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May Day kettling victim was not deprived of liberty, Strasbourg says

15 March 2012

The European Court of Human Rights has ruled that an anti-capitalist protester, trapped behind police lines in Oxford Street during the May Day protests of 2001, was not deprived of her liberty.

The Strasbourg judges agreed with the House of Lords, which ruled in 2009 that police treatment of Lois Austin did not breach article 5(1) of the convention on the right to ‘liberty and security of person’.

Delivering judgment in Austin and others v UK (application no. 39692/09), the ECtHR said: “There was space within the cordon for people to walk about and there was no crushing, but conditions were uncomfortable, with no shelter, food, water or toilet facilities.

“Throughout the afternoon and evening attempts were made by the police to commence collective release, but the violent and uncooperative behaviour of a significant minority both within the cordon and in the surrounding area outside led the police repeatedly to suspend dispersal.”

The ECtHR considered that the “coercive nature of the containment within the cordon”, its duration and its effects on the applicants pointed towards a deprivation of liberty.

However, the court said it was important to note that the measure was imposed to isolate and contain a large crowd “in volatile and dangerous conditions”.

They went on: “As the government pointed out, the police decided to make use of a measure of containment to control the crowd, rather than having resort to more robust methods, which might have given rise to a greater risk of injury to people within the crowd.”

The Strasbourg judges said it was impossible to identify a moment when “what was, at most, a restriction on freedom of movement” became a deprivation of liberty.

Ruling that article 5 was inapplicable, so there could be no question of a violation, they emphasised that their conclusion was based on the “specific and exceptional” facts of the case.

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Police & Prisons