Last Updated on September 22, 2021 by LawEuro
FIRST SECTION
DECISION
Application no. 57884/17
Hannah EISEMAN-RENYARD against the United Kingdom
and 7 other applications
(see list appended)
The European Court of Human Rights (First Section), sitting on 5 March 2019 as a Committee composed of:
AlešPejchal, President,
Tim Eicke,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above applications lodged on 7 August 2017,
Having deliberated, decides as follows:
THE FACTS
1. The case originated in eight applications. A list of the applicants and application numbers is set out in the appendix. They are represented by Mr Michael Oswald of Bhatt Murphy Solicitors, a lawyer practising in London.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The background facts
3. All of the eight applicants live in London.
4. The wedding of the Duke and Duchess of Cambridge on 29 April 2011 attracted public interest nationally and internationally. The police were aware that on the day of the wedding a large number of members of the Royal Family, foreign royalty and other heads of state would be moving around London and that thousands of citizens were expected to arrive in central London to take part in the day’s celebrations.
5. In the build-up to the royal wedding, the police had received intelligence that activities aimed at disrupting the celebrations were being planned through social media. The threat level from international terrorism at the time was assessed as severe, meaning that an attempted attack was thought to be highly likely.
6. The eight applicants were arrested at various places in central London to prevent an imminent breach of the peace. They were taken to different police stations and released without charge later the same day once the wedding was over and the police considered that the risk of a breach of the peace had passed. Their periods of custody ranged from about two and a half to five and a half hours.
2. The eight applicants
(a) The Republican
7. Brian Hicks, the second applicant, had a long-standing involvement in republican politics. He had previous convictions for minor offences committed over 20 years ago.
8. On 29 April 2011, he was intending to go via Trafalgar Square and Soho Square to Red Lion Square, to attend a “Not the Royal Wedding” street party organised by the campaign group “Republic”. He was stopped by a plain clothes police officer and arrested at around 9.05 a.m. He was taken to Albany Police Station, where he was informed that he had been arrested to prevent a breach of the peace. He was then strip searched and nothing of significance was found. He was released at approximately 3.00 p.m. and no further action was taken against him.
(b) The Zombies
9. Hannah Eiseman-Renyard and Deborah Scordo-Mackie (the first and fifth applicants) had no previous convictions or cautions. On 29 April 2011 they arrived in Soho Square between 10.00 and 11.00 a.m. It was their intention to take part in a “zombie picnic” organised by the campaign group “Queer Resistance”. They went for a drink together at a coffee shop in Oxford Street when a group of police officers arrived and arrested them to prevent a breach of the peace. The police were acting on information they had received that those dressed as zombies would attempt to gather at Westminster Abbey at 11 a.m. and throw maggots as confetti at the royal wedding procession.
10. They were taken to Belgravia police station where they were detained until about 3.45 p.m. They were told that they were being released because the royal wedding had ended. No further action was taken against them.
(c) The “Charing Cross” Republicans
11. Edward Maltby (the third applicant), Patrick McCabe (the fourth applicant), Hannah Thompson (the sixth applicant), Daniel Randall (the seventh applicant) and Daniel Rawnsley (the eighth applicant) had no previous convictions, cautions or interaction with the police with the exception of the fourth applicant who had a previously received a caution for possession of cannabis.
12. The applicants, as part of a larger group, arrived at Charing Cross station in central London at about 10.30 a.m. on 29 April 2011. They intended to attend a republican protest in Trafalgar Square but it became clear that that would not be possible, so they decided instead to attend the “Not the Royal Wedding” street party in Red Lion Square. However, before they left the station they were approached by British Transport Police officers who searched them and found they were in possession of placards which read “Democracy now: it is right and fitting to die for one’s country” and “Right to protest/precrime/dawn raids”. They were also found to be in possession of a megaphone, a cycling or climbing helmet and a scarf.
13. Some other members of the larger group were released after being searched. The applicants were informed that they were being held at Charing Cross train station to prevent a breach of the peace: the police expressed concern that they might draw a hostile reaction from the large pro-royalist crowds at Trafalgar Square. The applicants were later taken to Sutton Police Station where they detained until approximately 3.30 p.m.
3. The domestic proceedings
14. The applicants together with a number of other claimants brought a judicial review of their detention which was heard over three instances terminating in the Supreme Court (for details of the domestic decisions see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 46, 22 October 2018).
15. The High Court gave its decision on 18 July 2012. The applicants challenged their arrests on the grounds that there was no imminent breach of the peace; the decisions to arrest them were wholly disproportionate to any perceived threat, and their arrests and detention breached Articles 5, 8, 10 and 11 of the Convention. The High Court dismissed all their claims. It gave a detailed decision covering the policing context, the facts of the cases, and the relevant law and policy, and found that in relation to each applicant, there were reasonable grounds to apprehend an imminent breach of the peace and the arrests were therefore lawful under domestic law, and had not been in breach of the Convention.
16. The applicants sought permission to appeal to the Court of Appeal in relation to the points of domestic law and in respect of Article 5 of the Convention. On 25 March 2013 the Court of Appeal granted permission to appeal only the argument that their arrest and detention had not been in accordance with Article 5. The Court of Appeal also stayed all but four of the cases (two of those four concerned the second and fifth applicants); the four cases selected proceeded as test cases. It noted that:
“2. …as a matter of domestic law, the [High] Court determined that the arrests and detention of each of the appellants prior to the wedding and up to its conclusion were lawful. That finding is no longer the subject of challenge. The present appeals are concerned with the question whether the deprivation of the appellants’ liberty contravened Article 5 of the ECHR.”
The Court of Appeal gave its decision on 22 January 2014 agreeing with the High Court that the detention had been lawful under Article 5 § 1 (c).
17. The applicants in the four test cases sought permission to appeal to the Supreme Court, which was granted by the Court of Appeal on 24 March 2014. Building on arguments made in the lower courts the applicants argued before the Supreme Court that the Court of Appeal should have followed the interpretation of Article 5 § 1 (c) in Ostendorf v. Germany, no. 15598/08, 7 March 2013, which found that detention for purely preventive purposes was not in accordance withthe Convention. The Supreme Court gave its decision on 15 February 2017. It concluded that the applicants’ arrests were lawful under Article 5 § 1 (c) and dismissed their appeals.
18. The Supreme Court reiterated:
“29 … that the fundamental principle underlying Article 5 is the need to protect the individual from arbitrary detention, and an essential part of that protection is timely judicial control, but at the same time article 5 must not be interpreted in such a way as would make it impracticable for the police to perform their duty to maintain public order and protect the lives and property of others. These twin requirements are not contradictory but complementary.”
19. It found that events in the applicants’ case fitted more naturally with Article 5 § 1 (c), than with 5 § 1 (b). As to how Article 5 § 1 (c) should be interpreted, it conducted an extensive review of this Court’s case-law and considered that it was not clear and settled on this point. It analysed a line of jurisprudence derived from Lawless v. Ireland (no. 3), 1 July 1961, Series A no. 3:
“17. The [Strasbourg] court held that the expression “effected for the purpose of bringing him before the competent legal authority” qualified every category of arrest or detention referred to in article 5.1(c), and the clause therefore permitted deprivation of liberty
“only when such deprivation is effected for the purpose of bringing the person arrested or detained before the competent judicial authority, irrespective of whether such person is a person who is reasonably suspected of having committed an offence, or a person whom it is reasonably considered necessary to restrain from committing an offence, or a person whom it is reasonably considered necessary to restrain from absconding after having committed an offence”.
The court further held that the purpose of bringing the person before the court might, depending on the circumstances, be either “for the purpose of examining the question of deprivation of liberty or for the purpose of deciding on the merits” (para 14 [of Lawless. v. Ireland (no.3)]).”
20. It then identified that a different approach was applied by the majority in Ostendorf, cited above. In contrast to Lawless, cited above, the majority had found that the words “for the purpose of bringing him before the competent legal authority” governed all the limbs of Article 5 § 1 (c) thereby, excluding the possibility that preventive detention could be compatible with the Convention.
21. The Supreme Court declined to follow that approach. It noted that the minority in Ostendorf, had commented:
“25. … that later case law had unduly restricted the purpose of bringing the detainee before the court to “deciding on the merits” and had done away with the possible purpose of “examining the question of deprivation of liberty”. They favoured returning to Lawless, which did more justice to prevention as a possible justification for a deprivation of liberty than the interpretation followed by the majority. They said at para 5 of their [opinion]:
“An early, ‘prompt’ release, without any appearance before a judge or judicial officer, may occur frequently in cases of ‘administrative’ detention for preventive purposes. Even so, in such a situation it will be enough for the purpose of guaranteeing the rights inherent in article 5 of the Convention if the lawfulness of the detention can subsequently be challenged and decided by a court.”
22. The Supreme Court stated:
“32. There is, however, a difficult question of law as to how such preventive power can be accommodated within article 5. The Strasbourg case law on the point is not clear and settled, as is evident from the division of opinions within the Fifth Section in Ostendorf. Moreover, while this court must take into account the Strasbourg case law, in the final analysis it has a judicial choice to make.
33. The view of the minority in Ostendorf, that article 5.1(c) is capable of applying in a case of detention for preventive purposes followed by early release (that is, before the person could practicably be brought before a court), is in [the court’s] opinion correct for a number of reasons.”
23. The Supreme Court found that approach fitted more naturally within the language in Article 5 § 1 (c) and was practical in the sense that if the majority conclusion were followed, in order to be lawfully able to detain a person so as to prevent them imminently committing an offence, the police must harbour a purpose of continuing the detention, until such time as the person could be brought before a court. This could lengthen the period of detention and place an unnecessary burden on court time and police resources. Accordingly, the Supreme Court concluded that to achieve the fundamental purpose of Article 5, the qualification on the power of arrest or detention in Article 5 § 1 (c) contained in the words “for the purpose of bringing him before the competent legal authority”, was implicitly dependent on the cause for detention continuing long enough for the person to be brought before the court.
24. Applying that approach to the cases before it, the Supreme Court found in relation to Article 5 § 1 (c) that there was nothing arbitrary about the decisions to arrest, detain and release the appellants. The court upheld the decision of the lower courts that the applicants’ arrests and detention were lawful and dismissed the appeals.
25. In respect of Article 5 § 1 (b), the Supreme Court also preferred the conclusion of the minority in Ostendorf, cited above:
“40. …that the obligation has to be much more specific than a general obligation not to commit a criminal offence (or, in this case, a breach of the peace), and that such a general obligation does not acquire the necessary degree of specificity by focusing narrowly on the particular facts or by the person concerned being given a reminder of it in specific circumstances. There are also practical considerations. The police may find it necessary to take action to prevent an imminent breach of the peace in circumstances where there is not sufficient time to give a warning. An example might be a football match where two unruly groups collide and the police see no alternative but to detain them, or the ringleaders on both sides, immediately for what may be quite a short time. In summary, [we] would be concerned that in stretching article 5.1(b) beyond its previously recognised ambit the majority found it necessary to impose limitations which in another case might leave the police effectively powerless to step in for the protection of the public.”
B. Relevant domestic law and practice
26. Breach of the peace is a common-law concept dating back to the tenth century. According to domestic case-law (see R (Laporte) v Chief Constable of Gloucester[2007] 2 AC 105 (§ 29):
“Every constable, and also every citizen, enjoys the power and is subject to a duty to seek to prevent, by arrest or other action short of arrest, any breach of the peace occurring in his presence, or any breach of the peace which (having occurred) is likely to be renewed, or any breach of the peace which is about to occur”.
27. The power is confined to a situation in which the person making the arrest reasonably believes that a breach of the peace is likely to occur in the near future. Moreover, there is only a power of arrest if it is a necessary and proportionate response to the risk.
28. The leading domestic authorities on the subject are the decisions of the House of Lords in Albert v Lavin [1982] AC 546 and R (Laporte) v Chief Constable of Gloucestershire Constabulary[2007] 2 AC 105. The concept includes safeguards to prevent breach of the peace powers from becoming “a recipe for officious and unjustified intervention in other people’s affairs” (see Laporte, § 62).
COMPLAINTS
29. The applicants complained under Article 5 § 1 (b) that their arrest and detention was disproportionate, and could not be justified because there was no concrete or specific obligation that they failed to fulfil prior to their arrest. They also complained in respect of 5 § 1 (c) that the purpose of the arrest and detention was purely preventative.
THE LAW
A. Joinder of the applications
30. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
B. Alleged violation of Article 5 of the Convention
31. Article 5 of the Convention reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
…
Admissibility
(a) The general principles
32. The Grand Chamber of the Court examined the meaning of the relevant provisions of Article 5 § 1 in S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, 22 October 2018. The case concerned the applicants’ detention on 10 October 2009 for over seven hours when they were in Copenhagen to watch a football match between Denmark and Sweden. The authorities detained the applicants in order to prevent hooligan violence. In making its assessment, the Grand Chamber took account of the judgment the Supreme Court in the present cases under the heading “Comparative national case-law” (see § 46).
33. In relation to Article 5 § 1 (b), it recalled that detention may be authorised under the second limb of Article 5 § 1 (b) in order to “secure the fulfilment of any obligation prescribed by law”; and this concerns cases where the law permits the detention of a person to compel him or her to fulfil a specific and concrete obligation already incumbent on him or her, and which he or she has until then failed to satisfy. In order to be covered by Article 5 § 1 (b), an arrest and detention must also be aimed at or directly contribute to securing the fulfilment of that obligation and not be punitive in character (see S., V. and A. v. Denmark, cited above, §§ 79-80 with further references).
34. It noted that in S., V. and A. v. Denmark, cited above, the applicants were not given any specific orders, for example to remain with one group or another or to leave a specific place, and were not given a clear warning of the consequences of their failure to comply with such an order. Nor were they told by the police which specific act they were to refrain from committing. It contrasted this with the very specific measures enumerated in Ostendorf (cited above, § 95) for ensuring that an individual has been made aware of the specific act which he or she must refrain from committing (see S., V. and A. v. Denmark, cited above, § 84 with further references).
35. The Grand Chamber recalled that a wide interpretation of sub‑paragraph (b) of Article 5 § 1 would entail consequences incompatible with the notion of the rule of law, from which the whole Convention draws its inspiration and concluded that the applicants’ detention in S., V. and A. v. Denmark was not covered by sub‑paragraph (b) of Article 5 § 1 (see S., V. and A. v. Denmark, cited above, § 87 with further references).
36. In relation to Article 5 § 1 (c) the Grand Chamber first came to a “partial conclusion” (see §§ 114-117):
“114…there are weighty arguments in favour of espousing the interpretation adopted in Lawless and reflected in a number of rulings thereafter to the effect that Article 5 § 1 (c) contemplates the lawful arrest or detention of a person in distinct circumstances, including, under the second limb, “when it is reasonably considered necessary to prevent his committing an offence”.
…
116. The Court is therefore of the general view that in order not to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public, provided that they comply with the underlying principle of Article 5, which is to protect the individual from arbitrariness (see, Austin and Others v. the United Kingdom [GC], nos. 39692/09 and 2 others, § 56, ECHR 2012), the lawful detention of a person outside the context of criminal proceedings can, as a matter of principle be permissible under Article 5 § 1 (c) of the Convention …”
37. It then identified a question about the ‘purpose’ requirement in Article 5 § 1 (c), in particular whether this ‘purpose requirement’ applies to all categories of cases referred to in that sub-paragraph. It found that it did not necessarily apply to cases of preventative detention:
“125. It can therefore be argued, as the Supreme Court of the United Kingdom did …, that in respect of short-term preventive detention the requirement “for the purpose of bringing [the detainee] before the competent legal authority” implicitly depends on the cause of detention continuing long enough for the person to be brought before a court …”.
38. It then summarised the relevant principles it had identified:
“137. Having regard to the considerations above, the Grand Chamber finds that it is necessary to clarify and adapt its case-law under sub‑paragraph (c) of Article 5 § 1, and in particular to accept that the second limb of that provision can be seen as a distinct ground for deprivation of liberty, independently of the first limb. Although the “purpose” requirement under Article 5 § 1 (c) applies also to deprivation of liberty under the second limb of this provision, this requirement should be applied with a degree of flexibility so that the question of compliance depends on whether the detainee, as required by Article 5 § 3, is intended to be brought promptly before a judge to have the lawfulness of his or her detention reviewed or to be released before such time. Furthermore, in the event of failure to comply with the latter requirement, the person concerned should have an enforceable right to compensation in accordance with Article 5 § 5. In other words, subject to the availability under national law of the safeguards enshrined in Article 5 §§ 3 and 5, the purpose requirement ought not to constitute an obstacle to short-term detention in circumstances such as those at issue in the present case.”
(b) Application of the general principles to the present case
39. The applicants in the present cases have complained about their preventative detention under Articles 5 § 1 (b) and (c) of the Convention. In light of the analysis carried out by the Supreme Court (see paragraph 19 above) and the conclusions of the Grand Chamber in S., V. and A. v. Denmark, cited above, (see paragraphs 33-35) the Court considers that their detention was not covered by sub‑paragraph (b) of Article 5 § 1. In particular it notes that like those in S., V. and A. v. Denmark, cited above, the applicants were not given any specific orders, and were not given a clear warning of the consequences of their failure to comply with such an order. Nor were they told by the police which specific act they were to refrain from committing, in contrast with the very specific measures enumerated in Ostendorf (cited above, § 95).
40. The Court therefore considers it is appropriate to examine the applicants’ detention under Article 5 § 1 (c). Accordingly, the Court must first consider the question of lawfulness (see S., V. and A. v. Denmark, § 127).
41. There was no dispute that the applicants’ detention was lawful under domestic law. It may be noted that the High Court was satisfied that the arresting officers had reasonable grounds for believing that a breach of the peace was imminent (see paragraph 15 above), and that finding based on domestic law was apparently not appealed by the applicants (see paragraph 16 above).
42. Compliance with national law is not however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see S., V. and A. v. Denmark, § 74). In the present context that means that the offence should be concrete and specific as regards, in particular the place and time of its commission and its victims and that the authorities must furnish some facts or information which would satisfy an objective observer that the person concerned would in all likelihood have been involved in the concrete and specific offence had its commission not been prevented by the detention (see S., V. and A. v. Denmark, § 127).
43. As to the applicants’ allegation that their preventive detention was in violation of Article 5 § 1 (c), the Court considers that the offence of breach of the peace which all the applicants were charged with was sufficiently concrete and specific in the circumstances. Against the factual background of the royal wedding in terms of crowd size and international interest, coupled with the threat level of ‘severe’ in the United Kingdom at the relevant time, the Court finds that an objective observer would be satisfied that the applicants would in all likelihood have been involved in the concrete and specific offence had its commission not been prevented by their detention. Finally, it notes that the applicants were released as soon as the imminent risk had passed and in all cases their detention was for a matter of hours, which the Grand Chamber identified as broadly appropriate in the context of preventive detention (see S., V. and A. v. Denmark, cited above, § 125).
44. In the circumstances of the present case the domestic courts in fact examined these elements in the context of their analyses of national law, the Court of Appeal observing that there was no practical distinction between the test in common law and under the Convention (see § 87). The Supreme Court noted that:
“5. The Administrative Court rejected the broad complaint that the police adopted an unlawful policy for the policing of the royal wedding. After close examination of the facts of the individual arrests, it also held that the arresting officers had good grounds to believe that the arrests were necessary in order to prevent the likelihood of an imminent breach of the peace. It dismissed as unrealistic the argument that lesser measures would have been adequate to meet the degree of risk. Continuous police supervision was not a feasible option, given the many demands on police resources. The claims that the police acted unlawfully as a matter of domestic law therefore failed.”
45. The Court considers there are no cogent reasons (see S., V. and A. v. Denmark, cited above, § 154) which would lead it to depart from the Supreme Court’s finding for the second and fifth applicants that:
“31. In this case there was nothing arbitrary about the decisions to arrest, detain and release the appellants. They were taken in good faith and were proportionate to the situation …”
46. In relation to the remaining six applicants the Court notes that following the decision of the Supreme Court, the assessment of the High Court became the final assessment in their individual cases. Again, it finds no cogent reasons which would lead it to depart from the decision of the High Court. In this respect, it notes that the domestic courts undertook a comprehensive review of the background facts of the cases and this Court’s jurisprudence in their decisions, and their analyses proved to be well-founded having formed an element in the reasoning of the Grand Chamber in S., V. and A. v. Denmark, cited above, § 154.
47. Accordingly, the Court considers that the domestic courts struck a fair balance between the importance of the right to liberty and the importance of preventing the applicants from disturbing the public order and a causing danger to the safety of individuals and public security.
48. The foregoing considerations are sufficient to enable the Court to conclude that the applications are inadmissible on the basis they are manifestly ill-founded.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 28 March 2019.
Renata Degener AlešPejchal
Deputy Registrar President
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