Site menu:

Site search

Get Updates

Enter your email address to hear about new posts. (You can view my privacy policy here.)


 

RSS Recent Posts

Archives (month)

Topics

Court takes a liberty with our freedom

The European Court of Human Rights has decided today that police “kettling” of crowds – holding them within a police cordon for hours at a time – does not deprive them of their liberty.

It is as if the continuous nature of time flummoxed the judges

This was a difficult case for several reasons. Firstly, those held within the “kettle” were not just the demonstrators whose behaviour had caused the police to become concerned for public order. The containment included several passers-by who had inadvertently become caught up in it. Indeed, three of the four applicants whose case was dismissed by the Court were passers-by and only one was a demonstrator.

A further difficulty – and this is what makes the decision so insidious – is that the court was faced with what three of the judges called the “paradox” that, if the court concluded that the containment was indeed a deprivation of liberty, it would have to be declared illegal, because none of the permitted reasons for depriving a person of their liberty applied in this case.

The permitted reasons for depriving a person of their liberty include, fairly obviously, punishing those convicted of a crime and detaining those suspected of a crime. But the reasons don’t – so the Court tells us – stretch to the circumstances in which any of the four applicants in this case were held. So there was no scope for the court to decide whether, in the circumstances, the deprivation of liberty was acceptable, for example to restore public order. The kettle was either illegal or it wasn’t a deprivation of liberty: there was no other option open to the court.

Three of the 17 judges concluded that it was a deprivation of liberty.  These dissenting judges concluded that “The majority’s position … [is] that if it is necessary to impose a coercive and restrictive measure for a legitimate public-interest purpose, the measure does not amount to a deprivation of liberty. This is a new proposition which is eminently questionable and objectionable”.

The dissenting judges give reasons why the proposition is questionable and objectionable, in particular that the aim or intention of a measure cannot be taken into account in assessing whether it amounts to a deprivation of liberty. This is entirely logical: the intention goes to the question of whether the deprivation of liberty is justified, but not in deciding whether, as a matter of fact, liberty has been deprived.

As noted above, the intention behind kettling is not one of the permitted reasons for depriving a person of their liberty, so the 14 judges who wanted to find in favour of kettling could do so only by finding that it wasn’t a deprivation of liberty in the first place. But how could they reach such a conclusion when, on the evidence before them – accepted by the Court – people were held within a cordon for over seven hours in circumstances where “as the afternoon progressed conditions became uncomfortable. The weather was cold and wet. No food or water was provided and there was no access to toilet facilities or shelter”?

See also:  Accountants becoming effective?

The basis for the conclusion that this was not a deprivation of liberty is contained in the following passage:

“… where substantially the same dangerous conditions which necessitated the imposition of the cordon at 2 pm continued to exist throughout the afternoon and early evening, the Court does not consider that those within the cordon can be said to have been deprived of their liberty”.

But the words “which necessitated the imposition of the cordon” are fatal to the logic. They speak of need – the aim or intention of the cordon – not its effect on the liberty of those held within it.

The disturbing nature of the 14 judges’ reasoning did not stop there. They said they were “unable to identify a moment when the measure changed from what was, at most, a restriction on freedom of movement, to a deprivation of liberty [because] substantially the same conditions which required the police to contain the crowd at 2 pm persisted until about 8 pm, when the collective release was finally able to proceed”.

The dissenting judges’ were noticeably unimpressed by this reasoning:

“It is unclear what this observation means. Does it mean that there was no deprivation of liberty before 9.30 pm or that the situation became a deprivation of liberty between 2 and 9.30 pm but the precise moment cannot be pinpointed?”

It is as if the continuous nature of time has flummoxed the majority of the judges. The fact that we cannot determine a precise moment when something turned from good to bad does not mean that it can never be declared bad. (Think of a piece of fruit.) The same is true of something which starts imperceptibly. We cannot declare a status not to exist, just because we cannot identify the precise moment it came into being.

I have written about this before. Frogs and investors can be quite stupid when faced with the concept of continuity. We expect better from our senior judges.

Sign up for updates by Email, Twitter or RSS Feed.

See also:  Banking on it

Related articles on this website
I’m not sure quite how to say this. So I’ll say it twice:Yesterday, a young graduate won her claim against the government’s back-to-work scheme. She argued that the regulations and ...
Read the complete article
I keep hearing that last Friday's agreement between the UK and the EU 27 means that a hard Brexit is off the table. Well, I'm looking at the table and ...
Read the complete article
What are the chances of being able to write a 2,000 page report on press regulation and walk away with all-party support (or even all-Party support)? Plainly, not very high. ...
Read the complete article
The press are against statutory regulation of their activities. That is the message they have been sending to the Leveson Inquiry. But most people fear that, without a legislative underpinning, ...
Read the complete article
Like many people, I have been following The Leveson Inquiry intermittently. As someone with a background in regulatory policy, I am particularly interested in the way that many witnesses have ...
Read the complete article
The European courts have been causing controversy (again). Judgements handed down in Brussels and Strasbourg have left conservatives (small “c”) aghast and Liberals (big and small “L”) defending the rights-based ...
Read the complete article
The Conservative Party has published plans to change Britain’s human rights law. They have been criticised by many lawyers. But, whilst the politicians may have got the law wrong, many ...
Read the complete article
Much has been written about the Government’s appeal to the Supreme Court in the Brexit case. Political commentators tell us that the appeal is very likely to fail. Many lawyers ...
Read the complete article
Journalists in a tiz at Supreme Court’s win-win decision
Hard Brexit is dead. Long live … hard Brexit
Leveson – Is the battle already lost?
Leveson could legislate for a non-statutory regulator
Leveson and the Living Trees
What equal pay teaches us about the Human Rights Act
It’s lawyers v politicians in the battle for human rights
Brexit: supreme logic required