Police Law Blog European Decisions Statutory Materials

Supreme Court decision on breach of peace in Hicks affirmed by European Court of Human Rights

In the case of Eiseman Renyard and Others v United Kingdom (2019) Application no. 57884/17, the European Court of Human Rights has declined to disturb the decision of the Supreme Court in R (Hicks) v Comr Metropolitan Police[2017] UKSC 9; [2017] AC 256, concerning the arrest and detention of royal wedding protesters, for breach of the peace.

As stated in the blog post discussing the decision of the Supreme Court, the police arrested a number of individuals on 29th April 2011, which was the day of the royal wedding, took them into police custody and released them without charge once the pageant was over. The justification was that the arrests were said to be necessary to prevent an imminent breach of the peace – the violent disruption of the wedding. No-one was brought before a court as foreseen by Article 5(1)(c) of the Convention.

Both the Court of Appeal and the Supreme Court declined to follow the majority decision of the fifth section of the ECHR in Ostendorf v Germany [2013] ECHR 197; (2013) 34 BHRC 738. In that case, a person was arrested, detained and then released after one hour, pursuant to public security legislation that permitted a person’s being taken into custody to prevent an imminent commission of a criminal offence. The majority of the court held that article 5(1)(c) permitted only pre-trial detention, not custody for preventative purposes and that the purpose of bringing a person before a court was for the purpose of trial rather than to determine the legality of the preventative detention.

Instead, both English courts followed the minority judgments, which said that a person could be brought before a court to determine the lawfulness of the detention itself.

The European Court has now considered the Supreme Court decision and, in agreement with it, found no breach of article 5. Its decision was as follows:

  • Article 5 requires that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. That means any offence should be concrete and specific as regard the place and time of its commission. There must be facts or information which would satisfy an objective observer that the person concerned would, in all likelihood, have been involved in the concrete and specific offence had its commission not been prevented by detention; [42]
  • The offence of breach of the peace was sufficiently concrete and specific in the circumstances; [43]
  • An objective observer would be satisfied that the applicants would in all likelihood have been involved in the concrete and specific offence had its commission not been prevented by their detention; [43]
  • The applicants had been released as soon as the imminent risk had passed and their detention was for a matter of hours, which was broadly appropriate in the context of preventative detention; [43]
  • There was nothing arbitrary about the decisions to arrest, detain and release the appellants. They were taken in good faith and were proportionate to the situation [45].

Arrest and detention for breach of the peace remains an issue on which police officers’ knowledge can sometimes be a bit shaky. It would, no doubt, help front-line officers and members of the public for these principles to be made clear to them.

Follow @EGoldLdn