Can pre-emptive detention, purely to prevent a person committing an offence or a breach of the peace, where they have not yet committed an offence, be lawful under Article 5 of the ECHR? In R (Hicks) v Commissioner of Police of the Metropolis  EWCA Civ 3 the Court of Appeal has said, “yes”: it may be lawful under Article 5(1)(c), provided that at the time of the arrest there is an intention to take the arrested person before the courts. It may also be lawful under 5(1)(b) in certain circumstances, not closely defined in the judgment.
Hicks is significant for two very different reasons:
- First, there are the obvious consequences for everyday policing when dealing with pre-emptive arrests to prevent a breach of the peace. This scenario is particularly relevant to public order situations.
- Secondly, the case deals in detail with the wider issue of how the domestic courts are to apply decisions of the European Court of Human Rights, particularly where those decisions appear to conflict with national law – a topic that is popular in the press at the moment.
For ease of reference, the relevant parts of Article 5 ECHR state:
1. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.
3. Everyone arrested and detained in accordance with the provision of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to a trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
For the purposes of considering the Hicks case, the distinction to bear in mind is the difference between:
- An arrest said to be lawful under 5(1)(b) for the purpose of securing the fulfilment of a legal obligation; and
- An arrest said to be lawful under 5(1)(c) as necessary to prevent a person committing an offence.
The Claimants / Appellants were members of a number of different groups that were present in Central London on the day of the Royal Wedding of the Duke and Duchess of Cambridge on 29 April 2011. All were arrested by Metropolitan Police officers, the reason given being to prevent a breach of the peace. They were all released on the same day, once the threat of a breach of the peace was said by the police to have passed. None were brought before Magistrates, and none were bound over.
In the original judicial review proceedings the arrests were challenged on the grounds that they were unlawful both in domestic law (as there were no reasonable grounds to apprehend an imminent breach of the peace) and under Article 5. In a detailed judgment, the Divisional Court found that, in relation to each Claimant, there were reasonable grounds to apprehend an imminent breach of the peace, and the arrests were in accordance with Article 5(1). The Divisional Court was of the view that Article 5(1)(c) was “far better suited” to cover the situation than Article 5(1)(b).
The Claimants appealed solely in relation to Article 5. They argued that the arrests were unlawful as Article 5(1)(c) required that, where people were arrested to prevent them from committing an offence, the purpose in arresting the person must be to bring them before the competent legal authority i.e. the Magistrates’ Court. The Claimants argued that the police had no such intention or purpose, nor was there any attempt to do so when they were arrested.
The first hearing in the Court of Appeal did not result in a ruling. Prior to judgment being handed down, the Court of Appeal was alerted to a highly relevant decision of the ECtHR on Article 5 in Ostendorf v Germany (Application 15598/08). Further written submissions resulted in the Court of Appeal deciding to reconvene for further, detailed oral argument on the impact of Ostendorf.
Ostendorf v Germany
Ostendorf v Germany concerned the arrest of a known problem football supporter. He was on his way to a high profile football match and had been in a group which had been given directions by the Police over where they could go etc, in order to avoid violent confrontations between rival supporters. In an apparent bid to evade the policing operation, Herr Ostendorf hid in a pub toilet. He was found, arrested and detained for about four hours (until an hour after the match had ended).
The Strasbourg Court found that Herr Ostendorf’s arrest was lawful under Article 5(1)(b), but not under 5(1)(c).
Where Article 5(1)(b) is relied upon to justify a pre-emptive arrest, the legal obligation said to apply to an individual must be ‘very closely circumscribed’. The place and time of the imminent commission of the offence and its potential victim(s) must be sufficiently specified. A general obligation to keep the peace is not sufficient to justify arrest under Article 5(1)(b).
On the facts of Ostendorf, the ECtHR found that the legal obligation was indeed sufficiently specified. Herr Ostendorf was to be prevented from arranging a brawl between Bremen and Frankfurt am Main hooligans in the hours before, during or in the hours after the football match on 10 April 2004 in the city of Frankfurt or its vicinity and from committing offences including bodily assaults and breaches of the peace during such a brawl.
In order to ensure under 5(1)(b) that individuals are not subjected to arbitrary detention, it is necessary, prior to concluding that a person has failed to satisfy his obligation at issue, that the person concerned (1) was made aware of the specific act which he or she was to refrain from committing and (2) that the person showed himself or herself not to be willing to refrain from so doing. On the facts, Herr Ostendorf had been ordered to stay with the group of supporters he had arrived with warned, and had been warned in a clear manner of the consequences of his failure to comply with that order, as the police had announced that any person leaving the group would be arrested.
The real problem that Ostendorf v Germany posed for the Court of Appeal in Hicks was that it looked at, but failed to identify or resolve, two conflicting streams of ECtHR decisions in relation to the issue of whether or not Article 5(1)(c) can be relied upon to support the pre-emptive arrest of someone who has not yet committed an offence at all, or whether it is confined to the denial of bail to someone who is charged with already having committed an offence, in order to prevent the commission of further offences whilst on bail.
In Ostendorf the ECtHR considered a number of cases, including Lawless v Ireland (No 3) (1961) 1 EHRR 15, Brogan v United Kingdom (1989) 11 EHRR 117 and Jecius v Lithuania (2002) 35 EHRR 16. It concluded that that Article 5(1)(c) permits deprivation of liberty “only in conjunction with criminal proceedings” and that Article 5(1)(c) “governs pre-trial detention”. In doing so, the Court in Ostendorf purported to follow paragraph 50 of the decision Jecius, which had itself purported to follow Lawless.
Court of Appeal: Article 5(1)(c)
The Court of Appeal in Hicks did not accept that Ostendorf was the last word on Article 5(1)(c). It noted that there was a parallel line of cases, including Steel v United Kingdom (1998) 28 EHRR 603 and the admissibility decision in Nicol and Selvanayagam v United Kingdom (Application No32213/96), where the Strasbourg Court had accepted the lawfulness of “the initial detention” even though, at that time, the express and only purpose for arrest was recorded in preventative terms – “to allow a period of calming and to determine method of processing”.
The Court of Appeal also observed that the paragraph of Jecius relied upon in Ostendorf did not merit the significance attached to it, as that paragraph had not been dealing with preventative detention. In addition, the Court of Appeal emphasised that a wider interpretation of the exception in Article 5(1)(c) would not lead to arbitrary detention on any significant scale (or for a significant time) due to the obligation to bring all arrested persons before a Court within a reasonable time, as set out in Article 5(3).
The Court of Appeal asked itself what a national court was to do when faced with an ECtHR decision with which it clearly disagreed, and a line of authority in the ECtHR which would appear to lead to a different conclusion. Paragraph 80 of the judgment sets out clear guidelines:
“…(1) It is the duty of the national courts to enforce domestically enacted Convention rights.
(2) The ECtHR is the court that, ultimately, must interpret the meaning of the Convention. (3) The UK courts will be bound to follow an interpretation of a provision of the Convention if given by the Grand Chamber as authoritative, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which, properly explained, would lead to that interpretation being reviewed by the ECtHR when its interpretation was being applied to English circumstances.
(4) The same principle and qualification applies to a “clear and constant” line of decisions of the ECtHR other than one of the Grand Chamber.
(5) Convention rights have to be given effect in the light of the domestic law which implements in detail the “high level” rights set out in the ECHR.
(6) Where there are “mixed messages” in the existing Strasbourg case law, a “real judicial choice” will have to be made about the scope and application of the relevant provision of the Convention.”
The Court of Appeal concluded that Ostendorf was neither a decision of the Grand Chamber, nor was it indicative of “clear and constant” Strasbourg jurisprudence (save that the arrest or detention must, in all three categories set out in Article 5(1)(c) be “effected for the purpose of bringing him before the competent legal authority”). It decided it was not bound to follow it.
Having reached this decision, the Court of Appeal stated that it would adopt the interpretation of the wording of Article 5(1)(c) that it would have reached without regard to the Strasbourg case law, and which is consistent with Lawless, Brogan and Steel and (save for the “purpose” requirement) Nicol.
The Court of Appeal concluded that, in relation to Article 5(1)(c) it had to ask itself two questions:
- First, were the arrests and detentions in the present case permissible on the ground that it was “reasonably considered necessary to prevent the appellants from committing an offence”? . On this point, the finding of the Divisional Court was that, in each case, it was reasonably considered necessary due to an imminent breach of the peace, and that this finding had not been appealed.
- Secondly, at the outset of deprivation of liberty, were the relevant police officers effecting the arrests for the purpose of bringing the persons before the competent legal authority when it was considered reasonably necessary in order to prevent them from committing an offence? . On this point, “the fact that none of the appellants was taken before the magistrates’ court and all were released a few hours later does not necessarily resolve these appeals in their favour” . The Court of Appeal found that there was sufficient evidence on which it could safely conclude that the Appellants were arrested and detained “for the purpose of bringing them before the competent legal authority”, if that were to become necessary .
Court of Appeal: 5(1)(b)
Having decided it would not follow Ostendorf on its interpretation of Article 5(1)(c), the Court of Appeal noted at  that, “Ironically, Ostendorf has strengthened the respondents’ case on Article 5(1)(b).”
Summarising the decision in Ostendorf, it was observed at  that the ECtHR:
“….held that the detention of the applicant for four hours was no longer than was necessary in order to prevent him from taking further steps to organising a hooligan brawl. His deprivation of liberty was therefore justified under Article 5(1)(b)”
And, applying that reasoning to the facts of the case, continued at  that:
“It is plain that such an approach has the potential to permit reliance on Article 5(1)(b) in circumstances such as those which existed in central London on 29 April 2011.”
The Court of Appeal observed that where a member of the public had been made aware of the specific act which he or she was to refrain from committing, and there was evidence of an unwillingness to refrain from doing so, this might be a route to finding that a subsequent arrest was lawful under Article 5(1)(b). Somewhat ominously, at  it concluded in relation to Article 5(1)(b), “…if its potential is to be seized upon, it will be more appropriate for it to be litigated in a witness action.” Once again, watch this space…