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R (Hicks) v Commissioner of Police for the Metropolis

It was lawful for the police to detain persons to prevent a breach of the peace and to release them once the risk had disappeared without bringing…

Supreme Court (Lords Mance, Reed, Carnwath, Toulson and Dyson)
15 February 2017

Executive summary

It was lawful for the police to detain persons to prevent a breach of the peace and to release them once the risk had disappeared without bringing them before a competent court. Such action did not breach Article 5 of the European Convention on Human Rights (ECHR).

Background                                           

On the day of the Royal Wedding on 29 April 2011 the police became aware of planned activities aimed at disrupting the celebrations. The four claimants were arrested in the reasonable belief that it was necessary to prevent an imminent breach of the peace. They were taken to police stations but then released when it was judged that the risk of the breach of the peace had passed, having been detained for periods ranging from about 2½  to 5½ hours.

Article 5 (c) of the ECHR permits detention for the purpose of bringing a person before a competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent commission of an offence.

The claimants argued that their arrests were unlawful because they were released without being brought before a competent authority. The Administrative Court disagreed, reasoning that this step was only required where a person was arrested on reasonable suspicion of having committed an offence. The Court of Appeal reached the same decision but for different reasons, stating that the claimants would have been taken to court had the situation deteriorated and their detention continued to the point where it would have been practical to do so. The appellate court concluded that the detention was ‘for the purpose of bringing [the claimants] before the competent legal authority.’

The decision

The Supreme Court paid particular attention to the Strasbourg case of Ostendorf v Germany. The facts were similar: a suspected football hooligan was detained during a match to prevent violence and released after the game without any court appearance.

The European Court read Article 5 in two ways. The majority held that the arrest fell under 5(b) and was to secure an obligation prescribed by law, so the need to bring before a court under 5(c) did not arise. The minority thought that an arrest to prevent an offence clearly fell under 5(c). The fact of release without being brought before a competent court mattered not: the lawfulness of his detention could subsequently be challenged and decided by a court.

In the present case, the Supreme Court approved the Strasbourg reference to the domestic UK case of Austin and Saxby, in which it was stated that ‘…article 5 cannot be interpreted in such a way as to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public – provided that they comply with the underlying principle of article 5, which is to protect the public from arbitrariness.’

The Supreme Court noted that the actions of the police had been taken in good faith. They were proportionate and necessary and there was nothing arbitrary about the decisions. The question was how they could be accommodated under Article 5. The natural reading of 5(c) was that it covered preventative arrests and that it was necessary to bring a person before a competent court. This was implicitly dependent upon the person’s custody continuing long enough for them to be brought before a court. In the case of early release it was enough if the lawfulness of the detention could subsequently be challenged and decided by the court. 

There is, of course, a power to bring persons arrested for breach of the peace before the magistrates to be bound over. The Supreme Court noted that it would be contrary to the spirit of Article 5 if the claimants’ early release placed them in a stronger position than if they had in fact been detained, produced and bound over.

Comment

This is a pragmatic decision based upon the need to protect the public and the underlying purpose of Article 5. It was plainly in the interests of the public to detain the claimants and appropriate to release them without putting them before a court. 

The case illustrates an interesting symmetry and dialogue between domestic and Strasbourg jurisprudence with Ostendorf relying on Austin and Saxby and the Supreme Court returning the compliment by relying on Ostendorf.

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