From: Neil Foster <>
To: Robert Stevens <>
Date: 29/01/2009 01:27:01 UTC
Subject: RE: False imprisonment and the common law in the HL

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.)
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
ph 02 4921 7430
fax 02 4921 6931

>>> Robert Stevens <> 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.


From: Andrew Tettenborn
Sent: 28 January 2009 11:00
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

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 M Tettenborn

Bracton Professor of Law, University of Exeter


Law School

University of Exeter

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Exeter EX4 4RJ



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