Dear Colleagues;

On reflection I think I was more than usually obscure in the point I

wanted to make at (2) in my previous post.

What I meant was, while an article 5 breach on my reading of Austin

requires a very severe "deprivation of liberty" (their Lordships come

pretty close to suggesting not much short of actually being locked up in

prison will do), the common law tort of false imprisonment requires (for

there to be a prima facie action) only a lesser restriction on movement.

But now that I think about it that is not a very good way of putting it.

Bird v Jones says that the essence of false imprisonment is "total

restraint of liberty". Still, it seems pretty clear that this type of

restraint can occur in situations short of an art 5 "deprivation of

liberty"- such as, it seems clear to me, the situation of the protestors

here, which was that they could not leave the square for 8 hours.

Regards

Neil F

Neil Foster

Senior Lecturer & LLB Program Convenor

School of Law

Faculty of Business & Law

University of Newcastle

Callaghan NSW 2308

AUSTRALIA

ph 02 4921 7430

fax 02 4921 6931

>>> Neil Foster <Neil.Foster@newcastle.edu.au> 01/29/09 12:27 PM >>>

Dear Colleagues;

So it seems to me that

(1) the reason that the plaintiff wanted to argue there had been a

"deprivation of liberty" under Art 5 was that there is a case from a

while ago, Lawless v Ireland (No 3) (1961) 1 EHRR 15, which precludes

the use of the very limited exceptions contained in art 5 (a) to (f) in

this sort of case;

(2) there seems little doubt that she had a good prima facie case in the

common law tort of false imprisonment, as the mere restriction of

freedom of movement was enough to require that restriction to be

justified;

(3) however, in an action for false imprisonment the police could have

offered "justification" either in terms of preventing a breach of the

peace generally, or just because they were in the process of allowing

people to leave but in the circumstances just couldn't do it

immediately. (If you enter a train for a trip you can't complain if they

don't stop the train and let you out when you suddenly change your mind

between stations; see also Herd v Weardale Steel Coke and Coal Co [1915]

AC 67 where the miner had to wait until the end of the next shift to be

taken up by the lift.)

Regards

Neil F

 

Neil Foster

Senior Lecturer, LLB Program Convenor

Newcastle Law School

Faculty of Business & Law

MC158, McMullin Building

University of Newcastle

Callaghan NSW 2308

AUSTRALIA

ph 02 4921 7430

fax 02 4921 6931

>>> Robert Stevens <robert.stevens@ucl.ac.uk> 29/01/09 12:13 >>>

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 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:

Law School

University of Exeter

Rennes Drive

Exeter EX4 4RJ

England

Phone:

Tel:             01392-263189 (int +44-1392-263189)

Fax:             01392-263196 (int +44-1392-263196)

Cellphone:       07870-130528 (int +44-7870-130528)

LAWYER, n.

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

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