Austin v Commissioner of Police of the Metropolis [2009] UKHL 5

(1) The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not one of nature or substance; it is highly sensitive to the facts of each case. (2) Where the purpose of the measure is relevant, it must be to enable a balance to be struck between what the restriction seeks to achieve and the interests of the individual; there is room, even in the case of fundamental rights, for a pragmatic approach which takes full account of all the circumstances; however, in general, purpose is relevant, not to whether the Article 5 threshold is crossed, but to justification under 5(1)(a) to (e). (3) Measures of crowd control will fall outside the ambit of Article 5 so long as they are not arbitrary, i.e. they must be resorted to in good faith, they must be proportionate, and they must not be enforced for longer than is reasonably necessary; the confinement by the police of the claimant for seven hours in Oxford Circus in order to avoid physical injuries and property damage therefore did not engage Article 5; if Article 5 had been engaged then the deprivation of liberty could not have been justified under Article 5(1)(a) to (e) for each individual in the crowd.

Related judgments

Austin v UK 39692/09 [2012] ECHR 459, [2012] MHLO 22


The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  


POLICE — Powers — Breach of peace — Police imposing cordon around demonstrators and preventing them from leaving for many hours — Whether breach of right to liberty — Human Rights Act 1998, Sch 1, Pt I, art 5


Demonstrators who had been confined within a police cordon for several hours did not suffer a violation of their right to liberty guaranteed by art 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to the Human Rights Act 1998 if the cordon was part of the crowd control measures adopted by the police in order to prevent a breach of public order, and the measures were not arbitrary but were resorted to in good faith, were proportionate and were enforced for no longer than was reasonably necessary.

The House of Lords so held, dismissing an appeal by the claimant, Lois Austin, from a decision of the Court of Appeal (Sir Anthony Clarke MR, Sir Igor Judge P and Lloyd LJ) on 15 October 2007 [2007] EWCA Civ 989M; [2008] QB 660B dismissing the claimant’s appeal from a decision of Tugendhat J who on 23 March 2005 dismissed the claimant’s action against the Commissioner of Police of the Metropolis seeking damages for false imprisonment and breach of the right to liberty guaranteed by article 5 of the Convention.

LORD HOPE OF CRAIGHEAD said that on 1 May 2001 a crowd of demonstrators marched into Oxford Circus from Regent Street South and were joined later by others who entered or tried to enter Oxford Circus from all directions. The claimant was one of those who went to demonstrate but was not one of the organisers. She was prevented from leaving the area by a police cordon for about seven hours. The organisers’ literature included incitement to looting and violence, multiple protests to avoid the police and the encouragement of secrecy. The police decided that if they were to prevent violence and the risk of injury to persons and damage to property, they had no alternative but to impose an absolute cordon round the entire crowd that had gathered there. The object was not to hold the crowd for any reason other than to carry out a controlled release as soon as it was practicable and safe to do so. In the event the dispersal was not completed until 9.30 pm. The application of art 5(1) to measures of crowd control did not appear to have been brought to the attention of the European Court of Human Rights in Strasbourg. There was room, even in the case of fundamental rights as to whose application no restriction or limitation was permitted by the Convention, for a pragmatic approach which took full account of all the circumstances. No reference was made in art 5 to the interests of public safety or the protection of public order as one of the cases in which a person might be deprived of his liberty. But the importance that must be attached in the context of art 5 to measures taken in the interests of public safety was indicated by art 2, as the lives of persons affected by mob violence might be at risk if measures of crowd control could not be adopted by the police. The ambit that was given to art 5 as to measures of crowd control must, of course, take account of the rights of the individual as well as the interests of the community. So any steps taken must be resorted to in good faith and must be proportionate to the situation which had made the measures necessary. That was essential to preserve the fundamental principle that anything that was done which affected a person’s liberty must not be arbitrary. If those requirements were met it would be proper to conclude that measures of crowd control undertaken in the interests of the community would not infringe the art 5 rights of individual members of the crowd whose freedom of movement was restricted. Crowd control measures would fall outside the application of art 5 if they were resorted to in good faith, were proportionate and were enforced for no longer than was reasonably necessary. The restriction on the claimant’s liberty that resulted from being confined within the police cordon met those criteria. It was not the kind of arbitrary deprivation of liberty that was proscribed by the Convention so art 5 was not applicable.

LORD SCOTT, LORD WALKER, LORD CARSWELL and LORD NEUBERGER delivered concurring speeches.


Austin v Commissioner of Police of the Metropolis [2009] UKHL 5B; [2009] WLR (D) 26

HL(E): Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Carswell, Lord Neuberger of Abbotsbury: 28 January 2009

Appearances: Heather Williams QC and Phillippa Kaufman (Christian Khan) for the claimant; David Pannick QC and John Beggs (Director of Legal Services, Metropolitan Police Service) for the commissioner.

Reported by: Shirani Herbert, barrister

External links

Metropolitan police's 'kettling' tactic challenged in European court, Guardian, 19/7/09

Trapped protester ruling may be referred to Court of Human Rights, Solicitors Journal, 3/2/09


ICLR report - [2009] WLR (D) 26