It may be unfortunate, but perhaps there was nothing surprising about the false imprisonment case of Austin v Met Police [2009] UKHL 5 on the HL website this morning.

A large crowd, including those bent on mischief but enveloping those bent on shopping, gathered in Oxford Circus during an anti-globalism protest. The police prevented anyone from leaving the square for 8 hours (!!) on the pretext that public safety demanded it. One of the innocent bystanders detained sued for false imprisonment. She succeeded at first instance, but failed in the CA and the HL. At issue was the common law of false imprisonment and Art 5 (the freedom section) of the ECHR.

So what, you might think: the police have always had power to prevent a breach of the peace (though this does seem rather heavy-handed). But what's interesting is the way the case was argued in the HL. There both sides admitted that it was really an Art 5 case: if Art 5 was infringed there was false imprisonment, and if it wasn't there wasn't.  The HL duly held that it wasn't.

Besides "human-rights-ifying" what in the old days was a straightforward common law case, replacing old-fashioned rights (pro-individual) with an open-ended balancing of interests (statist), this looks a worrying development. The ECHR, after all, wasn't designed to go as far as the protection of rights afforded in individual states. It was meant to set a minimum standard, not the standard. And indeed the this is true in spades of Art 5. The common law says you should be free to go where you want, pretty well period. Art 5 says (effectively) that deprivation of liberty means prison, close arrest or something like it, and that anything short of that doesn't interest it much. It seems to me that the HL, by effectively sgreeing that false imprisonment is now co-extensive with Art 5, may well have inadvertently deprived it of many of its teeth.

In short, while in the old days the citizen won in tort unless the police could show clear justification, these days we're moving towards a situation where the citizen is apt to lose unless he can show  his human rights were infringed. Or, to put it another way, while tort used to protect rights better than the ECHR did, the effect of the incorporation of the Convention has if anything been to reduce our rights to the minimum the government has to give us by treaty. What irony!

Andrew

-- 
Andrew M Tettenborn
Bracton Professor of Law, University of Exeter



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LAWYER, n. 
One skilled in circumvention of the law. (Ambrose Bierce, 1906).