Dear All,

I've now read the judgments in Austin, and don't share Andrew's fears. The

appellant lost in the Court of Appeal not because she couldn't establish

that the police had imprisoned her, but because the Court of Appeal found

that the police had acted lawfully in imprisoning her in order to prevent a

breach of the peace.

When it came to bringing the case in the House of Lords, it seems that it

was agreed on both sides that whether or not the police acted lawfully in

imprisoning the appellant depended on whether the police action violated

the appellant's rights under Art 5(1) of the ECHR. (The crucial paragraph

is para [11] in Lord Hope's judgment.) Whether or not it was correct to

agree that, the appellant cannot be taken to have agreed that if the police

action did not deprive her of her liberty under Art 5(1), she could not

claim that she had been imprisoned by the police (for the purposes of

bringing a claim for false imprisonment). She clearly was imprisoned: the

only issue was whether the police acted unlawfully in imprisoning her.

So if I lock my students in my room for 20 minutes to harangue them about

their performance, there's nothing in the Austin case that suggests, or

implies, that they can't sue me for false imprisonment. The fact that my

locking them in my room for 20 minutes may not have 'deprived' them of

their 'liberty' under Article 5(1) won't stop a court finding that I

imprisoned them, for the purposes of the law on false imprisonment. My

liability will then turn on whether or not I had a lawful justification for

detaining them for 20 minutes. In Austin the courts found that the police

had a lawful justification for imprisoning the appellant, because they were

acting to prevent a breach of peace, and the police exercised those powers

in a way that didn't violate the appellant's rights under the ECHR. But in

other cases - including ones involving the police, where they are not

acting to prevent a breach of the peace - a lawful justification will be

much harder (or, in the case of my locking my students in, impossible) to

establish.

So Austin was, in the end, a case about the scope of police powers; not a

case (either in the result, or in the concessions that were made in

argument) about the scope of the tort of false imprisonment.

Nick McBride

--On 28 January 2009 13:13 +0000 Robert Stevens <robert.stevens@ucl.ac.uk>

wrote:

>

> Neither the concession by the appellant nor by the respondent was rightly

> made, but the only one which had any significance was the concession by

> the appellant (if the respondent's concession was wrong, they would be

> liable anyway under the Act). It simply does not follow that if there is

> no violation of Article 5 there is no false imprisonment. This is,

> obviously, true of non-state actors, who cannot be liable for violation

> of Article 5, but it is also true of the police. It is to be hoped that

> the appellant's concession, which was either wrong or made for reasons

> which are obscure, does not have the significance Andrew fears.

> Rob

>

>

> __________________________________________________

> From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk]

> Sent: 28 January 2009 11:00

> To: obligations@uwo.ca

> Subject: False imprisonment and the common law in the HL

>

>

> 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

>

>

>

> Snailmail:

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>

>

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>

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>

>

>

> LAWYER, n.

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

>