Rioters’ rights: Police obligations under the European Convention of Human Rights during protests and demonstrations
Castle & Ors v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin) (8 September 2011)
Summary
The High Court of England and Wales has dismissed claims made on behalf of three school children that their containment at last year’s demonstrations in central London was in breach of their rights under the European Convention on Human Rights (‘EHCR’). The High Court held that the police action taken on the day, “having regard to the need to safeguard children and to promote their welfare, was necessary, proportionate and lawful”.
Facts
In the days preceding the demonstrations, the Defendant was notified of a public procession and received applications in relation to several demonstrations. At this planning stage, the Defendant enquired with school liaison officers as well as demonstration organisers about whether school children would be involved. They determined that there would not be a significant number.
On 24 November 2010, the claimants, then aged 16 and under, arrived at Trafalgar Square at around midday to take part in the demonstrations. At an early morning briefing to his team, the Defendant’s senior tactical commander instructed that if containment became necessary, “vulnerable people” were to be taken, or let, out.
Containment of the demonstrators was authorised shortly after midday due to perceived concerns about the commission of crimes and other breaches of the peace. Several reports of fighting and “unruly” behaviour had already been recorded. Containment was completed at around 1pm and shortly after a commander instructed for “vulnerable persons” to be identified as soon as possible. After this initial instruction, several other attempts were made to identify and remove “vulnerable persons”.
By around 4pm, toilet and water facilities were set up within the containment area. Although these were insufficient given the size of the containment, it was too late to order a further supply. During the course of the afternoon and evening, various incidents were recorded including the throwing of missiles, a police carrier being vandalised, robberies, the setting alight of a bus shelter and flares being lit.
At around 5:30pm a group of 50 young children, some school children, were released and a police helicopter that had been instructed to scan the crowd for vulnerable children reported that no obvious small children could be seen.
Small groups of children continued to be released and the claimants were released by 8.30pm.
Relying on the statutory duty of police to make arrangements for the welfare of children under the Children Act 2004, the claimants contended that there was a breach of their right to liberty under article 5 of the EHCR.
Decision
The Court received log book evidence from several police members as to the events taking place both inside and outside the containment and were satisfied that “the decision not to allow a general exodus from Whitehall was entirely justified” and further that the “continued anticipation of an imminent breach of the peace is supported by the evidence”.
The Court held that the Defendant discharged his rights under the Children Act 2004 due to the existence and implementation of a policy that provided for “vulnerable persons” to be identified and released as quickly as possible. Relevantly, the Court accepted evidence from the Defendant that the relevant officers understood “vulnerable persons” to apply to children.
The Court also rejected the claimants’ argument that the delay caused by weapons searches rendered the containment unlawful in duration. In doing so, it relied on evidence that significant numbers of protesters were armed and found that the instruction to search those leaving for arms was not “unnecessary, unreasonable or disproportionate”. Accordingly it was held that the containment was not prolonged for any unlawful purposes.
The Court cautioned in particular against placing too much emphasis on “the wisdom of hindsight”. It also stated that its conclusions were influenced by the “contents of contemporaneous records of police action and explanations for decision making”.
Having rejected the common law unlawful detention claims, the Court held that the claim under article 5 of the EHCR must also fail. In relation to other EHCR claims made by the claimants, the Court held it was “unnecessary for us to address those arguments since, as we find, any interference which did take place was for a legitimate reason, in accordance with the law, and proportionate to the legitimate aim of preventing an imminent breach of the peace”.
Relevance to the Victorian Charter
Although this decision does not have direct application to the Victorian Charter, it may be regarded by local courts as instructive when interpreting section 21, being the right to liberty and security of person. The High Court took into account the challenges that the police officers faced on the day of the demonstrations and placed great reliance on the records that were kept.
The decision highlights that individual rights may need to be balanced against the rights and safety of the broader community in the context of demonstrations. It also emphasised the importance of public authorities keeping contemporaneous records of their decision-making process in similar situations.
The decision can be found online at: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2317.html
Jenny Jiang is a Law Graduate with the Mallesons Stephen Jaques Human Rights Law Group