EHRM, 15-03-2012, nr. 39692/09, nr. 40713/09, nr. 41008/09

The hearing in the High Court before Tugendhat J lasted three weeks, including six days of oral evidence. He considered live evidence from 18 lay witnesses and two experts, statements from a further 138 witnesses, thousands of pages of documentary evidence and video footage from hand-held and security cameras and police helicopters. In his judgment, delivered on 23 March 2005 ([2005] EWHC 480 (QB)), Tugendhat J devoted 500 paragraphs to his assessment of the evidence and findings of fact. His factual findings can be summarised as follows.

Tugendhat J found that on 18 June and 30 November 1999 and May Day 2000 there had occurred very serious breakdowns in public order in London, which the police feared would be repeated in 2001. The theme of all three demonstrations was protest against capitalism and globalisation. The organisers of the event on 18 June 1999 had failed to co-operate with the police and had distributed publicity material similar to that distributed by the organisers of the May Day 2001 demonstration. During the afternoon of 18 June 1999 a crowd of some 3,000 to 5,000 people, wearing masks, caused approximately GBP 2 million worth of damage and injury to members of the public and police officers, eleven of whom required hospital treatment. Demonstrations on these themes had also resulted in serious breakdowns in public order in other countries at about this time, including in Seattle on 30 November 1999 (the World Trade Organisation meeting), in Washington DC on 16 April 2000 (the International Monetary Fund meeting), in Melbourne on 11–13 September 2000 (World Economic Forum Asia Pacific summit), in Prague on 26 September 2000 (another International Monetary Fund meeting), and on 22 April 2001 in Quebec (a Summit of the Americas meeting). The planning for May Day 2001 reflected experience at these and earlier demonstrations, particularly in London, and recommendations made in the light of them.

For 1 May 2001, two events had been notified to the police, namely a trade union May Day March and Rally and a Young Socialist Students March, taking place in different parts of London. In addition, intelligence indicated that activists representing a broad coalition of environmentalist, anarchist and left wing protest groups intended to stage various protests at 24 locations across London based on the squares of the Monopoly board-game. The final event was to be a rally at Oxford Circus at 4 p.m. The organisers of the ‘May Day Monopoly’ protest did not make any contact with the police nor attempt to seek authorisation for the demonstrations and they attempted to maintain secrecy about the locations and nature of the protest. Protesters were directly and indirectly encouraged to wear masks and to engage in looting and violence (see Tugendhat J's judgment, §§ 206-225). The intelligence available to the Police Special Branch was that there would be ‘500 to 1,000 hard core demonstrators looking for confrontation, violence and to cause public disorder’. The Special Branch assessment was that the protest would involve one of the most serious threats to public order ever seen in London, with a real risk of serious injury and even death, as well as damage to property, if they did not effectively control the crowd. Those at risk included members of the public, police officers and other demonstrators. On 24 April 2001 the Mayor of London wrote an article in the principal London evening newspaper, expressing the view that the organisers of the May Day protest deliberately sought to create destruction, and urging Londoners to stay away. Similar warnings were reported in a number of other newspapers in March and April 2001.

The police plan for the day involved the deployment of nearly 6,000 officers on foot wearing high visibility jackets, in addition to mounted police officers. At that time, this was about the largest number of police officers that had ever been deployed in London. The policemen and women responsible for policing on May Day 2001 were the most experienced public order officers in England. Since it was foreseen that the final event would be a gathering at Oxford Circus at 4 p.m., a speaker system was installed there. The strategic intentions of the police operation were stated as being to provide public reassurance and ensure public safety; facilitate and police all legitimate protest; prevent public disorder and protect key buildings such as Buckingham Palace and the Houses of Parliament; prevent crime and take all reasonable steps to apprehend offenders if crime was committed; and generally minimise disruption. However, the police had little idea of what to expect or how they would react to it if and when it happened.

During the morning of 1 May 2001 there were a number of fairly small demonstrations across London. At around 1 p.m. demonstrators started gathering outside the offices of the World Bank in the Haymarket. They walked towards Piccadilly Circus then down Regent Street to Oxford Circus. By 2 p.m. it was estimated that there were over 1,500 people in Oxford Circus and that more were steadily joining them. A number of people moving up Regent Street were wearing face masks. The police intelligence had indicated that the gathering at Oxford Circus was to take place at 4 p.m. and the size of the crowd there at this time took them by surprise, with insufficient officers in the area to prevent more people entering the area.

At approximately 2 p.m. the police decided to put up a cordon to contain the crowd. The decision was based on the available intelligence, which had estimated that 500–1,000 individuals intent on violence would take part in the May Day protest and on what had occurred at previous similar demonstrations, rather than on the behaviour of the crowd up until that point. The decision was made in conscious exercise of common law powers to prevent a breach of the peace. Once the decision to put in a cordon was made, it took five to ten minutes to put in a loose cordon and, as more police officers arrived, 20 to 25 minutes to put in a full cordon. There was sufficient space within the cordon for people to walk about and there was no crushing. Nonetheless, as the afternoon progressed conditions became uncomfortable. The weather was cold and wet. No food or water was provided and there was no access to toilet facilities or shelter.

No announcement was made to the crowd when the cordon was first put in place because of police concern that it would not be strong enough to resist a concerted effort by the crowd to break through. The first announcement through the public address system was made at 4 p.m., informing the crowd that they were being contained to prevent a breach of the peace. It was accepted by the Police Commander in evidence before the domestic courts that the announcement to the crowd could have been made earlier, perhaps at 3.15 or 3.30 p.m.

At 2.25 p.m., five minutes after the full cordon was put in place, the Chief Superintendent commanding the operation planned to commence a controlled release from within the cordon up Regent Street North. However, release had to be delayed when members of the crowd both within and outside the cordon started to throw missiles and use violence against the police and when there was an attempt by the crowd to break through the cordon into Regent Street. At 2.55 p.m. a dispersal North was again planned but suspended because of violence by protesters on both sides of the cordon. At around this time more people started moving towards Oxford Circus to take part in the event which had been planned to take place there at 4 p.m. By 3.40 p.m. the police situation report was that officers were sandwiched between crowds, with pushing and shoving and bottles being thrown. At 4.30 p.m. there was a crowd of between 400 and 500 people outside the cordon following a samba band, which made dispersal into Oxford Street difficult. The situation was reviewed at 4.55 p.m. but collective release was ruled out because of the risk of violence and disorder. At 5.15 there was serious disorder in Oxford Street caused by a core of about 25 masked protesters which attracted a crowd of several hundreds. At 5.20 p.m. the crowd within the cordon were calm but the police were not willing to risk collective release because of the presence of other large, disorderly crowds nearby.

At 5.55 p.m. the decision was taken to disperse the crowd within the cordon. However, the crowd became violent again and at 6.15 the decision to release was reversed. At 7 p.m. release was commenced, with small groups and individuals being escorted away from the containment. However, at 7.20 p.m. the release was put on hold because of the difficulty in policing the crowds outside the cordon, some of whom were throwing large bits of masonry and burning missiles at the police, and because demonstrators released from the cordon were remaining in the vicinity. At 7.30 the collective dispersal was resumed, with additional police resources to escort those released from the cordon. However, the dispersal was soon halted again because it became apparent that those being released from Oxford Circus were joining another large crowd, which had previously been violent, to the North in Great Portland Street. By 8 p.m. Portland Place was clear and the collective release of the Oxford Circus crowd recommenced, in groups of ten. By 9.45 the dispersal was almost complete. Over 100 people were arrested as a result of the disorder in Oxford Circus and the surrounding area. It was part of the collective release policy to search some or all of those released, take a record of their names and addresses and photograph them.

The police estimated that there were a maximum of 2,000 people within the cordon at the peak time and 1,000 in the crowd outside it. Analysis of the documentary and video evidence admitted at trial indicated that, over the course of the afternoon, some 392 people were released individually. It was accepted that this figure was unlikely to be accurate, but Tugendhat J found that the number of individual releases was likely to be ‘nearer 400 than 200’. Of these, most were from the North and South sides of Oxford Circus, with very few people being released to the East and West. Most of the recorded releases were before 4 p.m.; 12 were between 4 p.m. and 5 p.m.; 89 between 5 p.m. and 6 p.m.; 59 between 6 p.m. and 7 p.m.; and 12 individual releases after 7 p.m. It was difficult for police officers to identify members of the crowd for individual release on the basis that they posed no threat of violence. Some of those released were identified in police records as being bystanders caught up in the demonstration. Others were described as being in physical distress, pregnant women, elderly people or children.

The judge concluded that, in the light of the violence which had occurred at previous demonstrations, the intelligence available to the police, the lack of co-operation from the organisers and the conduct of certain sections of the crowd, the police had reasonable grounds to believe that there was a real risk of damage to property, serious physical injury and even death. The main risks were from crushing and trampling, but there were also risks from missile throwing. Given the situation at Oxford Circus, if they were to prevent violence and injury, the police had no alternative at 2 p.m. but to impose an absolute cordon and this was, therefore, a proportionate response by the police to the presence of the crowd. The principal purpose of the containment was to ensure the safety of persons, including those within the cordon; the preservation of property in Oxford Street; and the protection of other rights of third parties. The police also intended to segregate some members of the crowd from others, if appropriate by asking them questions, or by searching them.

From 2.20 p.m., no-one in the crowd was free to leave without permission. The measure was a close confinement, with minimal liberty in Oxford Circus, and its effects were severe, increasingly so as time went by. However, it was never expected that the containment would last so long and the possibility of safely releasing the crowd was kept under review at all times.

It was not practicable for the police to release the crowd collectively earlier than they did. There were periods when the dispersal route was blocked by other crowds attempting to get into Oxford Circus. It would not have been reasonable or safe to allow these crowds to join each other without controlling their movement. In addition, there were long periods during which the police did not have the resources to provide for safe dispersal, and it was not suggested that the Commissioner of the Metropolitan Police could or should have made available more police officers than he did have on the streets that day. One reason the resources were inadequate was that a substantial proportion of the crowd was not co-operating with the police on the cordons around them. The judge estimated that about 40% were actively hostile at any given time, pushing and throwing missiles, and otherwise showing lack of co-operation. Those not pushing or throwing missiles were not disassociating themselves from the smaller minority who were. As a result the cordon had to be manned by enough officers to resist a concerted push by these people to break out. A co-operative crowd could have been contained by fewer officers, leaving others available to control the dispersal. The other reason why there were insufficient resources is that other crowds outside the containment were refusing to accept control by or directions from the police. The police were doing the best that they could in the most difficult circumstances. The resources they needed to control the dispersal of the crowd in Oxford Circus were necessarily and properly deployed elsewhere. That did not mean that the police had to allow the crowd in Oxford Circus to disperse without control. According to the judge, that would have been an abnegation of their duty to prevent a breach of the peace, and of their duty of care and the positive obligation incumbent upon them to protect the members of the crowd and third parties, including police officers, from the risk of serious injury, as well as to protect third parties from risk of damage to property.

In the circumstances that existed in Oxford Circus, and in particular the difficulty for the police to distinguish between peaceful and violent or potentially violent individuals within the cordon, the judge was unable to find any individual release policy, other than that applied, which would have been workable. Once the cordon was in place, any measure of controlled release was bound to have taken a considerable time before all the crowd were released. It was impossible to say how long it would have taken, if there had been no searches or evidence gathering, but it would have been more than a matter of twenty minutes. If a release was to be combined with searches and evidence gathering, it was bound to take as long as this one took from the time it restarted at 7.30 p.m., that is about one to two hours at least.

As regards the false imprisonment claim, Tugendhat J held that the defence of necessity was available and that the police action was necessary.

In connection with Article 5, the judge found that containment within the cordon amounted to deprivation of liberty within the meaning of Article 5 § 1. Although he found that there was never an intention on the part of the police to bring everyone contained at Oxford Circus before a judge, the purpose was to contain the crowd so that the police could arrest and bring before a judge all those they reasonably considered had committed offences and those whose arrest was necessary to prevent them committing offences, and that this was sufficient for the requirements of Article 5 § 1(c).

In addition, Tugendhat J found that, on the unusual facts of the case, there had been no interference with the rights of freedom of speech and assembly. None of the witnesses were able to explain what was the purpose of the procession to Oxford Circus or what it was proposed should have happened either there, or anywhere else, if the police cordon had not been imposed. He found that the literature distributed in advance by the organisers was intended to encourage at least a substantial minority of those present to engage in some form of disorderly and criminal activity, probably including public order offences such as affray, criminal damage and theft. If there had been no cordon, it would in practice have been impossible in this environment of disorder for anyone intending to carry out lawful acts of protest to do so. Moreover, there was no evidence that anyone at Oxford Circus intended to exercise any rights of speech that they did not in fact exercise. Tugendhat J therefore concluded that the case was about public order and the right to liberty, and not about freedom of speech or freedom of assembly, and he dismissed all the plaintiffs' claims.

Tugendhat J granted Ms Austin and Mr Saxby leave to appeal against his findings as regards the claims for false imprisonment and under Article 5 of the Convention. In a judgment delivered on 15 October 2007 ([2007] EWCA Civ 989), the Court of Appeal dismissed the appeal.

In connection with the claim for false imprisonment, the Court of Appeal held that, in order to prevent a breach of the peace threatened by others, the police could lawfully take action which interfered with or curtailed the lawful exercise of the rights of innocent third parties, but only where all other possible steps had been taken to avoid a breach of the peace and to protect the rights of third parties, and where the action taken was reasonably necessary and proportionate. Applying this test, in the circumstances of the demonstration at Oxford Circus, Ms Austin's containment was lawful because it was necessary to prevent an imminent breach of the peace by others.

In connection with the claim under Article 5, the Court of Appeal concluded that the detention did not amount to a deprivation of liberty. Sir Anthony Clarke MR, giving the judgment of the court, held as follows:

Ms Austin, like Mr Saxby, was granted leave to appeal by the House of Lords in connection with the issues under Article 5 § 1 of the Convention. The case was heard on 24 and 25 November 2008 and on 28 January 2009 a unanimous judgment was delivered, dismissing the appeal on the ground that Article 5 § 1 did not apply since the applicant had not been deprived of her liberty ([2009] UKHL 5).

Lord Hope of Craighead, with whom all the other Law Lords agreed, explained his approach to the interpretation of ‘deprivation of liberty’ as follows:

Lord Hope then reviewed a number of judgments and decisions of the Court and Commission, including X. v the Federal Republic of Germany, no. 8819/79, Commission decision of 19 March 1981, Decisions and Reports (DR) vol. 24, p. 158; Guenat v Switzerland, no. 24722/94, Commission decision of 10 April 1995, DR vol. 81-B, p. 13; H.M. v. Switzerland, no. 39187/98, ECHR 2002-II; Nielsen v. Denmark, 28 November 1988, Series A no. 144; Soering v. the United Kingdom, 7 July 1989, Series A no. 161; O'Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, ECHR 2007-III; N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008, and concluded:

Lord Neuberger of Abbotsbury agreed that there had been no deprivation of liberty, and observed as follows:

Lord Carswell agreed with Lord Hope and Lord Scott of Foscote agreed with Lords Hope and Neuberger, emphasising that ‘the purpose of the confinement or restriction and the intentions of the persons responsible for imposing it rank very high in the circumstances to be taken into account in reaching the decision’ whether there has been a deprivation of liberty.

Lord Walker of Gestingthorpe agreed with Lord Hope, but added as a ‘footnote’:

It is true, as the parties point out, that this is the first time that the Court has considered the application of Article 5 § 1 of the Convention in respect of the ‘kettling’ or containment of a group of people carried out by the police on public order grounds. In interpreting Article 5 § 1 in these circumstances, and in particular in determining whether there has been a deprivation of liberty, the Court draws guidance from the following general principles.

First, as the Court has underlined on many occasions, the Convention is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today (see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Kress v. France [GC], no. 39594/98, § 70, ECHR 2001-VI; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 75, ECHR 2002-VI; and, most recently, Bayatyan v. Armenia [GC], no. 23459/03, § 102, ECHR 2011). This does not, however, mean that to respond to present-day needs, conditions, views or standards the Court can create a new right apart from those recognised by the Convention (see Johnston and Others v. Ireland, 18 December 1986, §§ 51–54, Series A no. 112) or that it can whittle down an existing right or create a new ‘exception’ or ‘justification’ which is not expressly recognised in the Convention (see, for example, Engel and Others, cited above, § 57 and Ciulla v. Italy, 22 February 1989, § 41, Series A no. 148).

Secondly, the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X).

Given the context in which this containment measure took place in the instant case, the Court considers it appropriate to recall, for the sake of completeness, that Article 2 of Protocol No. 4 to the Convention guarantees the right to liberty of movement. It is true that the applicants did not invoke this provision, since the United Kingdom has not ratified Protocol No. 4 and is thus not bound by it. In the Court's view, however, taking into account the importance and purport of the distinct provisions of Article 5 and of Article 2 of Protocol No. 4, it is helpful to make the following reflections. First, Article 5 should not, in principle, be interpreted in such a way as to incorporate the requirements of Protocol No. 4 in respect of States which have not ratified it, including the United Kingdom. At the same time, Article 2 § 3 of the said Protocol permits restrictions to be placed on the right to liberty of movement where necessary, inter alia, for the maintenance of public order, the prevention of crime or the protection of the rights and freedoms of others. In connection with Article 11 of the Convention, the Court has held that interferences with the right of freedom of assembly are in principle justified for the prevention of disorder or crime and for the protection of the rights and freedoms of others where demonstrators engage in acts of violence (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 251, ECHR 2011). It has also held that, in certain well-defined circumstances, Articles 2 and 3 may imply positive obligations on the authorities to take preventive operational measures to protect individuals at risk of serious harm from the criminal acts of other individuals (Giuliani and Gaggio, cited above, § 244; P.F. and E.F. v. the United Kingdom, (dec.), no. 28326/09, § 36, 23 November 2010). When considering whether the domestic authorities have complied with such positive obligations, the Court has held that account must be taken of the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources (Giuliani and Gaggio, cited above, § 245; P.F. and E.F. v. the United Kingdom, cited above, § 40).

As the Court has previously stated, the police must be afforded a degree of discretion in taking operational decisions. Such decisions are almost always complicated and the police, who have access to information and intelligence not available to the general public, will usually be in the best position to make them (see P.F. and E.F. v. the United Kingdom, cited above, § 41). Moreover, even by 2001, advances in communications technology had made it possible to mobilise protesters rapidly and covertly on a hitherto unknown scale. Police forces in the Contracting States face new challenges, perhaps unforeseen when the Convention was drafted, and have developed new policing techniques to deal with them, including containment or ‘kettling’. Article 5 cannot be interpreted in such a way as 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 Saadi v. the United Kingdom [GC], no. 13229/03, §§ 67-74, ECHR 2008).

As mentioned above, Article 5 § 1 is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4. In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of Article 5 § 1, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance (see Engel and Others, § 59; Guzzardi, §§ 92–93; Storck, § 71, all cited above; and also, more recently, Medvedyev and Others v. France [GC], no. 3394/03, §§ 73, ECHR 2010).

As Lord Walker pointed out (see paragraph 37 above), the purpose behind the measure in question is not mentioned in the above judgments as a factor to be taken into account when deciding whether there has been a deprivation of liberty. Indeed, it is clear from the Court's case-law that an underlying public interest motive, for example to protect the community against a perceived threat emanating from an individual, has no bearing on the question whether that person has been deprived of his liberty, although it might be relevant to the subsequent inquiry whether the deprivation of liberty was justified under one of the subparagraphs of Article 5 § 1 (see, among many examples, A. and Others v. the United Kingdom [GC], no. 3455/05, § 166, 19 February 2009; Enhorn v. Sweden, no. 56529/00, § 33, ECHR 2005-I; M. v. Germany, no. 19359/04, 17 December 2009). The same is true where the object is to protect, treat or care in some way for the person taken into confinement, unless that person has validly consented to what would otherwise be a deprivation of liberty (see Storck, cited above, §§ 74–78, and the cases cited therein and, most recently, Stanev v. Bulgaria [GC], no. 36760/06, § 117, 17 January 2012; see also, as regards validity of consent, Amuur v. France, 25 June 1996, § 48, Reports of Judgments and Decisions 1996-III).

However, the Court is of the view that the requirement to take account of the ‘type’ and ‘manner of implementation’ of the measure in question (see Engel, § 59 and Guzzardi, § 92, both cited above) enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell (see, for example, Engel and Others, cited above, § 59; Amuur, cited above, § 43). Indeed, the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good. As the judges in the Court of Appeal and House of Lords observed, members of the public generally accept that temporary restrictions may be placed on their freedom of movement in certain contexts, such as travel by public transport or on the motorway, or attendance at a football match (see paragraphs 35 and 37 above). The Court does not consider that such commonly occurring restrictions on movement, so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose, can properly be described as ‘deprivations of liberty’ within the meaning of Article 5 § 1.

Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Subparagraphs (a)-(f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be compatible with Article 5 § 1 unless it falls within one of those grounds (see, amongst many other authorities, Al-Jedda v. the United Kingdom [GC], no. 27021/08, § 99, 7 July 2011). It cannot be excluded 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. In each case, Article 5 § 1 must be interpreted in a manner which takes into account the specific context in which the techniques are deployed, as well as the responsibilities of the police to fulfil their duties of maintaining order and protecting the public, as they are required to do under both national and Convention law.

The question whether there has been a deprivation of liberty is, therefore, based on the particular facts of the case. In this connection, the Court recalls that within the scheme of the Convention, it is intended to be subsidiary to the national systems safeguarding human rights (see A. and Others, cited above, § 154). Subsidiarity is at the very basis of the Convention, stemming as it does from a joint reading of Articles 1 and 19. The Court must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. As a general rule, where domestic proceedings have taken place, it is not the Court's task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them. Though the Court is not bound by the findings of domestic courts and remains free to make its own appreciation in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (Giuliani and Gaggio, cited above, § 180). Nonetheless, since pursuant to Articles 19 and 32 of the Convention it is the Court's role definitively to interpret and apply the Convention, while it must have reference to the domestic court's findings of fact, it is not constrained by their legal conclusions as to whether or not there has been a deprivation of liberty within the meaning of Article 5 § 1 (see, for example, Storck, cited above, § 72).

Tugendhat J's judgment at first instance followed a three week trial, during which he considered a substantial body of evidence about the events at Oxford Circus on May Day 2001, including oral testimony and documentary, video and photographic evidence (see paragraph 16 above). He found, inter alia, that the information available in advance to the police indicated that the demonstration would attract a ‘hard core’ of 500 to 1,000 violent demonstrators and that there was a real risk of serious injury, even death, and damage to property if the crowds were not effectively controlled. The police were expecting a crowd to form at Oxford Circus at around 4 p.m. and they were taken by surprise when over 1,500 people gathered there two hours earlier. In the light of the intelligence they had received and the behaviour of crowds at earlier demonstrations on similar themes, the police decided that, if they were to prevent violence and the risk of injury to persons and damage to property, an absolute cordon had to be imposed at 2 p.m. From 2.20 p.m., when a full cordon was in place, no-one in the crowd was free to leave the area without permission. There was space within the cordon for people to walk about and there was no crushing, but conditions were uncomfortable, with no shelter, food, water or toilet facilities. Throughout the afternoon and evening attempts were made by the police to commence collective release, but the violent and uncooperative behaviour of a significant minority both within the cordon and in the surrounding area outside led the police repeatedly to suspend dispersal. In consequence, full dispersal could not be completed until 9.30 p.m. However, the police permitted approximately 400 individuals who could clearly be identified as not being involved in the demonstration or who were seriously affected by being confined, to leave (see paragraphs 17–25 above). These findings were not disputed by the parties to the present proceedings and the Court sees no ground to depart from them. The first, second and third applicants were confined within the police cordon for approximately seven hours and the fourth applicant for five and a half hours.

The Court must analyse the applicants' concrete situation with reference to the criteria set out in Engel and Others and the subsequent case-law (see paragraph 57 above). Although there were differences between the applicants, in that the first applicant was present in Oxford Circus as a demonstrator whereas the other applicants were passers-by, the Court does not consider that this difference is relevant to the question whether there was a deprivation of liberty.

In accordance with the Engel criteria, the Court considers that the coercive nature of the containment within the cordon; its duration; and its effect on the applicants, in terms of physical discomfort and inability to leave Oxford Circus, point towards a deprivation of liberty.

However, the Court must also take into account the ‘type’ and ‘manner of implementation’ of the measure in question. As indicated above, the context in which the measure was imposed is significant.

It is important to note, therefore, that the measure was imposed to isolate and contain a large crowd, in volatile and dangerous conditions. As the Government pointed out (see paragraph 42 above), the police decided to make use of a measure of containment to control the crowd, rather than having resort to more robust methods, which might have given rise to a greater risk of injury to people within the crowd. The trial judge concluded that, given the situation in Oxford Circus, the police had no alternative but to impose an absolute cordon if they were to avert a real risk of serious injury or damage (see paragraph 26 above). The Court finds no reason to depart from the judge's conclusion that in the circumstances the imposition of an absolute cordon was the least intrusive and most effective means to be applied. Indeed, the applicants did not contend that, when the cordon was first imposed, those within it were immediately deprived of their liberty (see paragraph 48 above).

Moreover, again on the basis of the facts found by the trial judge, the Court is unable to identify a moment when the measure changed from what was, at most, a restriction on freedom of movement, to a deprivation of liberty. It is striking that, some five minutes after the absolute cordon was imposed, the police were planning to commence a controlled release towards the north. Thirty minutes later, a second attempt by the police to begin release was begun but suspended, because of the violent behaviour of those within and outside the cordon. Between about 3 p.m. and 6 p.m. the police kept the situation under review, but the arrival of a new group of protesters and the dangerous conditions within the crowds led them to consider that it would not be safe to attempt to release those within the cordon. Controlled release was recommenced at 5.55 p.m., but stopped at 6.15 p.m.; resumed at 7 p.m. and suspended at 7.20 p.m.; begun again at 7.30 p.m., again abandoned; then carried out continuously, by groups of ten, until the entire crowd had been released at 9.45 p.m. (see paragraph 24 above). Thus, the trial judge found the same conditions which required the police to contain the crowd at 2 p.m. persisted until about 8 p.m., when the collective release was finally able to proceed without interruption (see paragraph 24 above). In these circumstances, where the police kept the situation constantly under close review, but where substantially the same dangerous conditions which necessitated the imposition of the cordon at 2 p.m. continued to exist throughout the afternoon and early evening, the Court does not consider that those within the cordon can be said to have been deprived of their liberty within the meaning of Article 5 § 1. Since there was no deprivation of liberty, it is unnecessary for the Court to examine whether the measure in question was justified in accordance with subparagraphs (b) or (c) of Article 5 § 1.

The Court emphasises that the above conclusion, that there was no deprivation of liberty, is based on the specific and exceptional facts of this case. Furthermore, this application did not include any complaint under Articles 10 or 11 of the Convention and the Court notes the first instance judge's finding that there had been no interference with the Article 10 and 11 rights of freedom of expression and assembly of those contained within the cordon (see paragraph 32 above). It must be underlined that measures of crowd control should not be used by the national authorities directly or indirectly to stifle or discourage protest, given the fundamental importance of freedom of expression and assembly in all democratic societies. Had it not remained necessary for the police to impose and maintain the cordon in order to prevent serious injury or damage, the ‘type’ of the measure would have been different, and its coercive and restrictive nature might have been sufficient to bring it within Article 5.

In conclusion, since Article 5 is inapplicable, there has been no violation of that provision in this case.