House of Lords – Austin v Commissioner of Police of the Metropolis [2009] UKHL 5

[2009] 1 AC 564
Facts:
 During anti-capitalist demonstrations on Labour Day 2001, the police cordoned off
3000 demonstrators in Oxford Circus for 7 hours.
 A was one of those within the cordon.
 There were a lot of celebrations and protests.
 Allowed to leave between 14:00-14:30.
 Claimed for false imprisonment under Art. 5 of the ECHR.
Issues:
 Whether the way which A was treated was incompatible with Art.5 right to liberty.
 Was there a deprivation of liberty?
 Whether the polices actions fell within Art. 5.
 Underlying question is an important issue of principle.
 The right guaranteed by Art. 5(1) is an absolute right. But must be held to be
applicable.
 To what extent, if at all, is it permissible in the determination of that issue to balance
the interests of the individual against the demands of the general interest?
Judgement:
 CA and HL both rejected the appeal.
 CA rejected on the ground that what the police had done was not an example of a
deprivation of liberty as it was not intensive or extreme enough to come under Art. 5.
 HL held that measures of crowd control undertaken in the interests of the community
would fall outside of Art. 5 (right to liberty) as long as they are not arbitrary, are
resorted to in good faith, and are proportionate and enforced no longer than necessary.
 Held that the use of the cordon, which resulted in people being held in one place
without food, water or shelter, was not a deprivation of liberty.
 No breach of Art. 5
R (on the Application of Moos and McClure) v Commissioner of Police of the Metropolis
[2011] EWHC 958 (HC)
Facts:
 These protests were in the context of the G20 summit in 2009.
 They were formed of two largely separate demonstrations: the Royal Exchange
Demonstration and the Climate Camp Demonstration.
 Each were attended by 4000-5000 people.
 RE – was disorderly to the point of serious violence.
 CC – markedly less so: one officer had apparently noted that there was a “party
atmosphere”.
 Around 12pm, the decision was made to contain RE camp and, later that evening, at
approximately 7:30pm, the crowd was progressively dispersed.
  Mr Johnson was concerned that the more violent elements of the RE camp would
mingle with the crowd at CC, leading to imminent breaches of the peace, and so took
the decision to contain the CC at the time of the dispersal of the RE.
Issues:
 Was the decision to contain the Climate Camp between 7 pm and 11:15 pm on 1st
April 2009 unlawful?
 Was there an unlawful failure to make appropriate and timely release arrangements
while the containment was in place?
 Was there an unlawful use of force against some of those who were contained,
resulting from a failure to give adequate guidance and instruction to the officers
involved?
 Was the decision to impose conditions purportedly under section 14 of the 1986 Act
to disperse those taking part in the Climate camp protest unlawful?
Judgement:
 Held that the police containment (or “kettling”) of the Climate Camp for a period of
over four hours was unlawful there being no reasonably apprehended breach of the
peace sufficient to justify such action.
 Further held that the concerted use of force by officers wearing riot gear, who pushed
the crowd 20-30 metres back when putting the containment in place, was also
unlawful.
 Unusually, for a judicial review, the Court had heard live evidence from the senior
police officer responsible for the decisions under the challenge.
 The case is significant in re-emphasising the truly extreme and exceptional
circumstances that must be present before police action of this kind can be justified.
R (on the Application of Moos and McClure) v Commissioner of Police of the Metropolis
[2012] EWCA Civ 12 (CA decision for above case)
Facts:
 These protests were in the context of the G20 summit in 2009.
 They were formed of two largely separate demonstrations: the Royal Exchange
Demonstration and the Climate Camp Demonstration.
 Each was attended by 4000-5000 people.
 RE – was disorderly to the point of serious violence.
 CC – markedly less so: one officer had apparently noted that there was a “party
atmosphere”.
 Around 12 pm, the decision was made to contain the RE camp and later that evening,
at approximately 7:30 pm, the crowd was progressively dispersed.
Issues:
 Whether the DC had adopted the correct approach in determining the reasonableness
of the Chief Superintendent Mr Johnson view that a breach of the peace at CC was
imminent.
  Whether Mr Johnson’s apprehension that there was an imminent breach of the peace
was reasonable.
 Whether the decision to contain the CC had been justified on Johnson’s own
evidence.
Judgement
 They considered the judgement made in R (Laporte) v Chief Constable of
Gloucestershire [2006] UKHL 55.
 CA considered the HC’s summary following the decisions in Laporte:
(1) For a police officer to take steps lawful at common law to prevent an apprehended
breach of the peace, the apprehended breach must be imminent;
(2) Imminence is not an inflexible concept but depends on the circumstances;
(3) If steps are to be justified, they must be necessary, reasonable and proportionate;
(4) Depending on the circumstances, steps which include keeping two or more
different groups apart may be necessary, reasonable and proportionate, if a
combination of groups is reasonably apprehended to be likely to lead to an
imminent breach of the peace; and
(5) Again, depending on the circumstances, where it is necessary in order to prevent
an imminent breach of the peace, action may lawfully be taken which affects
people who are not themselves going to be actively involved in the breach.
 They also took into account Austin v Commissioner of Police of the Metropolis
[2007] EWCA Civ 989
 That where a breach of the peace was taking place or reasonably thought to be
imminent, the police could interfere with or curtail the lawful exercise of rights of
innocent third parties. But only if they had taken all other possible steps to prevent the
breach or imminent breach of the peace and to protect the rights of third parties,
 Only where they reasonably believed that there was no other means to prevent a
breach or imminent breach of the peace.
 Also used the test laid down by Sedley LJ in Redmond-Bate v DPP [1999] EWHC
Admin 733
 Led the court to conclude that the approach followed was an objective one and that it
was not for the court to form its own view as to imminence.
 Therefore, allowed the appeal against the Divisional Courts decision that a
containment by police of protestors at the G20 Climate Camp was unlawful.
 The Court of Appeal noted that the role of the Court on a judicial review of police
action on the ground was to ask whether the police officer’s anticipation of an
imminent breach of the peace was reasonable and if so whether the response was
proportionate.
 On the facts, the Commissioner’s case was made out. The Divisional Court had fallen
into error by purporting to decide for itself whether a breach of the peace was in fact
imminent, at the relevant moment.
R v Inspectorate of Pollution and another, ex parte Greenpeace Ltd (No. 2) [1994] 4 All
ER 329
Facts:
  A company, BNFL, which reprocessed spent nuclear fuel, was authorised by the
respondent government departments to discharge liquid and gaseous radioactive waste
from its premises under authorisations granted pursuant to s 6(1)a of the Radioactive
Substances Act 1960.
 In 1992 BNFL applied for new authorisations to include the proposed operation of its
new thermal oxide reprocessing plant.
 Pending the grant of the new authorisations, BNFL also applied for and obtained a
variation of the existing authorisations to enable it to test the new plant before it
became fully operational.
 An environmental protection organisation (Greenpeace) with an international standing
was concerned about the levels of radioactive discharge from the site.
 They applied for judicial review by way of an order of certiorari to quash the
respondents' decision to vary the existing authorisations and an injunction to stay the
implementation of the varied authorisations.
 This would halt the proposed testing of the new plant pending a decision on BNFL's
main application.
 The organisation had 2,500 supporters.
 They contended that….
(1) The variations were unlawful since they concerned an operation which was
different in description and kind from that for which the original authorisations
had been granted.
o They constituted an anticipation of new authorisations not yet granted under
s8(1)b of the 1960 Act, rather than a variation of existing authorisations
capable ofbeing made under s 8(7).
(2) that the respondents' decision not to consider the justification for the tests in
thelight of the emissions of radioactivity entailed in the running and
decontaminating of the plant was impeachable,
o Given their obligation under the 1960 Act and art 6c of Council Directive
(Euratom) 80/836 to ensure that the process for which the variation was sought
was justified in terms of its overall benefits and the point that, if the main
authorisations were ultimately refused, the testing would have been carried out
without any justification.
 The respondents contended that s 6(1) of the 1960 Act, as amplified by s 8(4),
permitted BNFL to dispose of any radioactive waste from its premises and permitted
variation of the original authorisations to allow the testing process to take place.
 BNFL contended that the applicant had failed to establish a 'sufficient interest in the
matter' to which the application related, as required by s 31(3)d of the Supreme Court
Act 1981 and RSC Ord 53, r 3(7)e, and had no locus standi to make the application.
Issues:
 Were the variations unlawful as they concerned an operation which was different
from its description and far from what the original authorisations had granted?
 Were he respondents liable for impeachment due to them not considering the
justification for the tests given their obligations under the 1960 Act and Art. 6C of
 Council Directive (Euratom) tt0/tt36 to ensure that the process for which the variation
was sought was justified in terms of its overall benefits.
Judgement:
 Court should take into account, nature of applicant, extent of his interest in the issues
raised, the remedy which he sought to achieve, and the nature of relief sought.
 Court held Greenpeace do have standing.
 This was because it needed to be looked at on its own circumstances.
 They are a respectable organisation and are invested in environmental issues.
 They’re not strangers to this whole thing because when the inspector was considering
whether or not to give permission, they contacted Greenpeace for advice.
 If the courts don’t allow Greenpeace to put in an application the individuals affected
by it will have to come forward, which means more applications.
 Greenpeace can put in a stronger challenge.
Council of Civil Service Unions v Minister for the Civil Service [1984] AC 374 (GCHQ)
Facts:
 In 1984, the government of Margaret Thatcher banned employees of the Government
Communications Headquarters (GCHQ) from joining any trade union.
 GCHQ is a British intelligence agency that provides signal intelligence to the British
government and armed forces.
 Prior to 1983, its existence was not acknowledged, even though it openly recruited
graduates.
 However, following a spy scandal in 1983, the organisation became known to the
public.
 A year after this, the government of Thatcher decided they could join a trade union for
national security reasons.
 This was due to ‘national security’ reasons by an Order in Council using the Royal
Prerogative.
 Despite an extensive public campaign by trade unions, the government refused to
reverse the decision.
 Instead, they offered employees that were affected either £1,000 or a membership of a
staff association or dismissal.
 Employees dismissed could not rely on an industrial tribunal, and they weren’t
covered by the relevant employment legislation.
 Therefore, the Council of Civil Service Unions claimed in judicial review that it
defeated their legitimate expectations to collectively bargain for fair wages.
Issues:
 Could prerogative powers be subject to judicial review?
 Is there a public law right to legitimate expectations?
 Can prerogative be reviewed in matters of national security?
Judgement
  There was a legitimate expectation under the union to be consulted
 They didn’t consult unions because the government said if they’d told them first, they
would’ve just gone on strike, which they wanted to avoid.
 If there was no consideration of national security, the decision would have gone in
favour of the workers
 High Court of Justice – held the Order of Council was invalid as employees had a
right to constitution, and that the lack of consultation made the decision invalid
 Court of Appeal – held judicial review could not be used to challenge the use of the
royal prerogative.
 They decided that as the determination of national security issues is an executive
function, it would not be subject to judicial review.
 House of Lords – held that exercises of the Royal Prerogative were subject to
judicial review, but there were exceptions, including matters for national security.
 This was a significant break from the previous law, which held that prerogative
powers were not in any way subject to judicial review.
 GCHQ case established that judicial review depends on the nature of the
government’s powers, not their source.
Wheeler v Leicester City Council [1985] 2 All ER 151 (Court of Appeal)
Facts:
 It was announced on 30th March 1984 that Rugby Football Union (R.F.U)
had accepted an invitation to take a touring side to South Africa.
 On 19th April 1984, the membership of this side was announced.
 Three Leicester Rugby Club members were invited to be members of this tour party.
Leicester has a very high ethnic minority population, and Leicester City Council
thought that if the players were to go to South Africa, which at the time was ruled on
an apartheid basis and which was subject to the Gleneagles Agreement, which was
discouragement from having sports and links, then this might cause race relations
problems within Leicester.
 The Council has a statutory duty under the Race Relations Act to promote good race
relations in its area.
 So, the council told the club that if the players went on tour, the club would be
punished because they would not be allowed to use Leicester City Council facilities
for a year.
 The players went, and the council attempted to ban the club.
 Wheeler, the former England captain and these other people who had been invited on
the tour challenged Leicester City Council’s use of its race relations power to ban the
club from their pitches.
Issues:
 Could action be overturned based on this threat?
 Does a public body have an overarching duty to act fairly when seeking to achieve its
objectives in order to exercise its public functions?
 Can it seek to use those powers in order to punish someone who hadn’t acted in a way
which could be seen as punishable?
Judgement:
 The judges referred to the duty a council has to eliminate racial discrimination and
how they must ‘promote good relations between persons of different racial groups.’
 They refused a judicial review of the council’s decision to ban the club from playing
at the ground which it owned.
Wheeler v Leicester City Council [1985] 2 All ER 1106 (House of Lords)
Facts:
 It was announced on 30th March 1984 that Rugby Football Union (R.F.U)
had accepted an invitation to take a touring side to South Africa.
 On 19th April 1984, the membership of this side was announced.
 Three Leicester Rugby Club members were invited to be members of this tour party.
Leicester has a very high ethnic minority population, and Leicester City Council
thought that if the players were to go to South Africa, which at the time was ruled on
an apartheid basis and which was subject to the Gleneagles Agreement, which was
discouragement from having sports and links, then this might cause race relations
problems within Leicester.
 The Council has a statutory duty under the Race Relations Act to promote good race
relations in its area.
 So, the council told the club that if the players went on tour, the club would be
punished because they would not be allowed to use Leicester City Council facilities
for a year.
 The players went, and the council attempted to ban the club.
 Wheeler, the former England captain and these other people who had been invited on
tour challenged Leicester City Council’s use of its race relations power to ban the club
from their pitches.
Issues:
 Was the court of appeal correct in its decision?
 Whether the conduct of the council is trying by their four questions, whether taken
individually or collectively, to force acceptance by the club of their own policy on
their own terms.
Judgement:
 The House of Lords ruled by a 4-1 majority that the council had clearly been
motivated by political reasons.
 They allowed the appeal to quash the decision made on 21st august 1984-It held that
the club couldn’t be punished because they had done nothing wrong.
 The council could not rely on the 1976 Act, which had different purposes, but had
other discretions and powers, and ‘persuasion, however powerful, must not be
allowed to cross that line where it moves into the field of illegitimate pressure coupled
with the threat of sanctions.’
 A body exercising public functions must not act on grounds collateral to the objective
to be achieved and/or for improper motives.
  A public body has an ‘overarching duty to act fairly when seeking to achieve its
objectives in exercising its public functions and, by seeking to use those powers to
punish someone who had not acted in any way which could properly justify such
punishment, it misused its powers and, thus, acted unlawfully and Wednesbury
unreasonably.’ (Para 63)

R (Daly) v Secretary of State for the Home Department [2001] 3 All ER 433
Facts:
 Mr Daly, a long-term prisoner, challenged the lawfulness of the prison cell searching
policy.
 He submitted that section 47(1) of the Prison Act 1952, which empowers the
Secretary of State to make rules for the regulation of prisons and for the discipline and
control of prisoners, doesn’t authorise the laying down and implementation of this
policy.
 He made a claim to the European Court of Human Rights under article 8 that legally
privileged material should not be searched during these random searches.
 The reason for the searches was for….
1. The purpose of security, preventing crime and maintaining order and
discipline.
2. In order to examine legal correspondence held by prisoners in their cells,
ensure this is bona fide legal correspondence.
3. To ensure that this correspondence is not used to hide drugs or illicit
materials.
 The case is important for its use of a proportionality test in a judicial review case; this
is a method copied by the jurisprudence of the European Convention of Human
Rights.
Issues:
 Whether rule 33(3) was drawn in terms wider than necessary to meet the legitimate
expectation of such a rule?
 Is there any ground for infringing in any way a prisoner’s right to maintain the
confidentiality of his privileged legal correspondence?
 Whether the interference was really proportionate to the legitimate aim being pursued
Judgement:
 The claim was successful.
 The court said that the policy infringes Mr Daly’s common law right to legal
professional privilege.
 Court held that Article 8.1 gives Mr Daly a right to respect for his correspondence.
 While interference with that right by a public authority may be permitted if in
accordance with the law and necessary in a democratic society in the interests of
national security, public safety, the prevention of disorder or crime or for protection
of the rights and freedoms of others, the policy interferes with Mr Daly's exercise of
his right under article 8.1 to an extent much greater than necessity requires.
 The court said: ‘What may be regarded as 'reasonable cause' will depend on all the
circumstances, but it presupposes the existence of facts or information which would
satisfy an objective observer that the privileged channel of communication was being
abused."
