Four people arrested in central London on the day of the royal wedding were held for a few hours to prevent an imminent breach of the peace and released without charge once that risk had passed. They said this purely preventive detention breached article 5 of the European Convention on Human Rights because they were never taken before a court. The Supreme Court dismissed their appeals, holding that the arrests and detention were lawful under article 5.1(c).
The wedding of the Duke and Duchess of Cambridge on 29 April 2011 drew large crowds, with members of the Royal Family, foreign royalty and other heads of state moving around London. The terrorist threat was assessed as severe. Violence had marred a TUC day of action on 26 March 2011 and student protests in November and December 2010, including an attack on the Prince of Wales’s car. The police also had intelligence that disruption of the celebrations was being planned through social websites. Thousands of officers were deployed. Their stated aims included a lawful and proportionate response to protest and the maintenance of public order.
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The four appellants were test cases from a larger group. They were arrested separately because the arresting officers believed arrest was necessary to prevent an imminent breach of the peace. They were taken to different police stations and released without charge when the wedding was over and the police considered that the risk had passed. Their custody lasted from about 2½ to 5½ hours.
The domestic-law challenge
Arrest to prevent an imminent breach of the peace is an old common law power, available to the police and to any citizen. Lord Toulson recalled its limits from Albert v Lavin and R (Laporte) v Chief Constable of Gloucestershire Constabulary. A breach of the peace is, in essence, violence. Where it has not yet happened, arrest is lawful only if the person arresting reasonably believes that it is likely in the near future, and only if arrest is necessary and proportionate. Those limits stop the power becoming, as Lord Rodger put it in Laporte, “a recipe for officious and unjustified intervention in other people’s affairs”.
In the Administrative Court, Richards LJ rejected the broad claim that the wedding policing plan failed to respect the rights of anti-monarchist protesters to demonstrate peacefully. After examining the individual arrests, that court held that the officers had good grounds to believe arrest was necessary, and that lesser measures such as continuous supervision were unrealistic given the other demands on the police. The domestic-law claims therefore failed. Permission to appeal was given only on article 5.
Article 5
Article 5 protects liberty and lists the only circumstances in which a person may be detained. Article 5.1(c) allows lawful arrest or detention for the purpose of bringing someone before the competent legal authority on reasonable suspicion of an offence already committed, or where it is reasonably considered necessary to prevent that person committing an offence or fleeing afterwards. Article 5.3 requires a person detained under article 5.1(c) to be brought promptly before a judge. For Convention purposes, a breach of the peace counts as an offence even though English law does not classify it as one.
Article 5.1(b) separately allows detention to secure fulfilment of an “obligation prescribed by law”. Strasbourg case law requires that obligation to be concrete and specific: a general duty to obey the criminal law is not enough.
The appellants said the evidence showed a purely preventive purpose. They argued that the Court of Appeal should have followed the majority in Ostendorf v Germany, under which article 5.1(c) cannot authorise preventive detention of someone not suspected of an offence already committed, and that article 5.1(b) did not apply either.
How the lower courts reasoned
The Administrative Court thought the words about bringing a person before the competent legal authority applied only to suspicion of an offence already committed, not to prevention. On that reading, the arrests satisfied article 5.1(c). Richards LJ thought article 5.1(b) looked ill suited to a future, though imminent, breach of the peace, but left that point undecided.
The Court of Appeal, Maurice Kay LJ, agreed that the claims failed but not with that reasoning. Ostendorf, decided after the Administrative Court judgment, led it to accept that the purpose of bringing the person before a court governs every limb of article 5.1(c). It nevertheless declined to follow the Ostendorf majority’s rejection of purely preventive detention. It drew an “irresistible inference” that the officers knew the appellants could not lawfully be held beyond the point at which it was reasonably practicable to take them before the magistrates. That was not practicable before their release, but they would have been taken to court had longer detention become necessary. The Court of Appeal therefore found a contingent purpose sufficient for article 5.1(c), and again left article 5.1(b) undecided.
The Supreme Court’s choice
Lord Toulson, with whom the other Justices agreed, said the Strasbourg authorities had to be taken into account, but they were not clear and settled. The court therefore had a choice to make.
In Lawless v Ireland (No 3), the Strasbourg court held that every category in article 5.1(c), including prevention, is qualified by the purpose of bringing the person before a court, whether to examine the lawfulness of the detention or to decide the merits. The vice it identified was unlimited executive detention without judicial oversight. In Brogan v United Kingdom, by contrast, an intention to take terrorism suspects to court if investigation produced sufficient evidence was enough for article 5.1. The police did not have to intend to do so regardless of whether there was cause. In Nicol and Selvanayagam v United Kingdom, protesters were first held to prevent an offence and later taken before magistrates to be bound over; both stages were compatible with article 5.1(c).
Ostendorf was the closest case. A suspected football hooligan was detained to prevent violence at a match and released an hour after the game, without a court appearance. The complaint was unanimously rejected, but the judges divided on the route. The majority used article 5.1(b) and confined article 5.1(c) to pre-trial detention of someone already suspected of an offence. The minority, Judges Lemmens and Jaderblom, held that article 5.1(c) can cover short preventive detention, and that early release is compatible with article 5 if the detention can afterwards be challenged in court. They thought a general duty not to commit offences was too broad for article 5.1(b).
Lord Toulson treated protection from arbitrary detention and the police duty to keep order as complementary. Article 5 must not be read so as to make that duty impracticable. Proportionality, which also limits the common law power, requires attention to practical consequences. There was nothing arbitrary about these arrests, detentions and releases: they were in good faith and proportionate. If the police could not hold someone for a period too short for a court hearing, where that was reasonably considered necessary to prevent imminent violence, policing mass events would be severely hampered.
He preferred the Ostendorf minority. The facts fitted article 5.1(c) more naturally than article 5.1(b), because that provision expressly covers detention reasonably considered necessary to prevent an offence. The majority reading tended to collapse that category into suspicion of an offence already committed and sat uneasily with Lawless. Lawless itself was not about a risk expected to pass before a hearing was practicable. It would be perverse to make a short preventive detention lawful only if the police intended to continue it after the risk had gone, merely so the person could be brought to court to be bound over. That would lengthen detention and burden the courts and the police.
He therefore read the requirement of a purpose of bringing the person before the competent legal authority as applying where the cause for detention lasts long enough for that to happen. On an early release, it is enough that the lawfulness of the detention can later be decided by a court. He preferred this to the Court of Appeal’s inference of a conditional purpose from the outset, although the result was the same. He accepted that the appellants would have been taken before a court had longer detention been necessary. Early release should not give them a stronger article 5 complaint than if they had been held and brought before magistrates to be bound over.
On article 5.1(b), he was inclined to agree with the Ostendorf minority. A general obligation not to commit a breach of the peace does not become specific merely because of the particular facts or a warning. The police may also have to act when there is no time for a warning. The appeals did not depend on that provision.
Verdict: The Court unanimously dismissed the appeals. The arrests and short detentions to prevent imminent breaches of the peace were lawful under article 5(1)(c). The Court did not rely on article 5(1)(b).
Source: R (Hicks and others) v Commissioner of Police for the Metropolis [2017] UKSC 9
