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R (on application of Hicks and others) v Commissioner of Police for the Metropolis - (15 Feb 2017)

If Police Cannot Lawfully Arrest and Detain a Person for a Relatively Short Time, Ability of Police to Perform their Duty Would be Severely Hampered


Four appellants were part of a larger group of claimants, but it was agreed before the Court of Appeal that their cases should be treated as test cases. They were arrested in separate incidents at various places in central London on the grounds that their arrest was reasonably believed by the arresting officers to be necessary to prevent an imminent breach of the peace. Administrative Court rejected the broad complaint that the police adopted an unlawful policy for the policing of the royal wedding. After close examination of the facts of the individual arrests, it also held that the arresting officers had good grounds to believe that the arrests were necessary in order to prevent the likelihood of an imminent breach of the peace. Claim that the police acted unlawfully as a matter of domestic law therefore failed. Court of Appeal also concluded that, Appellants were arrested and detained “for purpose of bringing them before the competent legal authority”, if that were to become necessary, so as to prolong their detention on a lawful basis.

The fundamental principle underlying Article 5 is the need to protect the individual from arbitrary detention, and an essential part of that protection is timely judicial control, but at the same time Article 5 must not be interpreted in such a way as would make it impracticable for the police to perform their duty to maintain public order and protect the lives and property of others. These twin requirements are not contradictory but complementary, and this is reflected in the statement in Ostendorf . In balancing these twin considerations it is necessary to keep a grasp of reality and the practical implications. Indeed, this is central to the principle of proportionality, which is not only embedded in Article 5 but is part of the common law relating to arrest for breach of the peace.

In this case, there was nothing arbitrary about the decisions to arrest, detain and release the appellants. They were taken in good faith and were proportionate to the situation. If the police cannot lawfully arrest and detain a person for a relatively short time (too short for it to be practical to take the person before a court) in circumstances where this is reasonably considered to be necessary for the purpose of preventing imminent violence, the practical consequence would be to hamper severely their ability to carry out the difficult task of maintaining public order and safety at mass public events. This would run counter to the fundamental principles previously identified.

There is, however, a difficult question of law as to how such preventive power can be accommodated within Article 5. The view of the minority in Ostendorf, that Article 5.1(c) is capable of applying in a case of detention for preventive purposes followed by early release (that is, before the person could practicably be brought before a court), is correct for a number of reasons.

 As to Article 5.1(b), Court also prefers to the same view as the minority in Ostendorf that the obligation has to be much more specific than a general obligation not to commit a criminal offence (or, in this case, a breach of the peace), and that such a general obligation does not acquire the necessary degree of specificity by focusing narrowly on the particular facts or by the person concerned being given a reminder of it in specific circumstances. There are also practical considerations. The police may find it necessary to take action to prevent an imminent breach of the peace in circumstances where there is not sufficient time to give a warning. Supreme Court upheld the decision of lower courts that, Appellants’ arrests and detention were lawful under Article 5.1(c).


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