the police tried to regain ground, a smoke bomb was thrown.

At 4pm there was the first announcement to the crowd at Oxford Circus by the public address system. Between 4.12 pm and 4.25 pm Ch Supt Allison directed that the crowd contained at the junction with Great Castle Street be brought into the Oxford Circus containment. This was to reduce the number of seats of disorder and thus better utilise the police resources, and to clear a Northerly route for the dispersal. The police helicopter confirmed that there was space within Oxford Circus to safely accommodate the crowd.

At about 4.15 pm the “Samba Band” (consisting of an informal group of protestors with drums, whistles etc, playing percussive beats) arrived at the junction of Great Portland Street and Mortimer Street. It rapidly started to attract protesters from surrounding streets. At about 4.25 pm the Samba Band and a crowd of approximately 400 people were in Margaret Street, crossing Regent Street nearing Cavendish Square, not far from Oxford Circus. The crowd, including protestors with red flags and some who were masked, was noisy and unruly and some missiles (such as beer cans and wooden poles) were thrown at the police. The police made deployments with a view to preventing the band entering Oxford Street through Holles Street. Just after 4.40 pm the Samba Band and supporting crowd (now about 500) turned left from Cavendish Square into Holles Street, overwhelming a police cordon at the Northern end of Holles Street.

The decision was therefore taken to contain the Samba Band group of protestors in Holles Street. Police cordons were placed at the southern end of Holles Street at the junction with Oxford Street, and the Northern end of Holles Street at the Cavendish Square end. Rapid deployments were made to the south end of Holles Street in order to reinforce the cordon. The crowd were hostile to the police and a group of officers was isolated within the crowd. At the south end of Holles Street the crowd violently resisted the efforts of the police to enforce the cordon, and attempted to break through it. A brass fire hydrant cap weighing 1.7kgs was thrown and injured PC Royer Collard in the face, fortunately not seriously. Some of the crowd were chanting “PC Blakelock, chop, chop, chop” (referring to the police officer who had been murdered with a knife when surrounded by a crowd).

Mounted officers assisted and the police eventually managed to establish the cordon at the south end of Holles Street. Cordons were also put in at the North end of Holles Street. Once the Holles Street containment had been achieved, the crowd were informed by a mobile public address system that they were being detained to prevent a breach of the peace, and that they could be released when passive and when the threat of a breach of the peace had gone. The message was also reinforced via the public address system on the police helicopter. Members of the crowd threw bottles in response.

A group of about 25 Wombles arrived on the east side of Oxford Circus. They were wearing white suits, white dust masks over their faces, and carrying in front of them at body level a blue sheet supported by poles. They proceed to skirt around Oxford Circus to the North before heading back into Oxford Street on the west side, picking up protestors as they went.

At 4.52 pm violence occurred at the junction of Great Portland Street and Oxford Street. Missiles were being thrown at police officers who were not wearing protective equipment. There was a large hostile crowd in the road and a small group of protestors on the balcony of the former C&A building that was also hostile. It was necessary to reinforce the police cordon at the Great Portland Street junction with officers in full protective equipment, and to allow the unprotected officers to withdraw in order to put on protective equipment due to the risk of injury.

At 5pm Supt Algar asked for more units to come and assist him at the junction of Holles Street and Oxford Street. He was told by GT that there were no spare units and no reserves, and attempts were being made to regroup the reserves. Ch Supt Mackie warned Ch Supt Allison that he had to be prepared for the group in Holles Street to break out through the cordon into Oxford Street and to come up against the cordons on the West side of Oxford Circus.

At 5.08 pm there was a further outbreak of missile throwing from within Oxford Circus East into Oxford Street. Units in this direction were required to put on protective NATO helmets in response to this violence.

Between 5.15 pm and 6.30 pm the crowd in Holles Street made continuous violent assaults on the police lines. It numbered 500-1000. Missiles continued to be thrown from the crowd and many protestors were wearing masks. Two windows of the John Lewis store were broken and protestors climbed onto the canopy of John Lewis (via a bus stop roof) and ripped off a security camera belonging to John Lewis. A bus stop was also deliberately damaged and the Halifax bank vandalised.

At 5.15 pm the Wombles, now with a following crowd numbering in the hundreds, turned left from Old Cavendish Street, east into Oxford Street. It had succeeded in almost outflanking the police and initially met only a single cordon of level III officers, a FIT and an Evidence Gathering Team (“EGT”), approximately 40 officers. There were protestors on both sides of this cordon. The Wombles, protected behind their blue tarpaulin, made a surge into police lines in an attempt to force the police line to retreat or break. Members of this crowd threw missiles at the police. The cordon line did break, with the level 3 officers retreating to the building line, although the FIT and EGT teams stood their ground. With the arrival of shield serials, at about 5.20 pm the police managed to regain control of the situation and prevent the Wombles plus crowd from advancing further towards Holles Street. The Wombles and their followers eventually gave up, turned and headed down Bond Street, with few police, proceeding in the direction of Regent Street, to the South and East of Oxford Circus, behind the police cordon line.

At 5.25 there were crowds of 200-300 and 300-400 at Marble Arch and at Bond Street, but no police. At 5.41 pm two youths attacked a parked police car in Gt Marlborough St with large pieces of wood, possibly legs cut off a table. Others in the crowd congratulated them.

At about 6.05 pm members of the crowd within Oxford Circus attacked Niketown, setting the wooden hoarding alight. The police re-entered Oxford Circus to extinguish the fire and keep the protestors away from Niketown. At 6.06 pm protestors in Oxford Circus reacted in a hostile way to uniformed officers entering the crowd. A particularly heavy volley of missile fire followed, which required officers on the East cordon to equip themselves with short shields in addition to their helmets. It was in the light of this that one of the decisions to release the crowd was reversed.

At 6.20 pm protestors in Oxford Street to the East (near the junction with Great Portland Street) removed the hoarding from outside a shop. A fire was started in the street. There was a further serious outbreak of missile throwing from the crowd near the Great Portland Street Junction. The crowd started to tear down hoarding protecting shop fronts and use the wood as weapons or missiles.

At 6.33 pm Supt Thomas made the decision to attempt to start a release from the Holles Street containment, using TSG officers to conduct s.60 searches and EGTs to record the releases. It was Supt Thomas’s intention to release the protestors North in a controlled manner, in small numbers, ensuring that a large group, including the Samba Band, did not reform.

At 6.35 pm Ch Supt Webb noted the crowd pushing and chanting “we want out” repeatedly. Silver re-authorised Ch Supt Webb to commence the slow release, with arrangements in place for a dispersal North. Ch Supt Allison requested a change in tannoy message to advise the crowd that they would be released shortly if they remained calm. At 6.40 pm Ch Supt Allison briefed the FITs about the release and s.60 searches, and Supt Grainger (Bronze 9/3) whose units were to police the Northerly dispersal route. At 6.47 pm the tannoy announcement was made.

At 6.50 pm the controlled release North started in Oxford Circus.

The dispersal from Holles Street commenced at 6.45 pm. At 6.50 pm it became necessary to try to move protestors in Cavendish Square Northwards up towards Harley Street as they were throwing coins and other missiles, climbing trees and statues, and hanging banners from trees. The area was also cleared for the sake of the safety of those officers who had to have their backs to Cavendish Square in order to deal with the crowd in Holles Street.

Many of those released from the Holles Street and Oxford Circus containments refused to disperse. Between 7.05 pm and 7.20 pm a large crowd gathered North of Oxford Street, causing Ch Supt Webb to suspend the release from Oxford Circus while this crowd was moved away. Mounted officers were deployed to encourage the crowd to move away North. Protestor numbers in Cavendish Square were also being increased by people leaving through the Holles Street cordon. At 7.30 pm it was again necessary to move protestors in Cavendish Square northwards from where they had gathered near the junction with Margaret Street, to the North side of the Square. Violence continued from protestors who were not contained. At 7.10 pm there was an episode of missile throwing from the crowd at the junction of Great Portland Street with Oxford Street. A further advance was ordered by Supt Robinson. At 7.25 pm a small number of mounted police officers were deployed behind the protestors so as to deter further missile throwing. This was a “passive” tactic and was not used in conjunction with any advances, but had the intended effect of preventing further missile throwing.

From about 7.30 pm a crowd formed in Market Square and began to swell. This crowd was extremely hostile to the police, attacking cordons with missiles such as masonry, large pieces of wood including a scaffolding board and metal barriers. Burning material was thrown at police officers. With the assistance of mounted officers, eventually the police were able to move this crowd away from Market Place and into Great Titchfield Street.

At 7.46 pm Supt Thomas was asked to assist but was unable to spare any resources as he had problems in Cavendish Square. Part of the crowd from Market Place and Great Titchfield Street headed east, down Eastcastle Street, where they dragged some road works barriers across the road to create a barricade at 7.53 pm before going on to cause serious disorder in Goodge Street and Tottenham Court Road. The part of the Crowd that remained in Great Titchfield Street (joined by others) also went on to commit acts further of serious violence and disorder.

At 7.32 pm the release from Oxford Circus was recommenced. Ch Supt Allison refused permission for a crowd entry to make an arrest for fear it might precipitate more violence. Just after 7.40 pm a large number of protestors (approximately 150-200) broke through police lines and out of the Holles Street cordon into Cavendish Square. The release of protestors in Holles Street was stopped until order was re-established. It was at this point that Silver directed that the Samba Band be not released as it would cause a regathering of protestors and further breach of the peace. After a re-briefing at 8 pm, release from Holles Street was recommenced.

At 7.52 pm the Oxford Circus release was again stopped as some of the crowd released were believed by the police to be fuelling crowds elsewhere, such as in Great Portland Street.

Just after 8 pm it was reported that Portland Place was clear of protestors and that release could be recommenced. At 8.15 pm Silver requested that the rate of dispersal be increased. By this stage sufficient resources had become available to police the dispersal, so the rate of release was increased.

At about 8.45 pm the remaining protestors in Oxford Circus made a push against the North Cordon, causing a crushing situation which compromised public safety. One female police officer was injured. Ch Supt Allison responded by temporarily increasing the rate of release.

By 9.30 pm all the protestors had been dispersed North from Holles Street. By 9.45 pm the dispersal from Oxford Circus was at an end.

There are numerous accounts by individual police officers of violent attacks upon them at various locations, some within, and others outside the containment at Oxford Circus. Objects were lit and thrown within the containment. Objects thrown at the police included bricks, cans, some full of beer, coins, wooden poles. Police helmets and other equipment were seized and stolen.

THE END OF THE DAY

During and after the release from Oxford Circus, there were numerous further outbreaks of violence and disorder. Some examples include the following.

At 8.07 pm, protestors were reported to be smashing a window of a shop in Great Titchfield Street and stealing bottles of drink. At 8.12 pm youths seen making petrol bombs in Foley Street. Youths throwing bottles at windows in Mortimer Street. At 8.31 pm a large group breaking into premises in Goodge Street. A petrol bomb was thrown in Goodge Street. Parked cars with their windows smashed in the streets near Goodge Street and Whitfield Street. Serious criminal damage and looting to shops occurred in Tottenham Court Road. A fairly serious outbreak of disorder occurred at the junction of Great Titchfield Street and Mortimer Street, including a car being overturned. A serious incident of arson of an occupied building. The disorderly behaviour of this crowd of approx 750-1,000 required Supt Plowright to put in the final containment followed by a controlled dispersal, in Great Titchfield Street, just North of Carburton Street. This containment lasted from about 9.30 pm until the last protestor had been dispersed at 11pm.

There were over 100 arrests, many for breach of the peace. About 40 of these led to prosecutions, but I have not been informed of the outcome of these. There are 145 Crime Reporting Information System (“CRIS”) Reports, a heavy concentration of the incidents being in the Oxford Circus area.

The impact of these events upon those who worked in the area can be seen from the evidence of a small number of such people who gave witness statements.

The store to the North west of Oxford Circus is Hennes and Mauritz. It has large plate glass windows and sells women’s clothes. The store was closed just before 2pm. The staff boarded over the main windows but not the doors. The store manager Mr Roberts stayed in the store with other members of staff. At about 4.30 pm they became aware that the boarding outside on the Regent Street side was being torn down and that a window on the same side was smashed.

Mr Brookes is a manager with Nike UK Ltd. His company decided to board up the premises on the North West side of Oxford Circus. There were strong commercial reasons for not doing this, but they were outweighed in the view of the management, by the risk of violent damage both to the store and staff if this were not done. They had monitored the pre 1^st May publicity on websites and elsewhere. They were aware that in any event their company is targeted by anti-capitalist protest groups. During the afternoon and evening Mr Brookes witnessed concerted attacks on the premises. The DVDs show a fire being lit and men attacking the boards with a hammer.

Ms Conner is a manager at John Lewis, Oxford Street. She received a message from Selfridges informing her that demonstrators were making their way towards John Lewis. She caused the store to be closed and the majority of the staff to be sent home. Extra security staff were deployed to the shop floor and doors. Two windows were damaged during the demonstration. Three men climbed onto the balcony in Holles Street and removed one of the store’s CCTV cameras which was thrown through a window. Damage cost in excess of £13,000 to repair. The store lost in trade about half a million pounds through having to close for safety reasons. Staff who remained in the store included Mr Garner. He described the violence, which he said was frightening and intimidating as the crowd were outside the store.

Mr Zachariou owns a clothes shop in Mortimer Street. He had no customers on that day and shut the shop at 5.30 pm. He remained on the premises. Whilst he was present a window was smashed and some goods were stolen. He estimates the damage at £2,150.

Ms Burke is a Loss Prevention Officer for Tesco. Tesco have a store in Goodge Street. Business was normal until just before 8 pm. She then looked out into the street and saw fires burning in the road and a large number of people coming towards her. She became very frightened by what she saw. She told customers to leave the store for their own protection and staff to sign off and also leave for their safety. The demonstrators then attacked the store which by this time was locked. A missile hit the front main glass window. Seven to eight windows and doors had been shattered but not smashed before the police arrived. She and another member of staff Mr Sanderson were very frightened by the attack. Mr Sanderson saw a man throwing a brick.

Mr Loureiro was the manager of Garfunkels restaurant in Tottenham Court Road. At about 9 pm, while he was working in the restaurant and there were present some 16 customers, some sitting by the windows he saw a group of seventy or eighty people coming from Goodge Street area. Many of the people were throwing missiles at various premises. He saw them smash the windows in the nearby Abbey National premises. He therefore turned out the lights in his restaurant, closed and locked the door. Missiles began to strike the glass. He managed to move the customers just before the windows were broken. Had he not done so it is likely that they would have been seriously injured. Some missiles were thrown with such force that they damaged the wall ten feet inside the premises.

THE EVIDENCE OF MS LOIS AUSTIN AND MR MULHOLLAND

Ms Austin was born in 1969 and so was in her early 30s at 1^st May 2001. She is a member of the Socialist Party and works as a receptionist for a publishing and printing company, which is affiliated to that Party. On 1^st May 2001 she had an 11 month old baby girl.

The contents of Ms Austin’s witness statement are not substantially in dispute so far as they go. The main issues upon which she was challenged were ones going to damages, that is to say the effect of the events she complains of upon her. The first part of the witness statement describes the events of that day. She says that at about midday she was in Central London to demonstrate peacefully against globalisation and capitalism and other issues of grave concern to her, such as exploitation of third world workers and student debt. She had arranged for her baby to be looked after at a reliable crèche. She was breast feeding the baby three times a day and the rest of the time the baby would eat solid food. That day Ms Austin had agreed with staff to collect her at 4.40pm when the baby was due for her next feed.

Ms Austin has been on many previous demonstrations and protests as part of the Socialist Party. She has attended the May Day demonstrations almost all of the twenty or so years since she became a teenager. One exception was May 2000. That was because the baby was then nearly due. There has been a subsequent interruption, also resulting from the birth of a baby. She says she has never seen major disorder. She distributed Socialist Party leaflets during the demonstration but did not distribute any of the material of the organisers of the May 2001 event, or any leaflets or money referring to Monopoly.

She has been a national organiser for Youth Against Racism in Europe and other demonstrations. She has always liaised with the police about agreed routes for demonstrations.

In 1996 at a demonstration in Earls Court she was assaulted by police officers and received injuries to her head, and also suffered psychiatric injury, as a result of the incident. She brought an action against the police officers in relation to this. She agreed in cross-examination that she had not been able to identify the police officers responsible for her injury in that case. The case settled.

On 1^st May 2001 she attended with her partner Niall Mulholland and a group of friends. They took part in a protest outside the offices of the World Bank. I have already recited her evidence about that demonstration, and how she went to Oxford Circus.

She states that the protestors arrived in Oxford Circus at 2pm from Regent Street. This is precisely the time recorded in the CCTV and other video cameras. She said that after fifteen minutes it was clear that the protestors could not leave. All of the exit roads from Oxford Circus were blocked by cordons of police. Behind the police lines there were vans with other police, who she said were wearing full riot gear, and some mounted on horses. She says that she was alarmed and intimidated by this police presence which, she says, was completely disproportionate to the size and behaviour of the crowd. At about 3pm she asked a police officer who appeared quite senior with grey hair why they had been detained and he told her to find out and let him know as well.

The statement goes on that, despite the overwhelming police presence, the crowd tried to keep in good spirits. The weather was cold and wet. She said that demonstrators who had instruments with them played them and the crowd sang and chanted and focussed on the point of the protest. She says there was no sign of aggression or violence from the protesters despite the miserable circumstances in which they were being kept. This part of her evidence is surprising given the evidence of aggression and violence from the protestors after they arrived in Oxford Circus as I have described above.

The statement continues that around 3.45 pm she needed to leave the demonstration to collect her daughter from the crèche. She went up to two police officers in Oxford Street West to explain her situation and to obtain permission to leave. Her partner came with her. She explained the situation that her 11 month old baby needed to be collected and she gave the name and address of the crèche. She offered a telephone number for verification that the place existed, so the police could check that her daughter was there and waiting to be collected. The officer said words to the effect “I don’t know how long we will hold you” and refused to permit her to leave when specifically requested. Asked by Mr Mulholland why the police were detaining them, the police officer gave no answer. She says an older officer with grey hair said “we’re just holding you to bore you into submission”. Miss Austin says she was appalled at the rude and aggressive attitude taken to her by the police. She did not record the number of the police officer concerned.

She says she returned with Mr Mulholland to the group of people they had been with and that she was extremely upset and worried about her daughter. Her daughter had never been left alone for more than a few hours before without one them being present. She adds here, in a sentence that was challenged in cross-examination, that she is quite nervous in crowd situations at times and the claustrophobic atmosphere in which she was being kept was making her even more alarmed.

The statement continues that around 4.30 pm she went back with Mr Mulholland and asked to speak to somebody in charge. They spoke to a Sergeant. Again she omitted to take the name or number of the Sergeant they spoke to. On this occasion she explains that omission by saying she was too upset and keen to explain the seriousness of the situation to think of doing so. After giving details similar to those given at her 3 pm request, she said the Sergeant did not consider the information but immediately responded: “You only have yourselves to blame for not being able to leave the demonstration. You should have thought of this and the consequences before coming on a demonstration”. She says she was appalled by this attitude. She says Mr Mulholland asked the Sergeant what specific legislation or order he was detaining them under, but that he would not answer.

The statement goes on to say that she was frantic about her daughter. Fortunately, with a mobile telephone lent by someone else she was able to contact a friend to ask the friend to collect her daughter. She was able to arrange this. She says she was extremely angry and remained disturbed that the police refused to follow up the information to check on the safety of the child. She said it was clear she was an anguished mother wanting to collect her child. She said that there was no evidence or indication that she had breached the peace or would breach the peace or would do any damage of any kind.

I accept that for the period between her request to leave to collect her baby, and the time when she succeeded in making alternative arrangements for the baby with her friend, she was an anguished mother, angry and distressed. Once she had made those alternatives, I find that she was no longer anguished. If she had been, then she would have rushed home as soon as she was released, which she did not do. Nevertheless, I accept that she remained angry.

After this she became aware of a tannoy announcement from the police saying “You are being detained to prevent a breach of the peace and damage to property” or words to that effect. (I interpose to say that her recollection of the words of the announcement is incomplete: the full message had two more sentences, as set out above: “You will be released in due course by a prescribed exit. Please be patient”). This was repeated, she says, throughout the period the crowd were unable to leave. The first announcement was sometime between 3 and 4 o’clock. No further explanation for the detention was given. She said that at Oxford Circus there was no aggression or violence and the announcement did not make any sense at all. Again this is a surprising part of the statement. In her witness statement she goes on to say that around 5 pm a police announcement told everyone to move into the centre of Oxford Circus. This, she said, immediately caused a dangerous crush situation and she was immediately reminded of Hillsborough and feared for her safety and for the safety of others present. She comments that the instruction was reckless and dangerous.

At around 6 or 7 pm there was another announcement over the tannoy from the police stating something to the effect of: “If you are patient you will be let out in due course”. No time was specified and she says the announcement was met with derision from the demonstrators, who had already been detained for over four hours and remained good natured and patient.

She became extremely concerned that there was no food or water provided or any access to toilet facilities or shelter. She had planned to be on the demonstration for two or three hours before collecting her baby, and, like other demonstrators present, was not adequately dressed for the cold wet weather and lacked provision. She was extremely cold and uncomfortable. She was concerned for others present who were vulnerable because of age or youth or medical problems. She says she did not see anybody successfully negotiate their release with the police. She described how people were forced into the humiliating position of having to urinate on the floor or in bottles in front of other protestors or under the scrutiny of the police, media and surveillance cameras.

In her witness statement she continues that as the evening grew colder and darker she became more apprehensive about what the police intended and was very worried about her daughter. She could not believe it was possible for over 2000 people to be held in a public place without any explanation, facilities, or indication of when they could leave. She managed to contact Tony Benn MP at the House of Commons. She informed him about the situation and asked him to contact the Home Office and the Commissioner of the Metropolitan Police. Somebody else in her group contacted a barrister who advised that the protestors were probably being held illegally. On this basis she went to make herself known to the police and asked to speak to a senior officer. She explained that she did not believe that they were being held legally and asked what legal basis he had for detaining her. She was told that they had breached the peace. She did not record the number or the name of the officer and offers no explanation for omitting to do so.

She states that after repeated questioning the senior officer told her that it was possible to leave Oxford Circus via a police controlled exit at one side of the crowd. She asked the same officer to announce over the police loudspeakers that people could leave in the way he had described but he declined to do so. She then mentions for the first time in her statement that she had a megaphone by means of which she made announcements to the crowd, relaying the little information she had, and asking everyone to organise themselves, so those who were most vulnerable could leave first.

In her witness statement she continues saying the police allowed only an extremely slow release of detainees, one at a time. They also searched and photographed many of the people leaving. She said this led to a bottleneck and a dangerous crushing situation, that people started panicking, and it is more luck than careful planning that resulted in serious injuries not being sustained by anybody. After many requests she said the police eventually opened up more exit routes. Officers took video pictures of those leaving, including herself. She says that the people were walked slowly by the exit and it appeared that individuals were picked out, those with baseball caps, and taken aside and questioned. She says she was finally released at about 9.30 pm and was not able to get back home until after midnight because of all the delays in transport. She found that her daughter was distressed.

The part of Ms Austin’s witness statement that follows this account of the day is a comment on the Defence served by the Commissioner in this action.

The Defence was amended on 15^th October 2004. At the time Ms Austin was commenting upon it, it included a Section II headed “The Background to 1^st May 2001”. This covered some eight pages, and is similar to the description of the previous events J18, N30 and MD00, which I have set out above. Ms Austin does not comment on any of this.

The Defence records the intelligence which had revealed that the ultimate focal point of the 1^st May 2001 protest was to be the so-called “Sale of the Century” in Oxford Street at 4 pm. It goes on to refer to literature, which it states was plainly intended by the organisers to encourage widespread looting and disorder. The Defence sets out the objectives of the police (which are quoted from the Operation Order, and as I have set out above) and their attempts to identify the organisers, which were unsuccessful.

The Defence states that a refusal of co-operation by the organisers prevented the police from better facilitating any lawful rights of protestors to protest, for example by closing off roads for protestors to march in, and managing traffic flow. It records that the policy known as “containment” is adopted to prevent a crowd causing serious violence and or disorder. It explains why, in the view of the police, the alternatives were impractical. If they allowed protestors to roam freely they thought violence and public disorder would ensue and that the police would not be able to restore order except by action, which would inevitably be more coercive and likely to cause injury and damage. Without co-operation from the organisers the police view was that relocating protestors to an area such as a park would be impractical. The Defence explains that the decision of Gold Commander for May 2001 was therefore to adopt the policy of containment but only if Silver Commander deemed it necessary to prevent serious violence and criminality, and for so long as was necessary to prevent or control serious violence and criminality.

The Defence records that the objectives had the explicit backing of the democratically elected Mayor of London, Ken Livingstone, who sought to dissuade people from attending the protest, and the support of other democratic bodies. This is substantially as I have recited the facts above.

There is no comment upon any of this in the witness statement of Ms Austin, nor any explanation as to why there is no comment. There is no indication as to whether any, and if so what, part of this was disputed by her. There is nowhere to be found any suggestion on her behalf of what she says the police could or should have done, other than what they did do. As I have noted, no Reply was served to the Defence.

The third section of the defence is headed “Events on 1^st May 2001 prior to the Containment”. It records how, as part of their obligations of democratic accountability, the police liaised carefully with representatives of the Police Complaints Authority (who attended the control centre at New Scotland Yard, known as “GT”) and the Metropolitan Police Authority (who were given a free hand to observe the police operation, both at command and front line level). The Defence describes how those attending a march and rally on that day, organised by the May Day Organising Committee and notified to the police, behaved in an orderly lawful peaceful manner as prearranged. This part of the Defence describes the protest outside the offices of the World Bank, the efforts the police made to accommodate it, and how the numbers grew up to about 1,000 protesters in Haymarket and Pall Mall. The Defence states that protesters were not violent, although many wore masks, and did not comply with requests that they remove their masks. The pleading describes that the crowd moved in a mass towards Oxford Circus where it stopped of its own accord.

Ms. Austin does make one comment on these paragraphs. Although the Defence did not suggest there had been any violence at this stage, Ms. Austin comments that she neither took part in, nor witnessed, any violence.

Ms Austin would not, of course, have witnessed any of these matters, other than what she happened to see in her position as a person at the Haymarket, on the route to and within Oxford Circus. However, she knows how to contact the police, arising from her considerable experience negotiating with them over demonstrations that she has organised. And, as is apparent from her ability to contact Tony Benn MP from inside the cordon, she has the ability to contact those in a position of prominence in society. She also has numerous connections and contacts with persons of a like mind with her own. If she was not aware before service of the Defence of the matters set out in this section, she became aware when she saw the Defence. Yet it was only during the trial itself that most of this became undisputed common ground, as set out above.

The remaining part of her witness statement, covering some five pages, comments on the final section of the Defence headed “The Claimant’s Factual Case”. She completely disagrees with the Commissioner’s views that she knew or ought reasonably to have known that there would be disorder at the demonstration as the Defence alleges in paragraph 95. She states that in all the May Day demonstrations that she has attended, almost annually since a teenager, she has never seen major disorder. She explains her role in comforting and encouraging and advising the crowd through the megaphone after 4 pm. She emphasises her distress. She states:

“I believe it is extremely important to protest in a peaceful legitimate way to bring about positive change for society. As a result of the policing and treatment I received at May Day Protest I will be extremely apprehensive about going on a protest again. I am a young mother with a small child. I believe it is my absolute right to voice my protest against issues I believe are wrong. I believe the tactics of the police were designed to prevent legitimate protest. If I am unable to protest I will have lost a part of my life that is extremely important to me”.

She was challenged in cross-examination on all but the first sentence of that passage.

Ms Austin is a gifted communicator. She gave her oral evidence in a manner such as might well be adopted by a person who is being interviewed with the media. She was concerned to present a case as well as to recount her evidence as to the facts.

A fuller picture of her day emerged in her evidence in cross-examination. She had spent the first three quarters of an hour of the time in Oxford Circus making speeches through a megaphone on political topics. This is not mentioned in her witness statement. Only after she had spoken to Tony Benn MP did she use the megaphone, as she had described in her witness statement, to encourage people to stay calm and give them advice. She had joined the Labour Party at about the age of 14 and had been a member of the London Committee of Labour Youth. She had seen the violent scenes broadcast on television and published in the papers about the protest on May Day 2000, but she said she was sceptical of what she read in the papers. From talking to people who were there, she says she believed the reports were exaggerated. She said she knew that the Cenotaph had been defaced and she condemned that because, she said, it does not forward the cause of anti-capitalism and neither did the defacing of the statue of Churchill. She knew that McDonalds in Whitehall had been attacked and broken into by the crowd, and she attributed that to a small minority of people using violence when the majority were not involved.

She herself favours organised protests. She was on the National Steering Committee for the Stop the War demonstration. She does not agree with and does not defend the Socialist Workers Party. She was shown a number of video images including a sequence showing the crowd on 30^th November N30 at Euston station. That showed the crowd watching, while what she estimated to be some 40 or 50 people cheered as a police van was overturned. It was suggested to her by counsel that that would be frightening for people going about their ordinary business at the station. To this she responded that it would be frightening for the other protesters. It was pointed out to her that the video images did not appear to show any protesters moving away. At that point, she appeared embarrassed. As I interpreted that, she regretted what she had said about other protesters being frightened at the burning police van. She said that her experience is that a minority are violent, and that we cannot allow a small minority to stop important protests.

Commenting on the published pleas by the Mayor, Ken Livingstone, that people stay away from the demonstration on 1^st May 2001, she said she was shocked that he had betrayed the movement in that way. She said that she did not interpret any of the literature put out by the organisers as incitement to violence and that what she expected was peaceful symbolic protests. An example she gave was of protesters demonstrating with big fluffy dice at the offices of PriceWaterhouseCoopers. She interpreted the organisers’ encouragement to secrecy in their website and literature as being intended to maximise the effect of these harmless stunts.

She recognised that the Metropolitan Police facilitates thousands of demonstrations in London each year, regardless of the political point of view of those demonstrating. She observed, correctly, that that was part of the Commissioner’s duty. She did not explain why, having seen the Commissioner’s Defence, she still maintained in her witness statement that she believed that the tactics that the police used on 1^st May 2001 were designed to prevent legitimate protest.

She said that she had never seen before 1^st May the literature put out by the organisers. When asked why she thought that some of the literature recommended the wearing of crash helmets and padding, she commented that people dress up in all sorts of clothes for demonstrations. When asked why some of the demonstrators were wearing masks, she said that very few were doing so and that she thought they were doing so to avoid being filmed. She herself she said was shocked when she saw from the material disclosed in this action how extensive the filming of herself had been. She said it was intimidating for young people to be photographed. After she had condemned violence in her evidence on more than one occasion, explaining that it did not advance the cause, she was asked whether she also condemned it because it was wrong to injure people. She agreed that that too was a reason why she condemned violence.

She said that in the morning, between her demonstrations in front of Coutts Bank and the World Bank offices, she had done an interview with Swedish television. In describing the crowd as it approached Oxford Circus shortly before 2 pm, she said they were singing and chanting, as they did all day. She could not explain why the crowd went to Oxford Circus two hours earlier than had been suggested in the organisers’ literature (which she had not read). She was prepared to accept the suggestion that that might have been because the World Bank protest had been organised by a group affiliated to or linked with the Socialist Workers Party and they wanted to get publicity by being in Oxford Circus first. She did not appear to recognise the difficulty that this created for the police, finding themselves between a crowd already in Oxford Circus and another crowd converging upon it shortly afterwards. Her comment was that the fact that other people wanted to get in to the cordon in Oxford Circus did not mean that she did not want to get out.

Shown extracts from the video evidence of parts of the crowd pressing on the police at Oxford Circus, she drew attention to the majority of the crowd who were not pressing on the police. She had got on to the megaphone to tell people to not push. She said that it was not news to her that there were a further 2000 to 3000 protesters outside the cordon around Oxford Circus, because she had spoken to other protesters after she had been released. She said that she did not herself see anyone being released although she inferred that two celebrities that she recognised probably had been released because they did not reappear.

Asked why she had not recorded the numbers of any of the police officers she spoke to and whether that was a deliberate tactic, she said it was not deliberate and she had not thought about it, but in future she would. This implies a greater willingness to attend demonstrations in the future than had been conveyed by her witness statement. Excerpts from the video evidence were played to her showing herself with the megaphone at various times in the afternoon. Although looking wet and cold, she appears in good humour. She correctly points out that many of the members of the crowd around her appear similarly. At the end of the day, as people were released, she had been reassured by her friend that her daughter was all right and she did not herself rush home. She invited people present to pass to her on paper or via e-mail their e-mail addresses or telephone numbers. She said a lot of people’s details were recorded on scraps of paper or leaflets which she held, and many people did contact her. As she came out of the police cordon she participated in a TV interview and responded to questions from the press before leaving for home.

Niall Mulholland was born in Enniskillen, Northern Ireland in 1968. He was 37 on 1^st May 2001. He was and still is self-employed as a researcher and journalist for several organisations including one called the Committee of Workers International.

Mr Mulholland had been on many previous demonstrations. His first was twenty years earlier on May Day 1984 in Belfast. This was an official trade union demonstration. Since then he has been on demonstrations between five and seven times a year although this includes small protests which may only have a handful of people. When he lived in Northern Ireland he ran a youth organisation called “Youth against Sectarianism”, and was secretary for the organisation from a period in the 1990s. This is a body that has received Government grants. He permanently moved to Britain in 1997 to live with Ms Austin.

He had no role in the organisation of May Day 2001, and since the start of the proceedings it has been accepted that he would not be violent or foment violence at a demonstration. He said it is generally well known amongst the left and other activists that demonstrations occur on 1^st May. He said there had been a lot of media coverage prior to the demonstration on 1^st May 2001 and it is likely that he would have seen some articles in “The Socialist” newspaper, which mentioned the demonstration. He knew that there was significant media coverage predicting violence. He thought that the media were exaggerating. He was aware of the theme of May Day Monopoly but did not know what was planned. He thought that it was likely that some of the events planned for the day were fake protests designed to distract the police. Asked in cross examination why anyone would wish to distract the police he said he did not know but perhaps it would be to thin police resources.

He remembered the slogan “Sale of the Century”, in the run up to May Day and thought this was an attempt to highlight the actions of multinational corporations such as Nike.

He understood that the demonstration was not going to be a traditional May Day Trade Union event. He knew there would be anarchist groups and others organising events to protest against global capitalism. He was aware that there was no set route for the demonstration and no particular plan for how the protest would work. He saw the May Day demonstrations as a positive development as, by international standards, May Day events in the United Kingdom have always been small.

He saw no sign of aggression or violence from the protestors. I have already recited his evidence as to the World Bank demonstration and the move to Oxford Circus. Once the police cordon was in place, he received a mobile telephone call from outside the cordon stating that other protestors could not get into Oxford Circus. The caller informed him that there were riot police, police vans and mounted police behind the cordon. He then described how matters progressed in terms similar to that of Ms Austin’s statements. Later in the afternoon he saw missiles thrown on one or two occasions but it was not organised or sustained. He said the missiles looked like soft drink cans. He saw what looked like a milk carton flying towards the police.

He said Ms Austin was a key person in Oxford Circus that day but she took the action she did spontaneously. Because she is a very experienced person dealing with demonstrations and dealing with the police she managed to know what the right thing to do was far better than any of the senior police officers they spoke to, he said.

He read the Defence served by the police. His only comment was that at no point did he see anyone armed with bricks.

In cross-examination he said that he was at the demonstration on 18^th June 1999 at the start. He was not there when there was violence but he knew that there was violence. He was also present at Euston on 30^th November 1999 at the end but well away from the violence. He said that he thought that he was also at May Day 2000 but he did not see the violence there. Nevertheless he commented that it was a violent minority who did not represent the majority. He said that most people melt away when violence takes place. Asked why he did not record any of the shoulder numbers of the police he spoke to, he said it was his greatest regret of the day that he did not do so.

I find that Ms Austin was well aware before she joined any demonstrations on 1^st May 2001 that there was a substantial risk of violence and other criminal activities on the part of a minority of the demonstrators that day. This prospect did not cause her any alarm, and she was willing to take the risk of it occurring in proximity to her. She did not, of course, contemplate or take the risk of any unlawful acts on the part of the police. Everyone is entitled to assume that public authorities will at all times act lawfully. During the brief period starting at about 3.30pm when she realised she would not able to leave to collect baby, and ending when she had made alternative arrangements, I have no doubt that she was genuinely anguished, as any mother in that position would be. Apart from that, what was actually done by the police that day did not cause her significant distress. On the contrary, I find that she was stimulated by it at the time, and subsequently proud of what she had done while at Oxford Circus.

Ms Austin’s evidence was truthful, subject to the specific findings I have made, and to some inconsistencies. But it was not the whole truth. The description of herself as given in her Claim Form and in the opening of her case suggests a person quite different from the one she appeared to me to be after she had given evidence in the witness box. She had described herself simply as a receptionist with a young daughter aged eleven months, who travelled to London with her partner to attend a peaceful protest against globalisation and other related issues. She is a receptionist and she did have a baby. She in fact lived in Southwark Street London SE1, which is just South of the Thames, and within about two miles of Trafalgar Square. But she is also a person who has since her teens taken part in demonstrations and other political activity. I find that she was well aware that the protest she was attending was not expected by anyone to end without serious violence. I am not convinced by her explanation of what she told me she expected to happen at Oxford Circus (“harmless stunts”), and I have no explanation of why she went there at 2pm. I have had no explanation from any witness of why they went there at 2pm.

Ms Austin attended court for most of the trial, as individual claimants normally do.

THE EVIDENCE OF MR SAXBY

Mr Saxby was born in 1957 and at the time of giving evidence he was a full time mature student studying religious studies at Canterbury Christ Church University. He is studying for a BA Honours Degree. During May 2001 he was working on a self-employed basis as an office administrator for a company with offices in Hastings East Sussex.

On Tuesday 1^st May 2001 he was in London on business for his employers. He had been asked by the managing director to pick up important documents for a journey he was due to make. First Mr Saxby had to collect a visa from the Kuwaiti Embassy at Albert Gate, Knightsbridge. Then he had to pick up a banker’s draft from the Royal Bank of Scotland branch at 119 Marylebone Road. Finally he had to go to a travel agent at 74 Baker Street to collect airline tickets. He said he was on a tight schedule.

Mr Saxby carried as identification both his own passport and that of the managing director. In addition he had a letter from his employer addressed to the bank, which included the following:

“Please accept this letter as means of introduction to our staff member Geoffrey Saxby who will be collecting on our behalf a bank draft in favour of Bluebird Travel … on 1^st May 2001 at 12pm….”

Both in his written evidence and in his oral evidence in chief he gave an account of how he came to be in Oxford Circus. He said that he left Hastings and reached Charing Cross Station at approximately 11.45am. He said that he does not own a television and does not read the newspapers and was unaware that any protest was taking place in London. He attended the Kuwaiti Embassy in Knightsbridge. In order to get there he used the underground from Charing Cross. He was issued with the visa and finished his business there at about 12.30 pm. His evidence in chief makes no specific mention of his missing the appointment at 12 noon with the bank. When asked about it in cross-examination he said that there was in fact no appointment, and he had been told that the day was his own to do with as he pleased, so long as he obtained the documents.

So he said he planned to go to Tottenham Court Road to have lunch at an Indian restaurant in Hanway Place, London WC1. This is a vegetarian restaurant which he said he frequented whenever he was in London. He said that he intended to go from Albert Gate towards Piccadilly Circus, but he must have turned the wrong way as he ended up at Marble Arch at around 12.45 to 1pm. Piccadilly Circus is of course at the southern end of the part of Regent Street, which joins Piccadilly Circus to Oxford Circus to the North. The quickest way to get from Marble Arch to Tottenham Court Road would have been by underground beneath Oxford Street. However, he decided to take the bus, which goes along Oxford Street, through Oxford Circus to Tottenham Court Road. He said that he found the traffic was almost at a standstill and realised it would be quicker to walk. So he got off the bus somewhere between Selfridges and Bond Street tube station and started to walk towards Oxford Circus.

He said that when he got to Oxford Circus he noticed a lot of activity. He said that, while not being a Londoner, he had been in Oxford Circus a few times and realised that something different was happening. He said there was a group of people in the middle of Oxford Circus in the road. He said they were singing and there were drums and they seemed very happy. He said he became distracted watching them. Then he said he remembered he was on his way to get lunch and needed to do so quickly because he was both hungry and had a tight schedule to stick to.

In cross-examination he recognised that this account could not be correct. The CCTV cameras, and other video recording equipment in use that day, make clear, and it is agreed, that the demonstrators who did have drums and were singing, did not reach the middle of Oxford Circus so early. They in fact arrived almost exactly at 2pm. The timings on images, which include pictures of Mr Saxby, show that he was present at Oxford Circus at 13.45 and that the traffic was flowing freely at that time. He was apparently walking in an anti-clockwise direction around Oxford Circus from east to west at 13.45hrs. Commenting on his own appearance in the video images Mr Saxby said that he appeared confused and that he was in fact disoriented. In cross-examination he also said that in fact he did not have a tight schedule and he was free to do as he wished so long as he was on time to pick up the documents from the bank and the travel agent.

Mr Saxby described what he saw as: “a group of people in the middle of Oxford Circus, in the road. They were singing and there were drums and they seemed very happy”. This is surprising. What the video images show at 2pm is a large group of people walking in a disorganised fashion up from Regent Street South and arriving in Oxford Circus at a determined pace and making a great deal of noise. It is clear that they are celebrating their arrival. But a striking feature of the images is that a number of people in that crowd appeared to be wearing facemasks. Mr Saxby says he does not recall seeing that. Nor did he see a person throwing a missile as that person neared Oxford Circus. The banners carried by some members of the crowd are large and bear in clear writing the text “F***K CAPITALISM”. Asked whether he looked at the banners, Mr Saxby said that it was the music that attracted his attention and that he could not recall the placards. He said it did not mean much to him and it could, so far as he was concerned, have been a footballers’ demonstration. The content was immaterial to him.

It is hard to understand how anyone could have failed to see that this was a political demonstration and not a group of football supporters or anything else. On the other hand, as already recited, there was a demonstration in Oxford Circus by cyclists between about 12.40 and 1pm. But that does not fit Mr Saxby’s timings either.

There are images timed between 2pm and 2.15pm showing members of the public leaving Oxford Circus, a number of them with apparent relief on their faces. There is an image of Mr Saxby at 2.12pm standing to the South west of Oxford Circus. He recognised himself and said the crowd was voluble and that was why he was there. The images show a much noisier group of people in the North East part of Oxford Circus.

In his witness statement Mr Saxby continued as follows. He said he walked over to Oxford Street East, but a white male police officer in his 50s barred the way. Mr Saxby said that the officer spoke authoritatively and said words to the effect that he could not come this way. Mr Saxby did not argue. He turned round to go down Regent Street South and cut through the back streets to get back on his route to Tottenham Court Road. He says that when he turned into Regent Street he was stopped by a policeman and a policewoman. The policewoman said that he could not go down there or words to that effect. She did not give him an explanation why when he asked. He said that at that point he became slightly anxious, working out in his head whether he would still have time to get to the restaurant and back to Marylebone before business closing hours. None of this encounter appears on the video images. That does not of course mean that it did not happen. But when he is visible on the video at 2.12 pm Mr Saxby does not appear to be either anxious or attempting to leave Oxford Circus.

Mr Saxby’s witness statement continues. He says that he was not particularly aware of the police presence higher than one he would have thought to be normal. He says he milled around in Oxford Circus watching the entertainers in the crowd and trying not to become too anxious about time and getting everything done, he said the situation was unknown, which in itself made him feel slightly anxious. However, he said the crowd were extremely good natured and pleasant and he started to relax and enjoy the unexpected interruption to his day. He says he did not wear a watch but he would imagine it was around 2pm that he realised he was in a potentially dangerous situation because police were pushing him and others into Oxford Circus. He said the atmosphere was party like and there was no trouble from the crowd or any indication of trouble arising. At that point he said he saw the police lined up in a human chain across Regent Street and they started to push the crowd back for no reason at all. He said the crowd was very tightly packed and the police were using their shields. At that point he realised he was penned in. It is now common ground that this in fact happened at about 2.30pm.

Apart from the error of timing, this description of events is also surprising. It is clear from the video images that at about 2pm there were a very large number of police officers in and around Oxford Circus. It may well be that the majority of the crowd were extremely good natured and pleasant. But it is common ground that the crowd in Oxford Circus at that time was very large numbering over 1,000 people. Some of those in the North East part of the area were not good natured and pleasant. I have no doubt that is why Mr Saxby was in the opposite part of the Circus. That meant, of course, that he did not see what appears on the video images. But in general terms I find it surprising that he does not mention in his witness statement that the situation after 2pm was one in which the shoppers who would normally cross and re-cross the roads around Oxford Circus would have felt most uncomfortable.

In his witness statement Mr Saxby says that it is at 2.30pm that he walked up to a policeman on the East side of Oxford Street and asked him how long he would be kept and was told he would be let out as soon as possible. If the intervals between the events given in the witness statement are correct then that incident must have been considerably later than 2.30 pm. But Mr Saxby’s timings are so inaccurate that there is no basis for me to accept that his timing intervals are correct. It is impossible to give an accurate timing because there is no image of this occurring and Mr Saxby did not make a record of the police officer’s shoulder badge number.

Mr Saxby says that he told the officer that he had to go and collect a banker’s draft from the Bank of Scotland in Marylebone Road. He said that he told the officer that he was nothing to do with the demonstration and had documentation from the firm he was working for, a visa and passports to show who he was and the business he was on. He said that the policeman responded that the only way anyone could get out was if they had a press card. Mr Saxby said he continued to explain that he had documents showing where he had been and where he was going but the police officer would not engage in any discussion with him. Mr Saxby said he found this attitude unreasonable. Mr Saxby had the documents in a pouch but he did not, in these circumstances, show them to the officer. It is plain that if at 2.30pm, in support of his request to leave for business, Mr Saxby had produced to an officer a letter saying that he had an appointment to attend at 12pm in Marylebone Road, the officer would have been acting reasonably if he regarded the explanation with suspicion.

Mr Saxby said that he made another attempt to get himself released by asking a policewoman, which was unsuccessful, and a further attempt at 3.30pm, when he went up to a policewoman and a policeman and repeated his request and offered his documents. He says the policewoman said they were letting people out at around Portland Place and he went there. He said that he found that it was seriously over crowded and had in mind the tragedy at Hillsborough.

Mr Saxby in his witness statement says that it was around 4pm that he first heard the often repeated formal police announcement saying “you are being detained to prevent a breach of the peace and damage to property” (like Ms Austin he omits the next two sentences of the announcement about release). He said he found the message insulting in the extreme and that it was met with jeers and boos from the crowd. He says there was nothing to indicate that a breach of the peace was likely or that anything else untoward would take place. By this time he says that police in full riot gear with visors and shields had lined across each of the exits from Oxford Circus.

This evidence is not credible. It is clear from the video images that the police had good reason to put on protective gear with visors, given the attitude of some members of the crowd. Mr Saxby was in the South West corner, he says, and would not have seen what was going on. But I find it hard to credit that he would have been unaware in a general way that the police were facing a hostile and disorganised crowd in the North East corner and had good reason to fear a breach of the peace.

Mr Saxby says that when the police put on protective gear the impact on the crowd was noticeable. He says that the police presence was intimidating and oppressive but despite this the crowd remained calm with a good natured resignation to the situation. He says that although it was clear that many people were scared and anxious, the performers kept the crowd’s spirits up. Mr Saxby could see no reason for the riot police, mounted police and vans. He said the crowd had been detained and were not causing any trouble. He was impressed by the resignation without hostility of the protestors to their situation.

In his witness statement he continues that by 4.30 pm he was cold, hungry, thirsty and needed to go to the toilet. He became concerned about the wellbeing of other members of the crowd. He thought it was highly irresponsible and callous of the police to omit from their planning provision for food, water and toilets, all of which are needs which a human being has a right to expect. He says that at 4.30pm he managed to contact his managing director. At about that time a rumour spread that there had been trouble outside John Lewis in an area that was therefore outside, and to the West of, that in which he was confined. Again he asked to be released, seeing that another person had been released, and again he was told that the police would be letting people out in a minute at Portland Place. He said that he went there and there was a crush comparable to a very busy football match when the crowd goes out of the stadium.

At 8.30pm the crowd surged forward and the police pushed them back. He feared people would be crushed. He blamed the police, shouting to an officer “don’t be so f…ing stupid, if you do that someone will be killed”. Eventually he found himself in a corridor with police at the side and as he went through the corridor. A camera flashed and his photograph was taken, but he was not searched or stopped when he was leaving. He says he was appalled at the unnecessary and aggressive policing and was impressed with the attitude of the protesters who remained calm and good natured in the most provocative of circumstances. He says he witnessed the police acting irresponsibly and with total disregard concerning crowd control and the safety of individuals penned into a confined area. What he had to endure, he said, was humiliating, degrading and embarrassing treatment. As a result he says he has lost faith in the police as protectors of citizens of this country and has subsequently had an experience of anxiety when watching a crowd.

It is difficult to know what to make of Mr Saxby’s confused account of how he came to be within the police cordon around Oxford Circus. It is now common ground that he was walking round the Circus for no apparent purpose well before the crowd arrived. He could, and on his account of his programme, he should, have left it to reach his restaurant long before the police cordon prevented people leaving at 2.20pm.

I find that he was lost for at least part of the time before 2pm. From then he probably stayed out of curiosity. But the account he gives of what he saw is not objective. This may be attributable to the sense of grievance against the police that he developed as the afternoon wore on, or it may be for some other reason. But his evidence is far from reliable. I accept that he did suffer some distress, but it was to a modest degree.

The picture that he presented of himself in his witness statement is unfortunate. It gives a misleading impression of the merits of his case. He was not a businessman on a tight schedule with documents to prove that he should not be being detained. After giving his evidence, Mr Saxby did not appear in court again during the trial.

EVIDENCE OF OTHER WITNESSES FOR THE CLAIMANTS

In addition to the written statement of Mr. Saxby’s employer Mr Geoghegan, and of Mr Gilbertson the expert, the claimants called the following witnesses. They were Alex Nunns, Caroline O’Toole, Peter O’Shea, William Eaglestone, Mark Dawes, George Black, Jack Shenker. All are persons who have notified claims to the Commissioner which will fall to be decided following the determination of the first two claims.

I have accepted the evidence that was given by them all as to the physical conditions in Oxford Circus. As to how the crowd were behaving, I have seen the videos for myself, and I accept the evidence of the police as to what happened to them. Where the Claimants’ witnesses say that they did not see what happened, that does not affect my conclusion. The evidence they gave as to asking to be released is not disputed, and I accept it, as I have recited above.

In these circumstances, I do not need to set out the remainder of their evidence. It is also undesirable that I should do so. In the case of those who have notified claims against the Commissioner, it would not be right if I were to make findings in circumstances where, as here, they are not legally represented. The cross-examination of them has also been conducted on the footing that they were giving evidence as witnesses and not as claimants. Other questions might have been relevant if they had been claimants.

CONCLUSIONS ON LIABILITY

Art 5 Question (i): Did the containment amount to a deprivation of liberty within the meaning of Art 5(1)?

During the period between about 2pm and 2.20pm, the cordon was not absolute. It did not go to the building line, but only across the roadway. People were free to leave by the pavements. During this period there was clearly no deprivation of liberty.

During the subsequent period, from 2.20pm up to the times when each Claimant was released, no one in the crowd was free to leave without permission. Subject to consideration of other factors, the detention was sufficient physically to amount to a deprivation of liberty. But the answer to the question requires that account be taken of the ranges of factors identified as relevant in the Strasbourg case law, one of these being the intention of the police. I remind myself of what these are (although this statement of them from HL v UK at para 89 does not include intention):

The Court is drawing attention to the words of Art 5 “No one shall be deprived of his liberty”. But when is a temporary detention a deprivation and when is it a restriction which is not a deprivation? The jurisprudence does not give a clear answer to this question.

The specific situation of each Claimant is that they were entirely at liberty before 2pm on MD01. The duration of the detention was never expected to be the seven or so hours it turned out to be. What was expected was a detention that was likely to last some two or three hours at most. That was the expectation at 2pm, and at each of the occasions up to about 6pm, when the matter was reviewed by Silver and the Bronzes at the location. The expectation became correct at about 6pm, but not before. The measure was a close confinement, with minimal liberty in Oxford Circus, and its effects were severe, increasingly so as time went by, as I have described at the start of this judgment. On the other hand, had they not been detained as they were, they would probably have found themselves in an increasingly disorderly situation, with one or two thousand other people converging upon them in Oxford Circus over the subsequent two hours. These considerations point towards the detention being a deprivation of liberty, rather than a restriction, albeit a deprivation which most people would regard as preferable to the likely alternative situation.

So I turn to intention. The police were, of course, intending to detain the crowd, but intention (as used in X v Germany) must mean more than that. The police were intending to prevent crime, and they were intending to ensure the safety of persons, the preservation of property in Oxford Street, and the protection of other rights of third parties. The police also intended to segregate some members of the crowd from others, if appropriate by asking them questions, or by searching them pursuant to s.60. The criteria to be used for segregation raises a separate issue, which I shall consider below.

But the police were also engaged in an exercise for the benefit of those in the crowd, to protect the members of the crowd from danger from each other, and from others who wished to join their number. The main risks were from crushing and trampling, but there were also risks from missile throwing. Missiles aimed at the police were likely to miss, and to hit other members of the crowd. A missile that was intended to strike an officer in protective clothing and a helmet, might cause no serious injury to him or her, but could be fatal to an unprotected member of the crowd. I have in mind the wooden poles, full beer cans, and containers of lighted petrol, (not to mention the 1.7kg brass fire hydrant cap used in Holles St). And missiles were starting to be thrown as the crowd arrived at Oxford Circus, and before the cordons were put in place. This crowd of over 1,000 in the middle of a major London cross roads needed measures to be taken to control them for their own protection.

Those taking the decisions at the relevant time for the police were mainly Mr French and Ch Supts Webb and Allison.

Once the cordon was in place, any measure of controlled release was bound to have taken a considerable time before all the crowd were released. It is impossible to say how long it would have taken, if there had been no searches or evidence gathering, but it would have been more than a matter of twenty minutes. If a release was to be combined with searches and evidence gathering, it was bound to take as long as this one took from the time it restarted at 7.30pm, that is about one to two hours at least.

One means to achieve the prevention of injury or loss to third parties was the denial of access to Oxford Street and to Regent Street South of Oxford Circus. Had the police simply put a three-sided cordon in place, leaving an exit North, then it is plain that that would not have been a deprivation of liberty. It might have been a restriction on movement, but that is not what happened, and I need not consider it.

If the only reason why the police detained the crowd had been to take such temporary measures for the protection of the members of the crowd themselves, then I would conclude that this was not a deprivation of liberty within the meaning of Art 5(1), but that it was a restriction of liberty. The case would be similar to Guenat v Switzerland. The police owe common law duties of care a crowd for whom they have taken, or should take, control. This is the duty of care to prevent death or physical injury, which was admitted in the Hillsborough litigation. It is also the positive obligation recognised in Osman v UK. If the police are to fulfil such duties effectively, it must follow that they have the powers necessary to enable them to do so, and that these powers should exist where there can be no question of intending to take the detainees before a judge. Necessary powers must include the power to use reasonable force to ensure that members of a crowd stay where the police reasonably require them to stay for as long as is necessary to allow them to disperse safely.

The same conclusion, that Art 5(1) is not engaged, might be open to me, on the basis that the police were intending to question or search members of the crowd, if they thought appropriate, before deciding whether to arrest anyone. That would be similar to X v Germany. But I have to say that I find the principle in X v Germany difficult to discern. The Court of Appeal did not need to resolve the difficulty, which they explained in Gillan at para 41-43. The police had no power at common law to detain a member of the crowd for questioning. Gillan was a case under the Terrorism Act 2000 ss44 to 47, which is comparable to the s.60 powers in force on MD01. But the few minutes for which each claimant in Gillan was detained is difficult to compare with the two to three hours which the police expected the containment at Oxford Circus to last, let alone the seven or so hours which it actually lasted. Moreover, the principle of proportionality may allow more latitude in a terrorist case than in a public order case, even one as bad as the present one.

Accordingly, I conclude that the detention was a deprivation of liberty within Art 5(1).

Art 5 Question (ii): Is the containment capable of being justified under Art 5(1)(c)?

The purpose of the police was not to bring before a judge every person in the crowd. Their purpose was, however, to arrest and bring before a judge all those who they reasonably suspected of having committed an offence, or whom they reasonably considered it necessary to arrest to prevent them committing an offence, subject to certain conditions, which were to be fulfilled or not (as the case might be) within less than seven hours.

One condition was that they would have the resources to effect such arrests while at the same time being able to prevent violence by other necessary means. For most of the afternoon they did not have the resources to effect arrests, since the arresting officers would have had to leave the cordon. Another condition was that they should first have an opportunity to consider whether, in relation to each member of the crowd, arrest was a measure that was both available to them in law, and practicable.

The detention was imposed with the conditional purpose of arresting those whom it would be lawful and practicable to arrest and bring before a judge, and to prevent such persons as might be so identified from committing offences of violence. Ch Supt Allison put it this way in his witness statement:

Of course, that procedure can only be adopted where offences have been committed or are likely to be committed, which would justify such measures. Otherwise the purpose to bring the detainees before a judge would be fanciful not conditional. But there were undoubtedly offences being committed here after 2pm, and that was always likely. The video evidence and uncontradicted police statements show serious offences, including arson and assault on the police, amongst others, being committed under the noses of the police cordon. And Brogan v UK shows that even seven hours is well within the time scale encompassed by the word ‘promptly’ in Art 5(3).

Art 5 Question (iii): Did it appear to the officers detaining each Claimant that (a) a breach of the peace was about to be committed? And (b) if so, did it appear that each Claimant was about to commit that breach of the peace?

There is no dispute about (a). Mr French says so in terms in his Decision Log, and his honesty has not been challenged. The same applies to the other officers.

Question (b) is more difficult. Looking at the contemporaneous documents and the evidence in chief, I find no statement by the police as to their state of mind as to any particular member of the crowd. Nor is there a statement as to their state of mind as to every member of the crowd. This is not surprising.

So when the case started it seemed to me that the defence might face a substantial hurdle at this point. I remain concerned at making a finding of fact as to the state of mind of the police in these circumstances.

The nearest Mr Beggs comes to asking me to make such a finding is at para 359 of his opening skeleton, cited under the heading Contentions of the parties. That amounts to a submission 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. That proposition must be too wide. It seems to me that if the question is not asked, and answered in the affirmative, in a way that encompasses each Claimant, then the case against these Claimants based on powers to prevent a breach of the peace must fail.

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

Mr Starmer QC understandably placed some emphasis on this. If the policy described was working, Mr Saxby was one of the individuals who should have been released. But more fundamentally, Mr Starmer QC submitted that officers should have been asked to differentiate between violent and non-violent protesters. He submits that there is no basis in law for a distinction between demonstrators and non-demonstrators. The implication of the evidence of Ch Supt Allison was that it appeared to the police that the Claimants were simply demonstrators, and that is not the same as them appearing to be about to commit a breach of the peace. Mr Starmer QC submits that quite simply the wrong test was being applied.

The evidential position developed as the witnesses were cross-examined. They were asked why the Claimants had not been released when they requested to be. At that point it became clear that Mr French and Ch Supt Allison did not just regard the task of distinguishing between individual members of the crowd as difficult. The only distinction that they were able to make was in cases, for example, of those who were obviously shoppers or tourists, or who presented themselves for individual consideration, where it might appear that they could be released, or that they needed to be released in priority for some personal reason such as ill health or injury.

I have already recited the evidence of Ch Supt Allison. He said that he could not himself differentiate between those protesters who would be violent, or provoke violence, and those who would not. He said there are not separate categories within a crowd. An individual may be peaceful at one time, but threaten or provoke violence at another. He was referring to a stage before each member of the crowd had been individually considered by officers on the dispersal corridor as they left through it. I find that this probably represents the state of mind of the officers in the cordon.

I accept the police evidence as to this. I do so the more readily because they made no attempt to embellish it by saying in terms that they suspected every member of the crowd of being someone who would commit the breach of the peace which they thought so likely to occur. They did not use inclusive words to that effect.

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.

It is clear that the explanation of the release policy in Ch Supt Allison’s instructions cited above is not complete. The reasons recorded by individual officers for those whom they did release include reasons personal to the released person, such as injury or ill health. This is what is to be expected if officers on the cordon were applying to the question of release the criteria that police officers must always apply in exercising their discretion whether to arrest a suspect or not. There is also evidence from Ch Insp Read that he reminded his officers to continue to release people who were not a threat, and that did happen, in particular with people whom officers had been able to observe behaving peaceably over a long period. I find that the officers on the cordon did not treat Ch Supt Allison’s instructions as overriding their duty as constables to exercise their own discretion. They would have been wrong to do so.

An alternative way of putting the case for the police might be that Ch Supt Allison and others were applying the right test, and considered that all those who appeared to be demonstrators satisfied it.

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.

However, if that inference can properly be drawn in this case, it is unlikely to be capable of being drawn in all crowd cases. It seems to me that one of the advantages of approaching the matter through Part II of the 1986 Act (if that is possible) is that it avoids the need for embarking on this difficult exercise. Similarly, if necessity is available in principle as a defence, it would be applicable where the detainee was not suspected, and would obviate the need to address this issue.

Art 5 Question (iv): did it so appear on reasonable grounds?

One reason why the police put in the North cordon was that they believed that some members of the crowd, probably numbering a few hundred, were about to commit acts of violence in Oxford Street, and at that stage they could not distinguish which members of the crowd were likely to do that. The fear of violence is clearly given as a reason in Silver’s Decision Log entry of 2pm.

The police believed that the violence would be similar to that which had occurred on J18, N30 and MD00, and on other occasions abroad, such as in Quebec, Prague and Washington DC. The violence on the three English demonstrations in my judgment gave the police reasonable grounds to believe that there was a real risk, not just to property, but also of serious personal injury and even death. It was the death of Kevin Gately in the Red Lion Square demonstration in 1974 which had led to the introduction of the methods of public order policing which the police had been developing since then, and which they were adopting on MD01. And everyone had Hillsborough in mind. It is obvious from the videos of the three previous English demonstrations that on MD01 there was a real risk of serious injury and even death (as well as damage to property) if the police did not control the crowd. Those at risk included members of the public, police officers and other demonstrators.

There were a number of bases for this belief that there would be violence. There was the intelligence assessment that there would be violence. There was the lack of co-operation on the part of the organisers, which made it impossible to put in place in advance the usual measures for preserving public safety, such as separating demonstrators from non-demonstrators and moving traffic. There was the fact that on the day there had been found a number of individuals wearing protective clothing and masks, and that masks were visible on members of the crowd arriving at Oxford Circus. The crowd had arrived at Oxford Circus walking in amongst the traffic, and demonstrating a lack of co-operation with the police. The organisers’ literature could reasonably be understood as incitement to looting and violence, and it was hard to understand it in any other way. The belief of the police was clearly reasonable.

There are further reasons why the fear could reasonably be said to relate to all members of the crowd. The crowd had assembled voluntarily as a group at Haymarket, and had processed as a group to Oxford Circus, and stopped in the roadway. So those in the road way could reasonably be understood not to include shoppers and tourists, who would have been on the pavement. Shoppers and tourists could not spill out on to the road at that point because of the barriers. Moreover, by the time the cordon became absolute at 2.20pm, shoppers and tourists had had time to leave Oxford Circus. Anyone who remained could reasonably be assumed to have stayed either to participate in the demonstration, or to watch as bystanders. But there would be no means of distinguishing demonstrators from bystanders other than by talking to them or searching them. The longer the crowd remained in Oxford Circus, and the more people were released individually, the more readily it could be understood that those who remained were, or might well be, demonstrators, some of whom might become violent (but which of whom the police could not know at least without considering them individually, and perhaps searching them).

For these reasons I find that, as regards each Claimant, the appearance that she and he was about to commit a breach of the peace was reasonable, at least for the period up until they each came forward and asked to be given individual consideration.

Art 5 Question (v): were the measures that the officers took reasonable steps to prevent each Claimant from breaking or threatening to break the peace? This gives rise to the following sub-questions directed to whether less intrusive action should have been taken such as: not including the Claimants in the containment; releasing each of the Claimants individually when they asked; releasing everyone collectively at an earlier time.

I have already considered the suggestion, advanced with the support of Mr Gilbertson, that alternative less intrusive measures were open to the police before 2pm. I have rejected the alternative suggestion that the crowd should have been directed from Piccadilly Circus West along Piccadilly. The second alternative, denial of access to Oxford Circus, was, as I have said, in fact attempted against new crowds after the contained crowd had been cordoned in Oxford Circus. That resulted in another absolute cordon in Holles Street. It is clear that denial of access was not really an alternative at all.

If the police were going to segregate some members of the crowd at Oxford Circus from others, they could not do so without putting a cordon round all of them. If they did not put in an absolute cordon, some of the potentially violent members of the crowd could, and in my judgment undoubtedly would, have forced their way out, as they in fact attempted to do by 3pm. The violent minority would not have co-operated with a simple request. If the police were to prevent violence, and the risk of injury to persons and property, they had no alternative at 2pm but to impose an absolute cordon.

The Claimants did not suggest that any of the officers acted in bad faith, in any respect. I recall all the steps the police took before MD01 in terms of intelligence gathering, training, and seeking to contact whoever might be the organisers. I recall the complete lack of co-operation from the organisers of the meeting scheduled to take place at 4pm in Oxford Circus, and the absence of any warning from the crowd that they were heading there at 2pm. I recall also that one of the stated objectives in the Operation Order was: “Facilitate and police all legitimate protest”. I find the police did that when the members of the crowd were in the Strand and in the Haymarket, and that they intended to continue to do so, so long as that was possible. On that basis, and on the basis of the facts that were not challenged in cross-examination, I conclude that the 2pm decision to impose an absolute cordon, and the effective imposition of it at about 2.20 pm were proportionate responses by the police to the presence of the crowd in Oxford Circus.

In his closing address Mr Starmer QC did not resist such a conclusion. He said that Ms Austin would not have minded an absolute cordon at 2pm, on the understanding that she would be released when she asked to be. Her complaint was not that the police should have done nothing at that point. It was that she could not leave when she wanted to, and that the cordon was in place for about seven hours.

There was no means of imposing an absolute cordon without including Ms Austin in it, because she had placed herself in the road, not on the pavement. The length of the detention and the question of her individual release are considered below.

It might have been possible to impose an absolute cordon without including Mr Saxby, who was standing on the pavement. It might have been possible to clear people off the pavement by persuading, or forcing them, to move along the pavement, instead of into the road.

The reason why people were moved gently off the South side pavements on to the road was a tactical decision by Ch Supt Allison. He did it without telling the people what he was doing, because he had doubts about the ability of his cordon to withstand an attempt to break out. He did not want to trigger a break out. He thought that there was a risk of his triggering an outbreak if he made it apparent to the crowd in the road that they might leave in a group. I accept that this assessment of risk is one that was reasonably open to him. It is not one that I am equipped to judge for myself, or that I am required to judge for myself, in the circumstances described earlier in this judgment.

It was not practicable for the police to release the crowd collectively earlier than they did. There are a number of reasons for this, as shown in the Decision Log of Ch Supt Webb, and the other facts that I have set out above.

There were periods when the dispersal route was blocked by other crowds attempting to get into Oxford Circus. It would not have been reasonable or safe to allow these crowds to join each other without controlling their movement. In some cases, if a dispersal route chosen by the police becomes unavailable, it might be reasonable or necessary for the police to choose another route. That is not this case. The reasons why the police had imposed the cordon in the first place were also, and equally good, reasons for not permitting the crowd to disperse as a group to the South, the East or the West.

There were long periods during which the police did not have the resources to provide for safe dispersal. In many cases the absence of resources is not a ground that can be relied upon by a public authority for failing to do what would otherwise be necessary or reasonable. This case is not one of these. It is not suggested that the Commissioner could or should have made available more police officers than he did have on the streets that day.

One reason the resources were inadequate was that a substantial proportion of the crowd was not co-operating with the police on the cordons around them. It is not possible to assess exactly the proportion who were not co-operating. I estimate that about 40% were actively hostile at any given time, pushing and throwing missiles, and otherwise showing lack of co-operation. Those not pushing or throwing missiles were not disassociating themselves from the smaller minority who were. The Claimants rely on the evidence of PS Stacey, looking down on the crowd from above. He estimated:

“ … very roughly that about 60% of the crowd remained calm and looked bored. They were just standing around for much of the time. About 40% were drinking and jumping about and were the ones causing the problems”.

There is no clear demarcation between those, mainly at the North, who were pushing and throwing missiles, and those, mainly at the South, who were not. On the few occasions when officers did enter the containment to arrest a suspect, or prevent their fires spreading, there is no sign of the crowd attempting to make their task easier. As a result the cordons required to be manned by enough officers to resist a concerted push by these people to break out, and few incursions could be made to arrest suspects. A co-operative crowd could have been contained by a single line of officers, thinly spaced, as London demonstrations usually are. That took away officers who otherwise could have been deployed to control the dispersal.

The other reason why there were insufficient resources is that other crowds outside the containment were refusing to accept control by the police. These other crowds were engaged in the same quest for Oxford Circus which had driven the crowd which arrived at 2pm. It is artificial to treat them as separate crowds, as might be appropriate when there are demonstrators and counter demonstrators out on the same day, or when there are two sets of supporters of two rival football teams. But even if the crowds are to be treated as separate, the police were doing the best that they could in the most difficult circumstances. The resources they needed to control the dispersal of the crowd in Oxford Circus were necessarily and properly deployed elsewhere. That did not mean that the police had to allow the crowd in Oxford Circus to disperse without control. That would have been an abnegation of their duty to prevent a breach of the peace, and of their duty of care and the positive obligation incumbent upon them to protect the members of the crowd and third parties, including police officers, from the risk of serious injury, as well as to protect third parties from risk to property.

It is said that the police should have foreseen the arrival of new crowds after 2pm, for the 4pm rendezvous. In fact I find that they did not. They thought the crowd they saw at 2pm was the 4pm crowd arriving early. But I cannot see what difference it would have made if they had foreseen the imminent arrival of the crowds that did in fact start converging on Oxford Circus after 2pm. It would have meant that they could not have expected to start controlled dispersal as early as they attempted to. But it would not have meant that they should not have imposed the absolute cordon at all. For reasons I have given, I find that they were duty bound to impose it.

I also reject the submission that the police were wrong to bring into the cordon those to the North and South who were trying to get in. This is seems to me to have been an operational decision which was well within the range of reasonable options.

That leaves the possibility of individual release of each of the Claimants. There are two main points under this head. The first is whether the release policy was defective. The second is whether the Claimants ought, on the facts personal to them, to have been released.

I have already considered the criticisms advanced against the release policy, and the circumstances in which this point assumed significance at the trial. I am unable, on the evidence, to find what release policy there should have been, other than the one that was communicated by Ch Supt Allison (and that was to be interpreted subject to a constable’s discretion), which would have been workable in the circumstances that in fact existed in Oxford Circus on MD01.

The second issue on individual release (whether the Claimants ought, on the facts personal to them, have been released) depends on the burden of proof. The Commissioner (through no fault of the police) has no evidence as to why each of Claimants was refused release when they applied for it. There is no evidence of the identity of any officer to whom either of them spoke, and no precise evidence as to where in the cordon, or at what times, they requested release.

I find that neither Claimant requested release before about 3pm. By that time the situation had already developed the difficulties and dangers which I have described above. On the other hand, there is evidence that at least 200 (as the Claimants would submit) and probably nearer 400 individuals (as I find) were released individually, some of them at about that time. So the two Claimants could have been released safely. Of course, the fact that it was possible to release some members of the crowd individually does not mean that it would have been possible to release all members of the crowd. Nevertheless, I find that it would have been possible to release the Claimants individually.

If the burden of proof were on the Commissioner, I would find that he had not discharged it. But I have held that the burden of proof is on the Claimants to show that the exercise of the discretion to detain was unreasonable, whether to the Wednesbury threshold, or to a more intense level of scrutiny (more favourable to the Claimants). In this case, since the difference between individual release at say 3pm, and the actual release is about 6 to 6 ½ hours, the consequences of a wrong decision on individual release are not so great as to require a departure from the Wednesbury standard.

When Ms Austin asked for release, she had a megaphone, through which she had been making speeches for about three quarters of an hour before she requested release. But she also had what, at first impression, is a compelling reason to leave, namely to collect her baby. But it was a reason which it would have been easy to fabricate, including by arranging for a person to answer the telephone to any officer who attempted to check the story. In fact it was impractical for the police to attempt to check stories by ringing numbers in the circumstances that prevailed. And Ms Austin was not saying that she was in physical distress. It is clear from her subsequent activities that she was not. Had Ms Austin been unable to find someone to collect her baby, I have no doubt that her distress and anger would have increased very rapidly, and, being the articulate person she is, she would have made her anguish very clear to the police. In that situation, I think it is likely that she would have been released, as were a number of people who became ill, or were in panic (a man in a panic was released as late as 5.45, as recorded by PC Trevithick).

As it was, I find that an officer confronted with her, Mr Mulholland, and their explanation could reasonably have concluded that theirs was not a case requiring individual attention, and that they could reasonably be required to wait for the collective release. An officer could reasonably have feared that she might be intending, if released, to use her megaphone in a manner which would aid those intent on obstructing the police.

It must be recalled that at each stage of the afternoon the collective release was expected to start without much delay. It was not expected to be effectively commenced as late as 7.30pm.

Ms Austin states that she was appalled to be told that she had only herself to blame. But she speaks with a conviction as to her own innocent intentions which the officer might not have shared at the time he made those remarks. His remarks, as reported by Ms Austin, are ambiguous. Viewed from Ms Austin’s point of view, they are inappropriate. But if he did suspect that she might be assisting those who were threatening a breach of the peace, they would not have been inappropriate. I cannot tell which they were. It is the case that an innocent person who chooses to be present at a scene where she has reason to believe that others intend to commit violent offences may give reasonable grounds to the police to suspect that she too is about to commit an offence.

Mr Saxby’s evidence as to times is unreliable, for the reasons I have given. I have said that I do not doubt that he asked to be released. But I find that the inaccuracies in his evidence as to how he came to be in the cordon, and the inconsistency first about his being on a tight schedule, and then about having the day to himself, are very substantial in the context of this case. These inaccuracies are unexplained. I do not find myself able to rely upon the details of Mr Saxby’s accounts of when and how he asked to be released, or what the response of the police was. He did not convey the impression of having a strong personality, as Ms Austin and Mr Mulholland each do. While I do not doubt that they would have made themselves understood, I do doubt that Mr Saxby would have, given the environment in which the police were operating.

I find that a police officer confronted by Mr Saxby’s request for release might well not have understood the urgency of his need, and would not have been unreasonable if he or she had declined to believe what he said.

Additional points taken for the Claimants were that communication with the crowd was inadequate and ineffective, and that the facilities for the contained crowd lacked necessities such as food, drink and toilets.

Communication was adequate, although it is admitted that it could have been sooner. I have set out above the announcements made by PS Stacey through the public address system.

The police did not, and could not, have foreseen that a crowd would be held at Oxford Circus for seven hours. They had foreseen that a crowd might be held for a part of the five hours from 4pm, the announced meeting time. That is why they installed the public address system. But it was not practicable to install toilets at Oxford Circus, for reasons of space and the disruption it would have caused before the crowd arrived. The provision of water would have presented dangers (as would toilets if they had been installed). Both could, and in my judgment would, have been used as weapons against the police by a minority of the crowd. The increased risk of injury to police and other protesters was not proportionate to the discomfort of the members of the crowd.

Finally on this question, I note that in the present case there has been no challenge to, or doubt cast upon, the intelligence, which Det Ch Supt Mitchell of Special Branch said was available in this case. And Commander Allison in oral evidence remarked that “We had a Special Branch assessment which was one of the worst that we had seen in London”. This is not a case where the intelligence relied upon has proved to be misleading or unreliable.

The evidence is also clear and undisputed as to the experience and competence of the officers responsible for policing that day. They were the most experienced public order officers in the MPS, as both experts agreed. That means they were the most experienced in England. The only other part of the United Kingdom that has experience of major public order policing is Northern Ireland, and there the circumstances are completely different.

Art 5 Question (vi): Was there a procession or public assembly being held at Oxford Circus at 2pm?

This is not, and could not, be in dispute.

Art 5 Question (vii): did the senior police officer, having regard to the time or place at which and the circumstances in which the public procession (or public assembly) was being held and (if it was a procession to its route or proposed route), reasonably believe either (a) that it might result in serious public disorder, serious damage to property or serious disruption to the life of the community, or (b) that the purpose of the persons organising it was the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do?

The directions were given by Mr French to the officers present at the scene, and through and by them to the crowd. All of Mr French and the three Bronze commanders, Messrs Mackie, Webb and Allison, believed that the facts necessary to fulfil condition (1)(a) in each of ss 12 and 14 were present. For the reasons already given, those beliefs were reasonably held. For reasons given below, no points arise under Arts 10 and 11, and none was advanced by Mr Starmer QC.

Art 5 Question (viii): did he give directions pursuant to the 1986 Act to the persons taking part in the procession or assembly?

The directions were given orally to anyone who sought to leave the cordon, and by implication from the imposition of the cordon.

The fact that none of the officers had the sections in mind is, as I have already held, immaterial. They were so taken by surprise when the procession formed and advanced that it is perhaps not surprising that they did not have s.12 in mind. But Mr French certainly did have s.11 in mind, because it is to that that he was referring when he described the procession as unlawful in his Decision Log.

Art 5 Question (ix): did such directions impose conditions (a) prohibiting the procession from entering any public place specified in the directions, including conditions as to the route of the procession, or (b) 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?

The answer is clearly Yes. 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.

Art 5 Question (x): did those directions appear to him to be necessary to prevent such disorder, damage, disruption or intimidation?

Again the answer is clearly Yes. And I find that the police had reasonable grounds to take this view.

False imprisonment Question (i): Did the containment amount to imprisonment?

There is no dispute that the answer is Yes.

False imprisonment Questions (ii) to (iv):

See Art 5 Questions (iii) to (vi) and the Answers there given.

False imprisonment Question (v): is the containment capable of being justified under the doctrine of necessity?

For reasons already given, I have held that the defence of necessity is available to a claim for false imprisonment. I have also held that one of the reasons for which the police took the contested actions was to prevent serious injury, and possible death, to persons for whom they were responsible, including police officers, members of the crowd and third parties, as well as to protect property.

The need to take this action at 2pm did not arise out of any negligence on their part. It was not due to any negligence, for reasons I have given, that the crowd were able to proceed up Regent Street and into Oxford Circus.

The Claimants, as members of the crowd, would, if not subject to police control, have presented as much of an innocent threat to other members of the crowd as every other innocent member presented to them. In practice each individual member of a crowd is likely to have few measures she can take in self-defence. But the police can take measures for the protection of everyone, and a likely measure, involving minimum use of force, is to detain the crowd until dispersal can be arranged safely.

Necessity is not, of itself, an answer to why each Claimant was not released on an individual basis. But given that the absolute cordon was necessary, in the sense of providing a defence to false imprisonment, not all members of the crowd could be released on an individual basis.

False imprisonment : Questions (vi)-(x)

See Art 5 Questions (vi)-(x)

THE RESULT

The result is that both claims fail. However, in case I am wrong, and either case proceeds further, I shall set out my findings on damages.

DAMAGES

Both sides cited Thompson v Commissioner of Police for the Metropolis [1988] QB 498. That is the case in which the Court of Appeal laid down guidelines for directions to a jury on damages in cases where claimants succeeded in claims for false imprisonment against the police. There were two claims under consideration. In both the arresting officer used considerable force, and in each the jury did not believe the police officers’ evidence as to why the force had been used, and other matters as well. Both claimants suffered physical injury and the humiliation resulting from a forced arrest and detention. The circumstances are far removed from the claims in this case. The guideline direction for compensatory damages to be awarded to a person kept in custody for an hour is £500 and for a day is £3,000. The case includes all the warnings to be expected in a guideline case, to the effect that the figures are guidelines only. The appropriate figure in any given case may vary up or down in a wide bracket. Features that may aggravate damages are identified as including humiliation and oppressive behaviour. It is strongly emphasised that the total figure for damages should not exceed what the court considers is fair compensation for the injury which the claimant has in fact suffered.

I consider that the case is relevant as background material only.

There are other relevant decisions. In Re L at p475D Lord Woolf MR added:

“the tort of false imprisonment is actionable even without proof of special damage. We note the observations of Lord Griffiths in Murray v. Ministry of Defence [1988] 1 W.L.R. 692, 703 that a person who is unaware that he has been imprisoned and who has suffered no harm can normally expect to recover nominal damages only”.

In Re L the decision of the Court of Appeal was reversed, but not on a point material to the above citation.

Damages under the HRA are awarded on different principles from those awarded at common law: Anufrijeva and Another v London Borough of Southwark [2003] EWCA Civ 1406. Art 5(3) provides:

The Court of Appeal said this at paras 63-65:

In HL v UK Application no. 45508/99 the Strasbourg Court awarded no compensation, on the ground that its findings of violation constituted in themselves sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. In this it followed the principle that compensation for distress could be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the guarantees of Articles 5(3) and (4) and, further, confirmed that it would not speculate as to whether or not the applicant would have been detained if there had been no violation of the Convention (paras 148-150).

In Steel the Strasbourg Court awarded £500 each to the three successful applicants who had been arrested and imprisoned for seven hours.

In Al Fayed v Commissioner of Police for the Metropolis [2004] EWCA Civ 1579 considered a case where the arrest was not accompanied by objectionable features and was described as little more than symbolic in the sense that the claimants had volunteered to be questioned without being arrested: para 102. At para 106 the Court considered what the damages should have been had the claim not failed. The Court said that for less than an hour’s questioning in the police station damages would have been very small, given that they would have submitted to the questioning in any event.

For the Claimants Mr Starmer QC submits that compensatory damages should be in the bracket £1,000 to £1,500. He submits there are aggravating features, namely (1) the distress and inconvenience caused to the Claimants by their containment, including the conditions of containment and the weather; (2) the particular reasons why each of them should have been released; (3) in Mr Saxby’s case that he was merely a bystander. A figure of £1,000 to £3,000 is suggested as appropriate for the aggravated damages. The total, it is submitted, should be £2,000 to £4,500.

Mr Beggs submits that Ms Austin should be awarded only nominal damages, in a bracket of £1 to £500. He submits that she first knew that she was being detained against her will from about 3pm, making the relevant period of detention six hours. He points out that when she was released she was in no hurry to go home. He relies on a number of factors which he submits should reduce any award. As I have found, she willingly took the risk of a threat of violence, or actual violence, on the part of other demonstrators with whom she chose to be present, and her own conduct was unreasonable in obstructing the highway. He relies on the fact, as I have found it to be, that she was not much distressed, but was stimulated by the event. She performed a role which attracted praise. She was throughout in the company of friends.

There is a further factor which is relevant. The root cause of what happened was not the actions of the police, but those of other demonstrators who refused to co-operate with the police. In this they are to be distinguished from organisers (including Ms Austin) of other events, who normally do co-operate with the police. The Claimants have little to say by way criticism of anyone but the police. Lord Scarman said in para 117 of his Report:

“The law assumes the existence of a tolerant and self-disciplined society. The law requires of the citizen as the necessary condition for the exercise of his rights that he respects the rights of others, even though he may fundamentally disagree with them and totally disapprove of their policies. On 15 June, failure to respect the rights of others, which some carried to the lengths of an aggressive determination to frustrate the rights of others, was the reason for the violence in Red Lion Square”.

The choice of language shows that Lord Scarman had in mind the principles of human rights. Today such a statement would make more explicit reference to human rights texts. One of the most celebrated demonstrations in modern times was the march on the Bastille fortress (and prison) in Paris on 14^th July 1789. This breakdown in public order is commemorated with pride each year because of its association with the Declaration of the Rights of Man and of Citizens made the following month. The motto of the French Republic is the shortest and one of the best known human rights texts: Liberté Egalité Fraternité. The third word can be translated as solidarity, or mutual respect and co-operation. Without it human rights are unworkable. It is expressed in Arts 10(2) and 11(2) of the Convention (which Lord Scarman echoed with his reference to the rights of others). It is also in the Universal Declaration of Human Rights 1948 art 29(1) which reads: “Everyone has duties to the community in which alone the free and full development of his personality is possible”. No one has an absolute right to protest, as Ms Austin contends.

Fortunately the consequences of MD01 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.

The reaction of reasonable people to misfortunes such as this is not a sense of humiliation, and mistrust of the police, but of resignation, and relief that the situation has not turned out to be worse. The expressions on the faces of those shown on the videos being released at 7pm and later on MD01 include many which appear to show this reaction. There is little sign of distress or ill humour, and many appeared good humoured. These images are of people who are being searched, who might be expected to show more frustration at this additional delay than others, such as the Claimants, who were not searched. The picture of Mr Saxby being released does show him looking tired.

If either Claimant were entitled to damages for false imprisonment, then in my view the appropriate awards would be, in the case of Ms Austin, nominal damages of £5, and in the case of Mr Saxby £100. I would award nothing by way of aggravated damages, and nothing by way of exemplary damages.

As to damages for breach of Art 5, if they fell to be assessed separately, I would award nothing, in the light of the guidance expressed by the Court of Appeal in Anufrijeva. If the claim had succeeded, the judgment would have expressed the respects in which there had been a breach of Art 5, and it might have included a declaration to that effect. It is only the clarification of the law that could justify the great expenditure of public resources on both sides in the conduct of this case (assuming such clarification is needed). The thoroughness with which the case has been conducted on both sides would not have been proportionate to any award of damage that I would regard as within the range of possible awards. In accordance with HRA s.8 I would not be satisfied that an award of compensation is necessary to afford just satisfaction.

FREEDOM OF EXPRESSION AND OF ASSEMBLY

Provisions of the law relating to freedom of assembly and of speech, which were in force in May 2001, included the Human Rights Act 1998. The Convention rights are set out in the Schedule and include:

Mr Saxby claims no interference with his rights of freedom of expression or assembly, because he was not wishing to exercise either right that day.

Ms Austin did claim that her rights were infringed, but as the case was presented in court, it was accepted on her behalf that these claims added nothing to her claim for infringement of her liberty. As Mr Starmer QC explained it, whichever party succeeded, Arts 10 and 11 would not provide a defence to the Commissioner, if he had no other, and would not provide a means by which Ms Austin might be able to defeat any defence to the Art 5 claim that the Commissioner might have. If the measures taken by the police were not an interference with Art 5 rights, they would be highly likely to be justified under Arts 10(2) and 11(2).

In any event, on the facts I have found, Ms Austin did not herself suffer any interference with her Art 10 and 11 rights. She joined the crowd that was at the World Bank office in Haymarket, and went with it to Oxford Circus. Between 2pm and 3.30pm she made speeches through a megaphone on political topics. She did not say that there was anything that she wanted to do in that period which she was prevented from doing. She had then planned to go to collect her baby and take no further part in any demonstration. So she in fact enjoyed all the opportunities which she wanted to enjoy to exercise her rights of freedom of speech and assembly. She was not prevented in any way from exercising those rights as she had wished.

After she was refused permission to leave Oxford Circus, Ms Austin continued to exercise those rights. She made speeches through her megaphone giving advice and comfort to the crowd around her.

Ms Austin’s real concern under this head had been not that her own rights had been interfered with, but that the rights of others were infringed. As she had said in her witness statement, but did not pursue at trial, “I believe the tactics of the police were designed to prevent legitimate protest.”

On the unusual facts of this case, I find that rights of freedom of speech and of assembly have not in fact been interfered with. None of the organisers gave evidence. None of the witnesses who gave evidence was able to explain to me what the purpose of the procession to Oxford Circus was, or what it was proposed should have happened either there, or anywhere else, if the police cordon had not been imposed. Ms Austin was invited by Mr Beggs to say what she thought the organisers’ publications might have meant, and she speculated that they might have intended harmless stunts of one kind or another in Oxford Street. But this was only speculation, and is hard to reconcile with what the crowds in fact did. In any event, I find that the interpretation of the literature is on the balance of probabilities that what was intended at least by a substantial minority of people present was some form of disorderly and criminal activity, probably including some public order offences such as affray, criminal damage and theft, such as in fact occurred later in the evening in Tottenham Court Road. So if there had been no cordon, it would in practice have been impossible for those (if any) intending lawful stunts, in fact to have had an opportunity of carrying them out. It would probably have been impossible in the environment of disorder that would probably have prevailed.

There is no evidence that anyone at Oxford Circus intended to exercise any rights of speech that they did not in fact exercise. No one gave evidence that they wished to proceed from Oxford Circus to assemble or to exercise any right of freedom of expression in any other place. The only person in respect of whom there is evidence of an intention to exercise freedom of expression is Ms Austin herself. Nothing prevented her or anyone else from making speeches at Oxford Circus.

It is, of course true that demonstrators who physically impede the activities of other persons, such as shops, of which the demonstrators disapprove, may be exercising their right to freedom of expression, even if not verbally (Steel v UK para 92). But in the absence of any evidence from any organiser or demonstrator of what it was that it was proposed to do in Oxford Circus, or after they had left it, and given the somewhat sinister ambiguity of the literature, the evidence I have seen and heard in this case has not satisfied me on the balance of probabilities that any activity that would have taken place after the arrival of the crowd at Oxford Circus at 2pm would have been an activity, still less speech, that would amount to an exercise of the right to freedom of expression which is protected by Art 11.

It is important to stress that no case was advanced at the trial to the effect that the police were adopting tactics designed to interfere with rights of assembly and freedom of speech. If such a case had been advanced and proved then the position might have been different: see Gillan in the Court of Appeal para 48.

So this case is about the right to liberty, and public order, and not about freedom of speech or freedom of assembly.