Facts:
On 1st May 2001 at 2 pm a crowd of demonstrators marched into Oxford Circus. The organisers had deliberately given no notice to the police of their intentions. They had the deliberate aim of creating destruction in the capital. Taken by surprise, the police tried to establish control by putting in place a cordon which was effectively in place at 2.20 pm. There was sufficient space within the cordon for people to walk but conditions were uncomfortable. It took about seven hours for the police to disperse the crowd, given the non co-operative attitude of the demonstrators. The appellant was among the crowd demonstrating, but she was not one of the organisers. She had planned to collect her baby that she had left in a crèche but was prevented from doing so, being caught into the police cordon. She brought a claim for false imprisonment and for breach of her right to liberty under article 5(1) of the Convention. Her claim was dismissed by Tugendhat J and subsequently by the Court of Appeal. In the House of Lords the common law plea was abandoned.

Holding:
The House of Lords unanimously dismissed the appeal and held that the plea did not come within the scope of Article 5(1) of the Convention.

In his leading judgement, Lord Hope, stressed that a distinction was to be made, for Convention purposes, between conditions which restrict one’s movement (that fall under article 2 of Protocol 4, not ratified by the UK) and conditions which amount to a deprivation of one’s liberty (under article 5). In this case the appellant’s liberty of movement was restricted by the police cordon but the question was whether this was also a deprivation of liberty under Article 5. Article 5 is an absolute right and its restrictions are to be construed strictly.

However, whether there was a deprivation of liberty, as opposed to a restriction of movement, Lord Hope held, was a matter of degree and intensity which had to be considered within a range of factors, including the specific situation of the individual and the context in which the restriction of liberty occurred. The ambit that is given to article 5 as to measures of crowd control must take account of a fair balance between the rights of the individual and the interests of the community.

So any steps that are taken must be resorted to in good faith and must be proportionate to the situation which has made the measures necessary. Anything that is done which affects a person’s right to liberty must not be arbitrary. It would seem in principle that the more intensive the measure and the longer the period it is kept in force the greater will be the need for it to be justified by reference to the purpose of the restriction if it is not to fall within the ambit of the article.

Lord Hope held that in this case, the fact that the cordon lasted for long was justified by the impossibility for the police, in circumstances that were beyond their control, to release everyone earlier. He held that measures of crowd control fell outside the scope of application of Article 5, so long as they were not arbitrary. In the present case, the cordon was put in place in good faith, it was a proportionate measure and it lasted for no longer than was reasonably necessary. Therefore article 5(1) was not applicable.

Lord Neuberger also added obiter that the intention of the police was relevant, particularly in a non-paradigm case, such as the present one, and that, if it had transpired that the police had maintained the cordon beyond the time necessary for crowd control in order to punish the demonstrators then it could have amounted to a breach of Article 5.

He also said that if the restraint in the present case did amount to detention within article 5, it would not be possible for the police to justify the detention under any of the exceptions in paras (a) to (f). This, he held, supported the contention that the constraint did not amount to detention within article 5 at all.

Lord Scott of Foscote, Lord Walker of Gestingthorpe and Lord Carswell agreed with Lord Hope that the appeal should be dismissed.