GRAND CHAMBER
 
 
 
 
 
 
 
CASE OF AUSTIN AND OTHERS v. THE UNITED KINGDOM
 
(Applications nos. 39692/09, 40713/09 and 41008/09)
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
15 March 2012
 
 
 

In the case of Austin and Others v. the United Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
 Françoise Tulkens, President,
 Nicolas Bratza,
 Jean-Paul Costa,
 Josep Casadevall,
 Nina Vajić,
 Dean Spielmann,
 Lech Garlicki,
 Ineta Ziemele,
 Päivi Hirvelä,
 Giorgio Malinverni,
 Luis López Guerra,
 Ledi Bianku,
 Kristina Pardalos,
 Ganna Yudkivska,
 Vincent A. De Gaetano,
 Angelika Nußberger,
 Erik Møse, judges,
and Michael O’Boyle, Deputy Registrar,
Having deliberated in private on 14 September 2011 and 15 February 2012,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in one application (no. 39692/09) lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Ms Lois Amelia Austin (“the first applicant”), on 17 July 2009; one application (no. 40713/09) lodged by a dual Greek/Australian national, Mr George Black (“the second applicant”) on 27 July 2009; and one application (no. 41008/09) lodged by a dual British/Australian national, Ms Bronwyn Lowenthal (“the third applicant”) and a British national, Mr Peter O’Shea (“the fourth applicant”), on 27 July 2009. All three applications were brought against the United Kingdom of Great Britain and Northern Ireland. 2. The first applicant was represented before the Court by Ms L. Christian, Ms K. Craig, Ms H. Williams QC and Ms P. Kaufmann. The second applicant was represented by Mr J. Welch. The third and fourth applicants were represented by Mr B. Emmerson QC, Mr M. Fordham QC, Mr A. Bailin and Mr J. Halford. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger, Foreign and Commonwealth Office. 3. The applicants complained that their restriction within a police cordon (a measure known as “kettling”) for up to seven hours during the course of a demonstration in central London amounted to a deprivation of their liberty in breach of Article 5 § 1 of the Convention. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 21 September 2010 the Court decided to join the applications and communicate them to the Government. It also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). On 12 April 2011 the Chamber decided to relinquish jurisdiction to the Grand Chamber. 5. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. 6. The applicants and the Government each filed a memorial on the admissibility and merits. 7. A hearing took place in public in the Human Rights Building, Strasbourg, on 14 September 2011 (Rule 59 § 3). There appeared before the Court:
(a)  for the Government
Mr J. Grainger,  Agent,
Mr D. Pannick QC,
Mr J. Segan,  Counsel,
Mr C. Papaleontiou,
Ms M. Purdasy,  Advisers;
 
(b)  for the applicants
Mr B. Emmerson QC,
Ms P. Kaufmann QC,
Ms A. Macdonald,
Mr I. Steele, Counsel,
Ms K. Craig,
Mr J. Halford,
Mr J. Welch, Advisers,
Ms L.A. Austin,
Mr G. Black,
Ms B. Lowenthal, Applicants. The Court heard addresses by Mr Pannick, Ms Kaufmann and Mr Emmerson. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The first applicant was born in 1969 and lives in Basildon; the second applicant was born in 1949 and lives in London; the third applicant was born in 1972 and lives in London; and the fourth applicant was born in 1963 and lives in Wembley. 9. The facts of the case may be summarised as follows. A. The applicants’ accounts of what happened to them on 1 May 2001
10. On 1 May 2001, during a demonstration in central London, the applicants were contained within a police cordon at Oxford Circus (the junction between Regent Street and Oxford Street). 11. The first applicant, Ms Lois Austin, is a member of the Socialist Party and had been on many demonstrations, including previous May Day demonstrations. On 1 May 2001 she left her 11-month-old daughter at a crèche, planning to collect her at 4.30 p.m., and travelled from Essex to central London with her partner. They attended a protest against globalisation outside the World Bank before walking with other protesters to Oxford Circus, arriving at about 2 p.m. Around 3.45 p.m. Ms Austin needed to leave the demonstration to collect her daughter from the crèche. She explained her situation to two police officers maintaining the cordon but was told that she could not leave and that it was not known how long it would be before she would be able to leave the area. Ms Austin therefore arranged for a friend to collect the child from the crèche. She was finally allowed to leave at about 9.30 p.m. 12. Between 2 and 2.30 p.m. on 1 May 2001, the second applicant attempted to cross Oxford Circus to go to a bookshop on Oxford Street. He was told by a police officer that he could not walk down Oxford Street because of the approaching crowd of demonstrators and was advised to take Margaret Street, a parallel road to the north. The applicant followed this advice but between Margaret Street and Regent Street he was met by a wall of riot police with shields and helmets moving south. The applicant was forced into Oxford Circus at about 2.30 p.m. He immediately asked to be allowed out of the cordon and was informed that there was an exit for non‑protesters at the Bond Street side of Oxford Circus; when he went there he was told that there was no exit. The applicant was not able to exit the cordon until 9.20 p.m. 13. The third applicant had no connection with the demonstration. She worked in the Oxford Circus area and was on her lunch break at 2.10 p.m. when she was prevented from returning to her workplace by a line of police officers blocking the road. She turned and tried to pass in another direction but found that that exit was also now blocked by police officers, who began to advance towards her. She was held within the cordon at Oxford Circus until 9.35 p.m. She and others repeatedly requested to be allowed to leave the cordoned area but was told by the policemen she approached that they were under orders to allow no one to pass. 14. The fourth applicant also worked in the Oxford Circus area and was also caught up in the cordon while walking through Oxford Circus on his lunch break. He was able to leave at approximately 8 p.m. B. The domestic proceedings
1. The High Court
15. Following the events on 1 May 2001, approximately 150 people who had been confined in Oxford Circus contacted various firms of solicitors with the intention of commencing proceedings. The various potential applicants, their legal representatives and the representatives of the Metropolitan Police entered into correspondence with a view to progressing the claims in an efficient manner. It was agreed that the first applicant and Mr Geoffrey Saxby, who was a passer-by caught up in the cordon, would act as “test” claimants. They commenced proceedings in the High Court, claiming damages for false imprisonment and under the Human Rights Act 1998 for breach of the right to liberty guaranteed by Article 5 of the Convention. The first applicant also initially advanced a claim for interference with her rights of freedom of expression and assembly contrary to Articles 10 and 11 of the Convention, but she subsequently abandoned these claims. The Metropolitan Police provided undertakings to the legal representatives of the other claimants (including the second, third and fourth applicants) that they would not raise any limitation argument if they brought claims in the domestic courts after the test case had been determined. (a)  The facts as found by Mr Justice Tugendhat
16. The hearing in the High Court before Tugendhat J lasted three weeks, including six days of oral evidence. He considered live evidence from 18 lay witnesses and two experts, statements from a further 138 witnesses, thousands of pages of documentary evidence and video footage from hand-held and security cameras and police helicopters. In his judgment, delivered on 23 March 2005 ([2005] EWHC 480 (QB)), Tugendhat J devoted 500 paragraphs to his assessment of the evidence and findings of fact. His factual findings can be summarised as follows. 17. Tugendhat J found that on 18 June and 30 November 1999 and May Day 2000 there had occurred very serious breakdowns in public order in London, which the police feared would be repeated in 2001. The theme of all three demonstrations was protest against capitalism and globalisation. The organisers of the event on 18 June 1999 had failed to cooperate with the police and had distributed publicity material similar to that distributed by the organisers of the May Day 2001 demonstration. During the afternoon of 18 June 1999 a crowd of some 3,000 to 5,000 people, wearing masks, caused approximately 2 million pounds sterling worth of damage and injury to members of the public and police officers, eleven of whom required hospital treatment. Demonstrations on these themes had also resulted in 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 to 13 September 2000 (World Economic Forum Asia Pacific summit), in Prague on 26 September 2000 (another International Monetary Fund meeting), and on 22 April 2001 in Quebec (a Summit of the Americas meeting). The planning for May Day 2001 reflected experience at these and earlier demonstrations, particularly in London, and recommendations made in the light of them. 18. For 1 May 2001, two events had been notified to the police, namely a trade-union May Day March and Rally and a Young Socialist Students March, taking place in different parts of London. In addition, intelligence indicated that activists representing a broad coalition of environmentalist, anarchist and left-wing protest groups intended to stage various protests at twenty-four locations across London based on the squares of “Monopoly”, a board‑game. The final event was to be a rally at Oxford Circus at 4 p.m. The organisers of the “May Day Monopoly” protest did not make any contact with the police, nor attempt to seek authorisation for the demonstrations, and attempted to maintain secrecy about the locations and nature of the protest. Protesters were directly and indirectly encouraged to wear masks and to engage in looting and violence (see Tugendhat J’s judgment, §§ 206‑25). The intelligence available to the Police Special Branch was that there would be “500 to 1,000 hard-core demonstrators looking for confrontation, violence and to cause public disorder”. The Special Branch assessment was that the protest would involve one of the most serious threats to public order ever seen in London, with a real risk of serious injury and even death, as well as damage to property, if they did not effectively control the crowd. Those at risk included members of the public, police officers and other demonstrators. On 24 April 2001 the Mayor of London wrote an article in the principal London evening newspaper, expressing the view that the organisers of the May Day protest deliberately sought to create destruction and urging Londoners to stay away. Similar warnings were reported in a number of other newspapers in March and April 2001. 19. The police plan for the day involved the deployment of nearly 6,000 officers on foot wearing high-visibility jackets, in addition to mounted police officers. At that time, this was probably the largest number of police officers that had ever been deployed in London. The policemen and women responsible for policing on May Day 2001 were the most experienced public-order officers in England. Since it was foreseen that the final event would be a gathering at Oxford Circus at 4 p.m., a speaker system was installed there. The strategic intentions of the police operation were stated as being to provide public reassurance and ensure public safety; facilitate and police all legitimate protest; prevent public disorder and protect key buildings such as Buckingham Palace and the Houses of Parliament; prevent crime and take all reasonable steps to apprehend offenders if crime was committed; and generally minimise disruption. However, the police had little idea of what to expect or how they would react to it if and when it happened. 20. During the morning of 1 May 2001 there were a number of fairly small demonstrations across London. At around 1 p.m. demonstrators started gathering outside the offices of the World Bank in the Haymarket area. They walked towards Piccadilly Circus then up Regent Street to Oxford Circus. By 2 p.m. it was estimated that there were over 1,500 people in Oxford Circus and that more were steadily joining them. A number of people moving up Regent Street were wearing face masks. The police intelligence had indicated that the gathering at Oxford Circus was to take place at 4 p.m. and the size of the crowd there at this time took them by surprise, with insufficient officers in the area to prevent more people entering it. 21. At approximately 2 p.m. the police decided to put up a cordon to contain the crowd. The decision was based on the available intelligence, which had estimated that 500 to 1,000 individuals intent on violence would take part in the May Day protest and on what had occurred at previous similar demonstrations, rather than on the behaviour of the crowd up until that point. The decision was made in conscious exercise of common-law powers to prevent a breach of the peace. Once the decision to put in a cordon was made, it took five to ten minutes to put in a loose cordon and, as more police officers arrived, twenty to twenty-five minutes to put in a full cordon. There was sufficient space within the cordon for people to walk around and there was no crushing. Nonetheless, as the afternoon progressed, conditions became uncomfortable. The weather was cold and wet. No food or water was provided and there was no access to toilet facilities or shelter. 22. No announcement was made to the crowd when the cordon was first put in place because of police concern that it would not be strong enough to resist a concerted effort by the crowd to break through. The first announcement through the public-address system was made at 4 p.m., informing the crowd that they were being contained to prevent a breach of the peace. It was accepted by the Police Commander in evidence before the domestic courts that the announcement to the crowd could have been made earlier, perhaps at 3.15 or 3.30 p.m. 23. At 2.25 p.m., five minutes after the full cordon was put in place, the Chief Superintendent commanding the operation planned to commence a controlled release from within the cordon up Regent Street north. However, release had to be delayed when members of the crowd both within and outside the cordon started to throw missiles and use violence against the police and when there was an attempt by the crowd to break through the cordon into Regent Street. At 2.55 p.m. a dispersal north was again planned but suspended because of violence by protesters on both sides of the cordon. At around this time more people started moving towards Oxford Circus to take part in the event which had been planned to take place there at 4 p.m. By 3.40 p.m. the police situation report was that officers were sandwiched between crowds, with pushing and shoving and bottles being thrown. At 4.30 p.m. there was a crowd of between 400 and 500 people outside the cordon following a samba band, which made dispersal into Oxford Street difficult. The situation was reviewed at 4.55 p.m. but collective release was ruled out because of the risk of violence and disorder. At 5.15 p.m. there was serious disorder in Oxford Street caused by a core of about twenty-five masked protesters which attracted a crowd of several hundred. At 5.20 p.m. the crowd within the cordon was calm but the police were not willing to risk collective release because of the presence of other large, disorderly crowds nearby. 24. At 5.55 p.m. the decision was taken to disperse the crowd within the cordon. However, the crowd became violent again and at 6.15 p.m. the decision to release was reversed. At 7 p.m. release was commenced, with small groups and individuals being escorted away from the containment. However, at 7.20 p.m. the release was put on hold because of the difficulty in policing the crowds outside the cordon, some of whom were throwing large bits of masonry and burning missiles at the police, and because demonstrators released from the cordon were remaining in the vicinity. At 7.30 p.m. the collective dispersal was resumed, with additional police resources to escort those released from the cordon. However, the dispersal was soon halted again because it became apparent that those being released from Oxford Circus were joining another large crowd, which had previously been violent, to the north in Great Portland Street. By 8 p.m. Portland Place was clear and the collective release of the Oxford Circus crowd recommenced, in groups of ten. By 9.45 p.m. the dispersal was almost complete. Over 100 people were arrested as a result of the disorder in Oxford Circus and the surrounding area. It was part of the collective-release policy to search some or all of those released, take a record of their names and addresses and photograph them. 25. The police estimated that there were a maximum of 2,000 people within the cordon at the peak time and 1,000 in the crowd outside it. Analysis of the documentary and video evidence admitted at trial indicated that, over the course of the afternoon, some 392 people were released individually. It was accepted that this figure was unlikely to be accurate, but Tugendhat J found that the number of individual releases was likely to be “nearer 400 than 200”. Of these, most were from the north and south sides of Oxford Circus, with very few people being released to the east and west. Most of the recorded releases were before 4 p.m.; 12 were between 4 p.m. and 5 p.m.; 89 between 5 p.m. and 6 p.m.; 59 between 6 p.m. and 7 p.m.; and 12 individual releases after 7 p.m. It was difficult for police officers to identify members of the crowd for individual release on the basis that they posed no threat of violence. Some of those released were identified in police records as being bystanders caught up in the demonstration. Others were described as being in physical distress, pregnant women, elderly people or children. (b)  Tugendhat J’s conclusions
26. The judge concluded that, in the light of the violence which had occurred at previous demonstrations, the intelligence available to the police, the lack of cooperation from the organisers and the conduct of certain sections of the crowd, the police had reasonable grounds to believe that there was a real risk of damage to property, serious physical injury and even death. The main risks were from crushing and trampling, but there were also risks from missile throwing. Given the situation at Oxford Circus, if they were to prevent violence and injury, the police had no alternative at 2 p.m. but to impose an absolute cordon and this was, therefore, a proportionate response by the police to the presence of the crowd. The principal purpose of the containment was to ensure the safety of persons (including those within the cordon), 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. 27. From 2.20 p.m., no one in the crowd was free to leave without permission. The measure was a close confinement, with minimal liberty in Oxford Circus, and its effects were severe, increasingly so as time went by. However, it was never expected that the containment would last so long and the possibility of safely releasing the crowd was kept under review at all times. 28. It was not practicable for the police to release the crowd collectively earlier than they did. 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 addition, there were long periods during which the police did not have the resources to provide for safe dispersal, and it was not suggested that the Commissioner of the Metropolitan Police could or should have made available more police officers than he had on the streets that day. One reason the resources were inadequate was that a substantial proportion of the crowd was not cooperating with the police on the cordons around them. The judge estimated that about 40% were actively hostile at any given time, pushing and throwing missiles, and otherwise showing a lack of cooperation. Those not pushing or throwing missiles were not disassociating themselves from the smaller minority who were. As a result the cordon had to be manned by enough officers to resist a concerted push by these people to break out. A cooperative crowd could have been contained by fewer officers, leaving others available to control the dispersal. The other reason why there were insufficient resources was that other crowds outside the containment were refusing to accept control by or directions from the police. 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. According to the judge, 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 of damage to property. 29. In the circumstances that existed in Oxford Circus, and in particular the difficulty for the police to distinguish between peaceful and violent or potentially violent individuals within the cordon, the judge was unable to find any individual release policy, other than that applied, which would have been workable. Once the cordon was in place, any measure of controlled release was bound to have taken a considerable time before all of the crowd was released. It was 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 7.30 p.m., that is about one to two hours at least. 30. As regards the false-imprisonment claim, Tugendhat J held that the defence of necessity was available and that the police action was necessary. 31. In connection with Article 5, the judge found that containment within the cordon amounted to deprivation of liberty within the meaning of Article 5 § 1. Although he found that there was never an intention on the part of the police to bring everyone contained at Oxford Circus before a judge, the purpose was to contain the crowd so that the police could arrest and bring before a judge all those they reasonably considered had committed offences and those whose arrest was necessary to prevent them committing offences, and that this was sufficient for the requirements of Article 5 § 1 (c). 32. In addition, Tugendhat J found that, on the unusual facts of the case, there had been no interference with the rights of freedom of speech and assembly. None of the witnesses was able to explain 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. He found that the literature distributed in advance by the organisers was intended to encourage at least a substantial minority of those present to engage in some form of disorderly and criminal activity, probably including public-order offences such as affray, criminal damage and theft. If there had been no cordon, it would in practice have been impossible in this environment of disorder for anyone intending to carry out lawful acts of protest to do so. Moreover, there was no evidence that anyone at Oxford Circus intended to exercise any rights of speech that they did not in fact exercise. Tugendhat J therefore concluded that the case was about public order and the right to liberty, and not about freedom of speech or freedom of assembly, and he dismissed all the plaintiffs’ claims. (c)  The Court of Appeal
33. Tugendhat J granted Ms Austin and Mr Saxby leave to appeal against his findings as regards the claims for false imprisonment and under Article 5 of the Convention. In a judgment delivered on 15 October 2007 ([2007] EWCA Civ 989), the Court of Appeal dismissed the appeal. 34. In connection with the claim of false imprisonment, the Court of Appeal held that, in order to prevent a breach of the peace threatened by others, the police could lawfully take action which interfered with or curtailed the lawful exercise of the rights of innocent third parties, but only where all other possible steps had been taken to avoid a breach of the peace and to protect the rights of third parties, and where the action taken was reasonably necessary and proportionate. Applying this test, in the circumstances of the demonstration at Oxford Circus, Ms Austin’s containment was lawful because it was necessary to prevent an imminent breach of the peace by others. 35. In connection with the claim under Article 5, the Court of Appeal concluded that the detention did not amount to a deprivation of liberty. Sir Anthony Clarke MR, giving the judgment of the court, held as follows. “102.  ... [T]he first question is whether the appellants were deprived of their liberty from the outset. In our opinion they plainly were not. The position at that time was not markedly different in terms of detention from a number of different types of confinement or detention to which the judge referred which would not be regarded as a deprivation of liberty within Article 5 § 1. A good example is perhaps a football crowd. It is commonplace for such a crowd to be contained for what may turn out to be quite long periods, partly for the protection of individuals in the crowd and partly (in some cases) to avoid crowd violence, perhaps as between groups of opposing supporters ... Other examples would be ... for example where motorists are unable to leave a motorway, perhaps for many hours, because of police action following an accident. In such cases it may be necessary for police to confine individuals in particular areas for what may be much longer than originally intended. 103. In our opinion this was plainly such a case. On the judge’s findings of fact, the police had no alternative but to impose the cordon which they did. They anticipated orderly release over two or three hours in order to avoid violence. The judge identified their various purposes, which included safety and the prevention of crime by individuals in the crowd many of whom could not be identified. In these circumstances the original imposition of the cordon could not, in our judgment, properly be regarded as the kind of arbitrary detention which the Strasbourg authorities would describe as deprivation of liberty within the meaning of Article 5 § 1.

Article of the Convention at issue: Article 5
Outcome: no_violation