Court of Appeal
Published October 29, 2007
Austin and Another v Commissioner of Police of the Metropolis
Before Sir Anthony Clarke, Master of the Rolls, Sir Igor Judge, President, and Lord Justice Lloyd
Judgment October 15, 2007

It was lawful only in extreme and exceptional circumstances for the police to contain demonstrators and members of the public caught up in that demonstration who themselves did not appear to be about to commit a breach of the peace. Containment was lawful only where it was necessary to prevent others from committing an imminent breach of the peace and there was no other way to achieve that.

The Court of Appeal so held, dismissing the appeal of the claimants, Lois Austin and Geoffrey Saxby, against the dismissal by Mr Justice Tugendhat (The Times April 14, 2005) of their action against the Commissioner of Police of the Metropolis for, inter alia, damages for false imprisonment and deprivation of liberty arising out of events at Oxford Circus, London on May Day 2001.

Mr Keir Starmer, QC and Ms Phillippa Kaufmann for the claimants; Mr David Pannick, QC, Mr John Beggs, Mr George Thomas and Ms Amy Street for the commissioner.

THE MASTER OF THE ROLLS, giving the judgment of the court, said that the claimants claimed under common law and section 7 of the Human Rights Act 1998 for unlawful detention contrary to article 5 of the European Convention on Human Rights. The judge rejected their claims under both heads.

Ms Austin came to take part in the demonstration on May Day 2001. By contrast Mr Saxby came to London on his employer’s business and was caught up in the events of the day. Neither of them acted other than lawfully throughout.

Both were detained within the cordon at Oxford Circus for many hours. After their requests to leave had been refused by individual police officers, neither made any attempt to break through the police cordon.

There was an interference with the claimants’ liberty which amounted to the tort of false imprisonment unless it was lawful. A threshold test of imminence had to be passed before action could be taken to prevent a breach of the peace and once the test of imminence was passed, action which was both reasonably necessary and proportionate to prevent a breach of the peace could be taken: see R (Laporte) v Chief Constable of Gloucester-shire Constabulary ( The Times December 14, 2006; [2007] 2 AC 105).

The court concluded that in this very exceptional case, on the basis of the judge’s finding that what the police did in containing the crowd was necessary in order to avoid an imminent breach of the peace, the actions of the police were lawful at common law, even though the police did not reasonably suspect that the individual claimants were about to commit a breach of the peace.

The police had no alternative but to ask all those in Oxford Circus to remain inside the cordon. The claimants’ containment was lawful because it was necessary to prevent an imminent breach of the peace by others.

That was a test of necessity which could only be justified in truly extreme and exceptional circumstances. The action taken had in addition to be both proportionate and reasonably necessary.

Those tests, derived from O’Kelly v Harvey ((1883) 14 LR Ir 105) and Laporte, were satisfied on the findings of fact made by the judge, with which the court could not interfere.

The Strasbourg cases on article 5 of the Human Rights Convention had drawn a distinction between a restriction of liberty of movement as opposed to a deprivation of liberty: see Guzzardi v Italy (Application No 7367/76) ((1980) 3 EHRR 333).

Mere restrictions on liberty were governed by article 2 of Protocol 4, not by article 5 of the Convention. The difference between the two was merely one of degree or intensity, not one of nature or substance. The United Kingdom had not ratified article 2 of Protocol 4. Its provisions were not part of the law of England and Wales.

On the judge's findings of fact the police had no alternative but to impose the cordon which they did. The police had a good defence to the claims in false imprisonment and unlawful detention.

Solicitors: Christian Khan; Mr Edward Solomons, Victoria.

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