"102. (...) [T]he first question is whether the appellants were deprived of their liberty from the outset. In our opinion they plainly were not. The position at that time was not markedly different in terms of detention from a number of different types of confinement or detention to which the judge referred which would not be regarded as a deprivation of liberty within Article 5 § 1. A good example is perhaps a football crowd. It is commonplace for such a crowd to be contained for what may turn out to be quite long periods, partly for the protection of individuals in the crowd and partly (in some cases) to avoid crowd violence, perhaps as between groups of opposing supporters (...) Other examples would be (...) for example where motorists are unable to leave a motorway, perhaps for many hours, because of police action following an accident. In such cases it may be necessary for police to confine individuals in particular areas for what may be much longer than originally intended.
103. In our opinion this was plainly such a case. On the judge's findings of fact, the police had no alternative but to impose the cordon which they did. They anticipated orderly release over two or three hours in order to avoid violence. The judge identified their various purposes, which included safety and the prevention of crime by individuals in the crowd many of whom could not be identified. In these circumstances the original imposition of the cordon could not, in our judgment, properly be regarded as the kind of arbitrary detention which the Strasbourg authorities would describe as deprivation of liberty within the meaning of Article 5 § 1. For these reasons we hold that the judge erred in principle in concluding that the appellants were unlawfully detained as from 2.20 p.m.
104. On that basis, it is for us to consider afresh the remaining question, namely whether they were unlawfully detained thereafter. In our judgment the answer to that question is 'No'. So for example, (...) on a number of occasions during the afternoon the police gave the order to commence controlled release, only to find that they could not safely carry it through (...) On three occasions the decision to commence controlled dispersal north had to be reviewed or suspended because of the conduct of protesters either inside or outside the contained area, with the result that the final release phase did not begin until 8.02 p.m. (...) During the whole period there was very considerable violence, although not it must be stressed by the appellants (...) As the judge concluded (...) this was not simply a static crowd of protesters in Oxford Circus surrounded by police and held in place for seven hours. It was a dynamic, chaotic, and confusing situation in which there were also a large number of other protesters in the immediate vicinity outside the cordon who were threatening serious disorder and posing a threat to the officers both on the cordon and within it.
105. In these circumstances it could not sensibly be held that there came a time in which what was originally something less than a deprivation of liberty subsequently became a deprivation of liberty within the meaning of Article 5 § 1 of the Convention. We therefore hold, contrary to the conclusion of the judge, that, if all the relevant circumstances are taken into account, there was not here the kind of arbitrary deprivation of liberty contemplated by the Convention."

"23. The application of Article 5 § 1 to measures of crowd control is an issue which does not appear so far to have been brought to the attention of the court in Strasbourg. So there is no direct guidance as to whether Article 5 § 1 is engaged where the police impose restrictions on movement for the sole purpose of protecting people from injury or avoiding serious damage to property. The need for measures of crowd control to be adopted in the public interest is not new, however. It is frequently necessary, for example, for such measures to be imposed at football matches to ensure that rival fans do not confront each other in situations that may lead to violence. Restrictions on movement may also be imposed by the police on motorists in the interests of road safety after an accident on a motorway, or to prevent local residents from coming too close to a fire or a terrorist incident. It is not without interest that it has not so far been suggested that restrictions of that kind will breach Article 5 § 1 so long as they are proportionate and not arbitrary.
24. The restrictions that were imposed by the police cordon in this case may be thought, as compared with the examples that I have just mentioned, to have been greater in degree and intensity. But Lord Pannick QC for the respondent submitted that one could not sensibly ignore the purpose of the restriction or the circumstances. Detention in the paradigm sense was not in the minds of anyone. There would have been no question of there being a deprivation of liberty if the cordon had remained in place for only twenty minutes. The fact that it remained in place for much longer ought to make no difference, as the fact that it was not possible to release everyone from the cordon earlier was due to circumstances that were beyond the control of the police. This was a case, he said, where the answer to the question whether what was done was within the scope of Article 5 § 1 was to be determined by striking a fair balance between the rights of the individual and the interests of society. It was, of course, necessary to give full effect to the fact that Article 5 was a fundamental right whose importance was paramount. But the fact that infringement was not open to justification except in the cases listed in sub-paragraphs (a) to (f) pointed to the need for care to be taken to identify the limits of its application.
25. Ms Williams QC for the appellant, on the other hand, said that the purpose for which the measure was employed was irrelevant. The fact that it was a necessary response and was proportionate was a pre-condition for establishing the measure's legality for the purpose of sub-paragraphs (a) to (f) of Article 5 § 1. But it went no further than that. There was no balance to be struck when consideration was being given to the initial question whether Article 5 § 1 applied to the measures adopted by the police. Questions of purpose and balance only arose when consideration was being given to the cases listed in sub-paragraphs (a) to (f).

Is purpose relevant?

26. The decision whether there was deprivation of liberty is, of course, highly sensitive to the facts of each case. Little value can be derived therefore from decisions on the application of Article 5 that depend entirely on their own facts. But they are of value where they can be said to illustrate issues of principle. In the present context some assistance is to be derived from the cases as to the extent to which regard can be had to the aim or purpose of the measure in question when consideration is being given as to whether it is within the ambit of Article 5 § 1 at all.
27. If purpose is relevant, it must be to enable a balance to be struck between what the restriction seeks to achieve and the interests of the individual. The proposition that there is a balance to be struck at the initial stage when the scope of the Article is being considered was not mentioned in Engel v The Netherlands (No 1) (1976) 1 EHRR 647 or Guzzardi v Italy (1980) 3 EHRR 333. Nor can it be said to be based on anything that is to be found in the wording of the Article. But I think that there are sufficient indications elsewhere in the court's case-law that the question of balance is inherent in the concepts that are enshrined in the Convention and that they have a part to play when consideration is being given to the scope of the first rank of fundamental rights that protect the physical security of the individual."

"34. I would hold therefore that there is room, even in the case of fundamental rights as to whose application no restriction or limitation is permitted by the Convention, for a pragmatic approach to be taken which takes full account of all the circumstances. No reference is made in Article 5 to the interests of public safety or the protection of public order as one of the cases in which a person may be deprived of his liberty. This is in sharp contrast to Article 10 § 2, which expressly qualifies the right to freedom of expression in these respects. But the importance that must be attached in the context of Article 5 to measures taken in the interests of public safety is indicated by Article 2 of the Convention, as the lives of persons affected by mob violence may be at risk if measures of crowd control cannot be adopted by the police. This is a situation where a search for a fair balance is necessary if these competing fundamental rights are to be reconciled with each other. The ambit that is given to Article 5 as to measures of crowd control must, of course, take account of the rights of the individual as well as the interests of the community. So any steps that are taken must be resorted to in good faith and must be proportionate to the situation which has made the measures necessary. This is essential to preserve the fundamental principle that anything that is done which affects a person's right to liberty must not be arbitrary. If these requirements are met however it will be proper to conclude that measures of crowd control that are undertaken in the interests of the community will not infringe the Article 5 rights of individual members of the crowd whose freedom of movement is restricted by them."

"58. The police are under a duty to keep the peace when a riot is threatened, and to take reasonable steps to prevent serious public disorder, especially if it involves violence to individuals and property. Any sensible person living in a modern democracy would reasonably expect to be confined, or at least accept that it was proper that she could be confined, within a limited space by the police, in some circumstances. Thus, if a deranged or drunk person was on the loose with a gun in a building, the police would be entitled, indeed expected, to ensure that, possibly for many hours, members of the public were confined to where they were, even if it was in a pretty small room with a number of other people. Equally, where there are groups of supporters of opposing teams at a football match, the police routinely, and obviously properly, ensure that, in order to avoid violence and mayhem, the two groups are kept apart; this often involves confining one or both of the groups within a relatively small space for a not insignificant period. Or if there is an accident on a motorway, it is common, and again proper, for the police to require drivers and passengers to remain in their stationary motor vehicles, often for more than an hour or two. In all such cases, the police would be confining individuals for their own protection and to prevent violence to people or property.
59. So, too, as I see it, where there is a demonstration, particularly one attended by a justified expectation of substantial disorder and violence, the police must be expected, indeed sometimes required, to take steps to ensure that such disorder and violence do not occur, or, at least, are confined to a minimum. Such steps must often involve restraining the movement of the demonstrators, and sometimes of those members of the public unintentionally caught up in the demonstration. In some instances, that must involve people being confined to a relatively small space for some time.
60. In such cases, it seems to me unrealistic to contend that Article 5 can come into play at all, provided, and it is a very important proviso, that the actions of the police are proportionate and reasonable, and any confinement is restricted to a reasonable minimum, as to discomfort and as to time, as is necessary for the relevant purpose, namely the prevention of serious public disorder and violence.
61. It was suggested on behalf of the appellant that, at any rate in some of the examples I have given, consent to being confined could be imputed to the people concerned. I am not sure that that is a satisfactory analysis, not least because, unless the consent is to be treated as being involuntary or irrebuttably deemed to be given, it would not deal with the case of a person who informed the police that he objected to being confined. However, if imputed consent is an appropriate basis for justifying confinement for Article 5 purposes, then it seems to me that the confinement in the present case could be justified on the basis that anyone on the streets, particularly on a demonstration with a well-known risk of serious violence, must be taken to be consenting to the possibility of being confined by the police, if it is a reasonable and proportionate way of preventing serious public disorder and violence.
62. So, in agreement with the Court of Appeal, I would hold that, in the light of the findings of the Judge, as summarised in para [57] above, the actions of the police in the present case did not give rise to any infringement of the appellant's Article 5 rights. The feature of the present case which gives particular cause for concern is the length of the period of confinement, nearly seven hours. However, having reached the conclusion that reasonable and proportionate constraint, which is requisite to prevent serious public disorder and violence, does not infringe Article 5, it seems to me hard to contend that the mere fact that the period of constraint was unusually long can, of itself, convert a situation which would otherwise not be within the ambit of Article 5 into one which is. I think that some support for that view can be found in cases where it has been held that detention in prison is not taken out of Article 5 because it was only for a short time -- see e.g. Novotka v Slovakia (Application No 47244/99) 4 November 2003.
63. As already indicated, it appears to me that the intention of the police is relevant, particularly in a non-paradigm case, such as this, and where the intention is manifest from the external circumstances. If it transpired, for instance, that the police had maintained the cordon, beyond the time necessary for crowd control, in order to punish, or 'to teach a lesson' to, the demonstrators within the cordon, then it seems to me that very different considerations would arise. In such circumstances, I would have thought that there would have been a powerful argument for saying that the maintenance of the cordon did amount to a detention within the meaning of Article 5. However, as is apparent from the clear and careful findings made by the Judge, which have quite rightly not been challenged on appeal, there could be no question of such a contention being raised in the present case.
64. Furthermore, it is worth bearing in mind that, at least as I see it, if the restraint in the present case did amount to detention within Article 5, it would not be possible for the police to justify the detention under the exceptions in paras (b) or (c), not least because of the reasoning of the European Court in Lawless v Ireland (No 3) (1961) 1 EHRR 15. I consider that the fact that the restraint in the present case could not be justified under any of the exceptions in paras (a) to (f) supports the contention that the constraint did not amount to detention within Article 5 at all. It would appear to me to be very odd if it was not open to the police to act as they did in the instant circumstances, without infringing the Article 5 rights of those who were constrained."

"43. In paras 26ff of his opinion Lord Hope poses the question 'Is purpose relevant?' His conclusion is a very guarded one, that is (para 34) that there is room, even in the case of fundamental rights, for a pragmatic approach which takes full account of all the circumstances. I respectfully agree that it is right to be cautious on this point. The Strasbourg Court has frequently made clear that all the surrounding circumstances may be relevant in determining whether there is a deprivation of liberty: see for instance HM v Switzerland (2004) 38 EHRR 314, para 42:
(...)
It is noteworthy that the listed factors, wide as they are, do not include purpose.
44. The purpose of confinement which may arguably amount to deprivation of liberty is in general relevant, not to whether the threshold is crossed, but to whether that confinement can be justified under Article 5 § 1 (a) to (f): see for instance (in relation to Article 5 § 1 (e)) Nielsen v Denmark (1988) 11 EHRR 175; Litwa v Poland (2001) 33 EHRR 1267; Wall v Sweden, (10 December 2002) admissibility decision 41403/98; HM v Switzerland (above); HL v United Kingdom (2005) 40 EHRR 32; Enhorn v Sweden (2005) 41 EHRR 633; and Storck v Germany (2006) 43 EHRR 96. If confinement amounting to deprivation of liberty and personal security is established, good intentions cannot make up for any deficiencies in justification of the confinement under one of the exceptions listed in Article 5 § 1 (a) to (f), which are to be strictly construed.
45. Many of these Article 5 § 1 (e) cases also raise issues as to express or implied consent (to admission to a psychiatric ward or old people's home). Some of the earlier cases seem questionable today insofar as they relied on 'parental rights' (especially Nielsen, which was a nine-seven decision that the admission to a psychiatric ward of a 12-year-old boy was not a deprivation of liberty, because of his mother's 'parental rights'). Storck has, I think, sent out a clear message indicating a different approach to the personal autonomy of young people (although the unfortunate claimant in that case was 18 years of age at the time of her compulsory medication in a locked ward in the clinic at Bremen, for which she was made an exceptionally large award for non-pecuniary loss).
46. I also feel some unease about the decision in X v Germany (19 March 1981) admissibility decision 8819/79; police stations can be intimidating places for anyone, particularly children, and it seems rather disingenuous to reason that 'in the present case the police action was not aimed at depriving the children of their liberty but simply to obtain information from them about how they obtained possession of the objects found on them and about thefts which had occurred in the school previously'.
47. Having said all that, however, I conclude that it is essential, in the present case, to pose the simple question: what were the police doing at Oxford Circus on 1 May 2001? What were they about? The answer is, as Lord Hope has explained in his full summary of the judge's unchallenged findings, that they were engaged in an unusually difficult exercise in crowd control, in order to avoid personal injuries and damage to property. The senior officers conducting the operations were determined to avoid a fatality such as occurred in Red Lion Square on 15 June 1974. The aim of the police was to disperse the crowd, and the fact that the achievement of that aim took much longer than they expected was due to circumstances beyond their control."

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."