Preventative detentions during royal wedding not a breach of rights to liberty and security, European Court of Human Rights holds
Eiseman-Renyard v the United Kingdom (European Court of Human Rights, First Section, Application No 57884/17, 5 March 2019)
Summary
On 5 March 2019, the European Court of Human Rights (First Section) (the Court) declared inadmissible the applications of eight individuals who claimed that their arrests and subsequent detentions in London during Prince William and Catherine Middleton's wedding were a breach of their rights to liberty and security under art 5(1) of the European Convention on Human Rights (the Convention).
Facts
On 29 April 2011, the Duke and Duchess of Cambridge were to be married. With members of the Royal Family, foreign royalty and other heads of state in the city and thousands of citizens flocking to the streets, central London was a hive of activity. The threat level from international terrorism at the time had been assessed as "severe".
Prior to and during the wedding, police monitored the situation closely.
Various republican and other campaign groups organised events in protest of the wedding. These included a "Not the Royal Wedding" street party, a "zombie picnic" and a demonstration at Trafalgar Square.
The eight applicants were arrested in various locations while travelling to at least one of these events. The arrests were made "in order to prevent an imminent breach of the peace". The applicants were taken to different police stations and were held for periods ranging from between two and a half to five and a half hours.
All were later released without charge once the wedding had concluded.
Decision
The Court's decision followed nearly eight years of litigation.
The applicants relied on arts 5(1)(b) and (c) and argued that their detention was not compatible with the Convention.
Article 5 of the Convention relevantly reads:
“1. Everyone has the right to liberty and security of person. 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;
..."
The Court found that the detentions did not breach the applicants' rights to liberty and security because it was justified under art 5(1) (c) of the Convention.
Secure fulfilment of an obligation prescribed by law (art 5(1)(b))
The Court did not accept that the police arrested and detained the applicants in order to secure the fulfilment of an obligation prescribed upon the applicants by law. Therefore, their detention was not justified by art 5(1)(b) of the Convention.
In coming to this conclusion, the Court reasoned that the applicants were not:
given any specific orders;
given a clear warning of the consequences of their failure to comply with any order; or
told by police which specific act they were to refrain from committing.
The Court also made reference to a finding of the Grand Chamber in a separate matter that "a wide interpretation of sub-paragraph (b) of Article 5(1) would entail consequences incompatible with the notion of the rule of law …" (at [35]).
The Court therefore turned to the question of whether art 5(1)(c) might justify the arrests.
Reasonably necessary to prevent the commission of an offence (art 5(1)(c))
To justify the arrests under art 5(1)(c), the Court needed to consider lawfulness. The applicants did not dispute that their detention was lawful under domestic law. However, the Court noted that compliance with national law alone is not sufficient. Article 5(1) additionally requires any deprivation of liberty to be in keeping with protecting the individual from arbitrariness. The Court stated (at [42]) that to satisfy this requirement in the present case:
"…the offence should be concrete and specific as regards, in particular the place and time of its commission and its victims and that the authorities must furnish some 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 the detention".
The Court held that the offence of breach of the peace was sufficiently concrete and specific in each of the applicants' circumstances. It found that an objective observer would be satisfied that the applicants would have likely been involved in a breach of the peace had the arrests not been effected, taking account of the "factual background" of the crowds and international interest associated with the royal wedding along with the "severe" terror threat level.
It also noted that the applicants were released "as soon as the imminent risk had passed" and that the detention had been for a "matter of hours", which the Grand Chamber had identified as being "broadly appropriate" in the context of preventive detention in S, V and A v Denmark.[1]
It therefore found no reason to depart from the findings of the domestic courts.
Commentary
In its judgment, the Court made reference to the inherent balancing act in art 5. Namely, appropriately balancing individuals' protection from arbitrary detention and allowing police to maintain public order and protect the public. The question is whether the decision regarding art 5(1)(c) of the Convention tips the scales too far in favour of police powers.
This decision sets a worrying precedent for police to pre-emptively arrest potential protestors by reference to what they are wearing. This is problematic for two reasons:
it severely limits protest and the associated rights to freedom of expression and association; and
it subjects people to arrest and detention with little evidence they intended to commit a crime, even where that crime is minor (e.g. breach of the peace).
Two applicants dressed as zombies were arrested while sitting in a coffee shop apparently because of intelligence regarding the zombie picnic event. Their dress alone provided grounds for pre-emptive arrest. As one applicant claims to have told an arresting police officer:
"…if dressing like a zombie was a breach of the peace then I breached the peace every hallowe’en".[2]
In addition, many Western countries have had high terror threat levels in place for some time. If this were to be taken into account as part of the background in every arrest in such countries, this could worryingly broaden the general ambit of police powers.
In this case, individuals' appearances and the factual background took precedence over the threat that the individuals actually posed. This represents a worrying shift in the balance between individual freedoms and police powers, where circumstance and suspicion appear to have overpowered freedom and due process.
Read the full decision here.
[1] (European Court of Human Rights, Grand Chamber, Application Nos 35553/12, 36678/12 and 36711/12, 22 October 2018).
[2] Hannah Chutzpah, 'Blog: Royal Zombie Flashmob Arrests', Hannah Chutzpah (Blog Post, 30 April 2011) <https://hannahchutzpah.com/2011/04/30/royalweddingzombie/>.