This piece was originally posted on the UK Constitutional Law Blog and is reposted here with thanks.

The last few days have proved to be eventful for anyone interested in free speech and protest. First, Cambridge PhD student Owen Holland was rusticated for seven terms for reading out a poem that disrupted a speech being given by universities minister, David Willetts. Had this fallen to the magistrates, under say s.5 of the Public Order Act 1986, rather than to the university’s disciplinary “court”, it is hard to see how the sentence meted out would not have been significantly less. The case it most closely resembles is DPP v Percy where a conviction under s.5 was overturned by the Divisional Court. Mrs. Percy unfurled a banner onto the ground outside a USAF air base in Norfolk, proclaiming “Stop Star Wars” to great consternation of serving personnel. Hallet J concluded that the magistrates had paid too little attention to the defendant’s rights to freedom of speech under Article 10 of the ECHR. In fact, charges may never have been brought. Under the new guidelines for public protest, published last week by the CPS, it is far likelier he would not even have been prosecuted. Various factors point to the public interest not being served: the protest was peaceful and was essentially only a minor infringement – though militating factors against were that it was probably not instinctive or done in the heat of the moment. All of this is aside from the potential liability of the university, as a “public authority under s.6 of the Human Rights Act, imposing what by any standard was a disproportionate penalty.

The other, more significant, event was the decision by the European Court of Human Rights in Austin v UK. This was the challenge to the decision by the Metropolitan Police decision to “kettle”, or contain, a group of some several thousand at Oxford Circus during the May Day protests in 2001. The police, perceiving a risk of violence and disorder (which did eventuate), imposed a cordon under the common law power to keep the peace. The applicants – comprising one protester and three innocent bystanders caught up in the containment – lost their case in the House of Lords in 2009. Their Lordships held that the cordon, that lasted for up to seven hours, did not constitute a deprivation of liberty within Article 5 of the ECHR. That decision was subject to uniform critical comment (by David Feldman in the CLJ, by Helen Fenwick in Public Law and my own piece in the EHRLR), specifically the idiosyncratic reasoning that was – in our collective view – clearly out of line with the great weight of Convention jurisprudence. Those who followed the case through the domestic courts were convinced that Strasbourg would see legal sense and reject the idea, propounded largely by Lord Hope and Lord Neuberger, that issues of proportionality were relevant to the question whether Article 5 was even engaged. Previous case law determined it played a role only at a later stage, when it came to deciding whether any deprivation was arbitrary, and so unlawful.

Sadly, we were all mistaken. While the Court in Strasbourg did not adopt the analysis of the House of Lords wholesale there is in truth little to discern between the two. Strasbourg does not specifically advert to proportionality as being part and parcel of Article 5 at the engagement stage – and we must be grateful for that. Instead, because of its emphasis on considering the whole context in which the supposed deprivation occurred, the result is much the same. Certainly the analysis by the House of Lords, that intention and motive should be one of the factors in determining whether there had been a deprivation, comes to play centre stage at Strasbourg. Despite its view that “an underlying public interest motive…has no bearing on the question of whether that person had been deprived of their liberty” (para 58), the approach it then adopted – that the type and manner of containment and the general context – effectively did that. Where the police impose a cordon as the least intrusive and most effective means “to isolate and contain a crowd, in volatile and dangerous conditions” (para 66) that would not involve depriving someone of their liberty. If we temporarily put pure legal analysis to one side, it is hard not to see how being held for up to seven hours without access to food or water, without shelter or perhaps suitable clothing on a wet, windy day was not depriving someone of their liberty. In common sense terms, what more was needed?

While the Court was keen to highlight the specific and exceptional facts, it has promulgated – wittingly or not –  a revision of the scope of the guarantee contained in Article 5, something it was at pains to stress elsewhere as a fundamental human right. It is hard to see why, or how, the various traditional factors that have historically underpinned the Court’s analysis should suddenly come to encompass “the specific context and circumstances” (paras 59 and 60). Three points seem to be worth making. First, those traditional factors – type, duration, effects and manner of implementation – tend to be the ones that are either capable of objective determination or in fact are viewed from the perspective of the putative detainee. Nothing in the Court’s history indicates that we should view deprivation through the eyes of the state or putative captor. Neither does “type and manner of implementation” mean “context” as well (para 65). Secondly, one factor that swayed the Court was the analogy drawn with other “commonly occurring restrictions on movement”: containment of away fans after football matches or becoming trapped with nowhere to go after an accident on a motorway. These examples also informed the outcome in the House of Lords but do they stand up? Many football fans might well see themselves as having been deprived of their liberty. In any event, would an officious bystander not think that those “deprived” of liberty in those situations would be seen as implicitly consenting to such restrictions when they set off for the match or on their holidays? The same is far from true of those who are kettled, and certainly not those three applicants who were innocently caught up in the indiscriminate police action. Those in their cars stuck between two junctions after a pile up are not being detained by the police; they are simply unable to continue. Being prevented from moving is not down to a decision to contain but to the lack of an available exit route. They’d be free to leave the scene – and would undoubtedly be overjoyed to do so – if there were, or if they were able simply to abandon their cars and leave on foot. The last point is this. From a conceptual point of view, Strasbourg’s analysis is problematic. It places the burden of arguing that containment was not for public protection purposes or was for longer than necessary on the citizen. This is a reverse from the usual approach under the qualified articles 8-11.

The judgment in other parts speaks with a different voice: the Court noted of Articles 10 and 11, which did not form part of the applicants’ case, that “it must be underlined that measures of crowd control should not be used by national authorities directly or indirectly to stifle or discourage protest.” It is hard to square this with its decision on Article 5. As I have written elsewhere this edges us towards the hitherto unknown concept of an illegal gathering, dealing with protesters en masse based on suspicions of a few. This is clearly out of line with the well-known principle, stemming from Ezelin v France, that no one should lose their right to protest peacefully simply because others are violent.

Austin does not provide the police with a carte blanche to contain when it is no longer necessary in order to prevent serious injury or damage; the Court could not exclude “that the use of containment and crowd control techniques could, in particular circumstances, give rise to an unjustified deprivation of liberty in breach of Article 5§1”. That though provides little guidance for future development. If the Court is keen to preserve its subsidiary role, some better indicia for national courts and police would have been of greater assistance. Presumably those set out by Lord Neuberger in the House of Lords (at [57]) take on greater resonance? It is something of an irony that if the prescribed by law test were applied to the Court’s own judgments, many would be found wanting. This is no different: could an officer know with sufficient certainty as to foresee the consequences of imposing a cordon? It’s doubtful, surely?

The decision was not unanimous. There is much greater and sounder strength to the dissent of Judges Tulken, Spielmann and Garlicki. It is they, for example, who point out that in its decision two years before, Gillan v UK, the European Court seems to be firmly of the view (though it decided the case under Article 8) that a stop and search for no more than half an hour could well be enough to constitute a deprivation of liberty. It is hard to see how Austin could be distinguished, given the clearly greater coercion and (we must assume) similar feelings on the part of those contained that they were entirely deprived of the ability freely to move. It is the dissenting judges too who highlight that the decision – and its implication of context, proportionality and purpose – is not limited to pressing cases of public order such as those in the instant case. It would apply to all detention and incarceration claims unless in future the Court can be prevailed upon to see Austin as an exception. That simply means that the law as it stands is even more opaque.

There are entirely plausible reasons – though not necessarily good ones – for the holding in Austin but they point to wider (inter-)institutional concerns. The Court was betwixt Scylla and Charybdis. If they found for the applicants on what was in effect the preliminary question, and held that the kettling constituted a deprivation of liberty, the UK and so the police would have lost. None of the justifications in Article 5(1)(a)-(f) would have held up: there was no specific obligation that any of them needed to fulfil and neither was any being detained on suspicion of having committed a crime. It would necessarily mean that any operation for the policing of large-scale disorder and protest would have had the power to contain removed from its “toolkit”. Whether this is good or bad is not the point, though we might simply pause to note that the Toronto police have recently foresworn its use so there must be alternatives. The Court will not have been unaware of the recent public and political reaction following Othman v UK, holding that Abu Qatada could not be deported to Jordan. Interim, we have had the leaking of the Brighton Declaration on the future of the Court (discussed on this ‘blog by both Mark Elliott and Noreen O’Meara). Is it surprising then that the narrowing of protection in Austin arose at a time when the Court and its judges might feel under heavy threat from politicians in member states – and indeed from leading judges? It would explain why it felt it could (should?) depart from A v UK, the Belmarsh case in 2009, which the three dissenting judges highlighted. There, the Court stated (para 171) that it did not accept the Government’s argument that

Article 5 § 1 permits a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court’s jurisprudence under sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee.

We see dotted around the judgment many references to the idea of deferring to national decision makers, in particular courts, and positively acknowledging the subsidiary nature of the Strasbourg institutions.

The problem though is this. Strasbourg has done the very thing that those on the Tory right, such as Dominic Raab, normally accuse it of when it rules in favour of applicants: illegitimately usurping democratic decision-makers and unjustifiable expansionism on a grand scale. Austin is very clearly a judgment predicated on its “living instrument” approach (see para 53), something decried by Raab in his Daily Telegraph piece, but with one eye on its reception. In Raab’s view “the Court’s judges [have] assumed the power to extend human rights into uncharted areas. Courts should interpret the law, but leave elected lawmakers to create it.” Aside from the fact that Austin is not an extension of human rights but a narrowing, all that is true here. There is no warrant in any previous decision for the balancing that the Court adopted. Indeed as is clear from A v UK, it flies in the face of precedent, such as it is at Strasbourg. Nor was there any need. As the three dissenting judges pointed out, as indeed did the applicants’ counsel, the drafters felt the correct balance between individual rights and community security had been struck by expressly limiting the purposes which a deprivation of liberty might legitimately pursue. The fact that holding against the UK would have thrown public order policing into disarray is no reason for what Raab would no doubt in any other context have called a “shifting of the goalposts” and “subverting democracy”. If proportionality and purpose were properly to be part of Article 5, shouldn’t that be a decision for Council ministers? Sauce for the goose indeed.