Austin and Another v Commissioner of Police of the Metropolis: CA 15 Oct 2007

The claimants appealed dismissal of their claims for false imprisonment and unlawful detention by the respondent in his policing of a demonstration. They had been held within a police cordon in the streets for several hours to prevent the spread of violence. One claimant had been simply there on business.
Held: The appeal failed. In exceptional circumstances it was lawful for the police to act in this way to prevent an imminent breach of the peace.
Sir Anthony Clarke MR summarised the effect of the speeches in Laporte on the issue of third parties’ rights: ‘As we read the speeches of Lord Rodger and Lord Brown they give some support for the following propositions:
i) where a breach of the peace is taking place, or is reasonably thought to be imminent, before the police can take any steps which interfere with or curtail in any way the lawful exercise of rights by innocent third parties they must ensure that they have taken all other possible steps to ensure that the breach, or imminent breach, is obviated and that the rights of innocent third parties are protected;
ii) the taking of all other possible steps includes (where practicable), but is not limited to, ensuring that proper and advance preparations have been made to deal with such a breach, since failure to take such steps will render interference with the rights of innocent third parties unjustified or unjustifiable; but
iii) where (and only where) there is a reasonable belief that there are no other means whatsoever whereby a breach or imminent breach of the peace can be obviated, the lawful exercise by third parties of their rights may be curtailed by the police;
iv) this is a test of necessity which it is to be expected can only be justified in truly extreme and exceptional circumstances; and
v) the action taken must be both reasonably necessary and proportionate.’
Sir Anthony Clarke MR
[2007] EWCA Civ 989, Times 29-Oct-2007, [2008] QB 660, [2008] 1 All ER 564, [2008] HRLR 1, [2008] 2 WLR 415, [2008] UKHRR 205
England and Wales
CitedLaporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
Appeal fromAustin and Another v The Commissioner of Police of the Metropolis QBD 23-Mar-2005
The claimants had variously been attending a demonstration in London, or passing through. The police detained them in a cordon for several hours. They sought damages. No unlawful acts were alleged against them.
Held: There was no deprivation . .
CitedZiliberberg v Moldova ECHR 1-Feb-2005
The court observed that: ‘the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society.’ it is possible to distinguish between interferences . .
CitedBlum and others v Director of Public Prosecutions and others Admn 20-Dec-2006
. .
CitedO’Kelly v Harvey 1882
(Court of Appeal in Ireland) The plaintiff, a nationalist Member of Parliament, sued the defendant for assault and battery. There had been a meeting which was to be held on 7 December 1880. On the day before, a placard appeared summoning local . .
CitedBeatty v Gillbanks QBD 13-Jun-1882
The appellants assembled with others for a lawful purpose, and with no intention of carrying it out unlawfully, but with the knowledge that their assembly would be opposed, and with good reason to suppose that a breach of the peace would be . .
CitedGuzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .

Cited by:
Appeal fromAustin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
CitedCastle and Others v Commissioner of Police for The Metropolis Admn 8-Sep-2011
The claimants, all under 17 years old, took a peaceful part in a substantial but disorderly demonstration in London. The police decided to contain the section of crowd which included the claimants. The claimants said that the containment of children . .

These lists may be incomplete.
Updated: 04 February 2021; Ref: scu.259838