Kettling: Can a public interest motive justify a deprivation of liberty or not? – Robert Wastell
2 April 2012
Austin & Others v. The United Kingdom,  ECHR 459, 15th March 2012 – read judgment
The Grand Chamber of the ECtHR recently tackled the question of whether the police tactic of “kettling” (verb, UK, of the police – to contain demonstrators in a confined area) amounted to a deprivation of the liberty of four applicants within the meaning of Article 5(1) of the ECHR.
The facts of this case reveal a clash of perspectives between private and public interests. However, as the applicants argued, the deprivation of liberty cannot be justified by a wider public interest motive.
The four applicants were caught up in the police cordon in London during protests on 1st May 2001. One was a protestor, one was out shopping and the other two were workers on their lunch break. They were each held for between 5½ and 7 hours without access to food or water or toilets. One needed to collect her daughter from the crèche at 4:30pm. She could not leave the cordon until 9:30pm.
The police planning for May Day 2001 was based on experience gained from earlier demonstrations where there had been serious breakdowns in public order. Intelligence identified that activists intended to stage protests across the city culminating in a rally at Oxford Circus at 4pm with up to 1,000 hardcore demonstrators looking for confrontation and violence. The police assessment was that the protest would involve one of the most serious threats to public order ever seen in London. As a result they decided that, if they were to prevent violence, damage to property and the risk of injury, including to those within the cordon, there was no alternative but to impose, an absolute cordon at 2pm. There was no alternative.
During the afternoon the police made attempts to begin collective release but violence and uncooperative behaviour of a minority led them to suspend dispersal until 9:30pm. The Court of Appeal noted that during the whole period there was very considerable violence, although not by the applicants, and that this was not a static crowd of protesters but “a dynamic, chaotic, and confusing situation in which there were also a large number of other protesters in the immediate vicinity outside the cordon who were threatening serious disorder and posing a threat to officer both on the cordon and within it.”
The judge at first instance concluded that the containment within the cordon amounted to deprivation of liberty within the meaning of Article 5(1) but held that it was justified within one of the six specified purposes within Article 5(1)(a) to (f). The Court of Appeal and the House of Lords disagreed and concluded that it was not a deprivation of liberty, but the House of Lords noted that, if it had been a deprivation of liberty, there was no justification under Article 5(1)(a) to (f).
The arguments before the Court in Strasbourg represented a clash of principle. The UK argued that it was inherent in the Convention that a fair balance should be struck between the interests of the community and the protection of rights of the individual that should be taken into account when determining whether there had been a deprivation of liberty. The purpose for which a measure was imposed was a relevant factor and could weigh against the Court finding a deprivation of liberty, even where there was a physical confinement in a specific place for a lengthy period. The objective of Article 5 was to prevent arbitrary and unjustified detention after all. Hence, whether the length of time for which the cordon was imposed deprived those confined of their liberty depended on all the circumstances, including the purpose and necessity of the cordon.
By contrast the applicants argued that whether there was a deprivation of liberty should be evaluated by reference to certain objective factors and the intention or purpose of the measure was irrelevant (aside from determining whether one of the justifications within Article 5(1)(a) to (f), which should be narrowly construed, was made out). The Convention already strikes a fair balance and public authorities are not free to weigh up competing public interest considerations in order to narrow the scope of its protection.
The Strasbourg Court’s reasoning
The Grand Chamber resolved these rival submissions in favour of the UK. However, whilst an apparent conflict of high principle, ultimately its conclusion depended upon the judges’ evaluation of the merits of the police’s tactics whist the joint dissenting opinion (including that of the President) ultimately reflected a different opinion of the merits of such tactics. Hence, the majority commented that:
It is important to note, therefore, that the measure was imposed to isolate and contain a large crown, in volatile and dangerous conditions. As the Government pointed out…the police decided to make use of a measure of containment to control the crowd, rather than having to resort to more robust methods, which might have given rise to a greater risk of injury to people within the crowd…The Court finds no reason to depart from the judge’s conclusion that in the circumstances the imposition of an absolute cordon was the least intrusive and most effective means to be applied.
Whereas, even though the first instance judge’s conclusions on the facts were not challenged, the dissenting voices considered that:
…the police could have been expected to apply less intrusive means. As it was, it seems that all people who happened to be at Oxford Circus at around 2pm were treated like objects and were forced to remain there as long as the police had not solved other problems around the city.
The majority agreed that consideration of whether there has been deprivation of liberty within the meaning Article 5(1) starts with analysis of the “concrete situation” of the individual set against a range of criteria including type, duration, effects and manner of implementation of the measure in question. The purpose behind the measure had not previously been considered in Strasbourg case-law and they held that an underlying public interest motive has no bearing on whether there has been a deprivation of liberty, save in relation to any justification under Article 5(1)(a) to (f).
However, the Court considered that the requirement to take account of the “type” or “manner of implementation” of the measure enabled it to have regard to the surrounding context and circumstances of the purported deprivation in non imprisonment cases: “the context in which an action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good.”
They did not exclude that crowd control techniques, including kettling, could give rise to a breach of Article 5(1), but held that the right to liberty had to be interpreted in the specific context in which the techniques are deployed, “as well as the responsibilities of the police to fulfil their duties of maintaining order and protecting the public…” They did not consider that the applicants’ reasons for being in Oxford Circus were relevant but agreed that the cordon’s coercive nature; its duration and its effects on the applicants pointed towards a deprivation. However, in circumstances where the police kept the situation under close review, but where substantially the same dangerous conditions which necessitated the cordon at 2pm continued to exist throughout the afternoon and early evening, those within the cordon cannot be said to have been deprived of their liberty within the meaning of Article 5(1).
It is not difficult to see why there were dissenting voices. Whilst emphasising that the purpose of the measure or its underlying public interest motive had no bearing on the question of whether there had been a deprivation of liberty, that is exactly what the Court considers. It permits the context and “specific and exceptional facts of this case” to be imported into the evaluation criteria. That was not unintended. Placing a restriction on the police in these circumstances does not appear to have sat comfortably with the majority. By emphasising that the Convention is a living instrument which should be internally harmonious, they allowed context and justification to enter into the assessment. However, by stressing that this was an exceptional case, the Court reserved the right to reject similar arguments by public authorities in other non-paradigm cases, where they do not consider that the end justifies the means.
In reality, whilst this judgment extends the potential for the justification of containment in non-paradigm cases, it is highly fact specific. The rival opinions probably mark a division in libertarian values, perhaps in the true sense of the word. For me, I say it all depends on the facts.
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I think this rather underplays the wider jurisprudential significance on Art 5 case-law of the reasoning of the majority – effectively reading, for the first time, purpose, if not proportionality, into the definitional criteria of what it means when we use the term “depriving of liberty”. Not only was there no licence for that, it flies in the face of recent ECHR case law such as A v UK (highlighted by the three judges in the minority) in which exactly that sort of argument was rejected. This is aside from the faulty and acontextual analogies drawn by both the UK courts and at Strasbourg (football fans and motorway hold-ups): see my post on the UKCLG and UKSC blogs
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