Police powers : Article 5 ECHR and crowd control

The recent House of Lords decision in Austin v Commissioner of Police of the Metropolis [2009] UKHL 5 raises issues relating to crowd control, public order and Article 5(1) ECHR. Of particular interest is the use of the novel „purpose principle‟ in relation to Article 5. The case arose from crowd control and public order measures imposed on May Day 2001 following a number of anti-capitalism and anti-globalisation demonstrations in central London. Similar events in the previous two years had led to serious breakdowns in public order and the police, fearing a repeat of those events, deployed around 6,000 officers on the streets of London. The police were aware that demonstrations were going to take place but did not know details, the organisers having refused to cooperate with them. A large crowd converged on Oxford Circus around 14:00 and the police decided to place an absolute cordon around Oxford Circus to prevent violence and avoid personal injury or damage to property, with the intention of a controlled dispersal thereafter. The police informed the crowd of some 3,000 people that they were being contained to prevent a breach of the peace at 16:00. They began a controlled dispersal on a number of occasions but had to suspend it each time because of the conduct of protesters within the cordon, two-fifths of whom were actively hostile, with some throwing missiles and pushing, in addition to the conduct of protesters outside the cordon. Excepting individual releases totalling around 400 people, dispersal was not completed until 21:30. The situation was described as „dynamic, chaotic and confusing‟ and, although there was no crushing, the weather was cold and wet and there was no access to toilet facilities or shelter nor was any food or water provided (Austin v Commissioner of Police of the Metropolis [2009] UKHL 5 [6]). Both appellants were caught within the cordon. One had attended the demonstration, the other was an „innocent bystander‟. At first instance the judge held that there had been a deprivation of liberty but that it was justified under Article 5(1)(c) as necessary to maintain public order (Austin v Commissioner of Police of the Metropolis [2005] EWHC (QB) 480). The Court of Appeal, dismissing the appeal, held that the circumstances did not constitute a deprivation of liberty within Article 5(1) and while they could constitute false imprisonment the action was justified as a lawful exercise of police power ([2007] EWCA Civ 989). The appeal to the House of Lords was on narrower terms, arguing solely that the Court of Appeal had been incorrect to assert that the appellant‟s rights under Article 5(1) were not infringed (Austin [2009] UKHL 5)