Legal Philosophy and Human Rights
Portfolio Item 3
Ariticle 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms constitutes that everyone has the right to liberty and security of the person. Although the conventional meanings of the words ‘liberty’ and ‘security’ of person differ, they do not haveindependent meanings in the Convention as article 5 is almost entirely concerned with the deprivation of liberty.‘Security’, however, appears together with ‘liberty’ in cases concerning, for instance, the disappearances of prisoners.
The main purpose of the article is to protect citizens from arbitrary arrest or detention. Any deprivation of liberty, therefore, which is not based on lawfulauthority and cannot be subject to ‘proper judicial control’ breaches the convention right. The only instances when an individual can be deprived of his/her liberty are enumerated in article 5(1) itself, in the paragraphs a) to f).
The application of Article 5 to cases involving kettling was first examined in Austin and another v Commissioner of Police of the Metropolis. The case concerned ananti-capitalism demonstration that took place on 1 May 2001 in London. There was no notice of the organisers’ intention given to the police and refusal of any cooperation. The publicity material (with the date, time and location) ‘included incitement to looting and violence’ and the protest started earlier than it was expected. Some 3000 protesters, including Ms Austin, that were gathered atOxford Circus were caught within the police cordon and prevented from leaving the area for around seven hours.
As there was no previous authority concerning the application of Article 5(1) to measures of crowd control which could serve as guidance in this case, the court had to start with considering the distinction between restriction on movement and deprivation of liberty and deciding withinwhich category kettling falls as Article 5 is not concerned with the former.
The House however, admitting that it is a borderline case, moved its focus to the purpose and motive as crucial factors in determining whether the action of the police fell within the scope of the article. Thus, to determine whether measures of crowd control fall within the ambit of Article 5 it was necessary toexamine whether the use of cordon was arbitrary.The court, in assessing this, used observations made in Saadi v United Kingdom in which the Grand Chamber considered the concept of arbitrariness of detention and concluded that it is more than just compliance with national law. It said that two other issues should be considered, namely whether the detention was carried out in good faith and whether itwas proportional and did not last longer than it was reasonably necessary. It was held in Austin that these requirements were met and therefore the Article 5 was not engaged.
Thus, crowd control measures which are resorted to in the interest of the community and are not arbitrary will not fall within the ambit of the article.
Mead is very critical of the decision in Austin and thereasoning behind it as he argues that the matter considered i.e. proportionality, or balance, cannot play a role in the cases of deprivation of liberty. This incorrect assumption, according to him, has led to another one namely that motive and purpose are relevant when considering whether the Article 5(1) even applies. He also argues that cases cited and analysed in Austin do not in fact support theoutcome. In Saadi for instance, arbitrariness was examined not to assess whether the Article 5 applied at all, but in relation to the lawfulness of the deprivation of liberty.
In his conclusions, Mead writes that
If the House of Lords line were followed in a case like Saadi in future--or countless others--there would be no need to consider art.5(1)(f) at all if some sort of ill-defined...