Court takes a liberty with our freedom

The continuous nature of time appeared to flummox the judges

The European Court of Human Rights has decided today that police “kettling” of crowds – holding them within a police cordon for hours at a time – does not deprive them of their liberty.

This was a difficult case for several reasons. Firstly, those held within the “kettle” were not just the demonstrators whose behaviour had caused the police to become concerned for public order. The containment included several passers-by who had inadvertently become caught up in it. Indeed, three of the four applicants whose case was dismissed by the Court were passers-by and only one was a demonstrator.

A further difficulty – and this is what makes the decision so insidious – is that the court was faced with what three of the judges called the “paradox” that, if the court concluded that the containment was indeed a deprivation of liberty, it would have to be declared illegal, because none of the permitted reasons for depriving a person of their liberty applied in this case.

The permitted reasons for depriving a person of their liberty include, fairly obviously, punishing those convicted of a crime and detaining those suspected of a crime. But the reasons don’t – so the Court tells us – stretch to the circumstances in which any of the four applicants in this case were held. So there was no scope for the court to decide whether, in the circumstances, the deprivation of liberty was acceptable, for example to restore public order. The kettle was either illegal or it wasn’t a deprivation of liberty: there was no other option open to the court.

Three of the 17 judges concluded that it was a deprivation of liberty.  These dissenting judges concluded that “The majority’s position … [is] that if it is necessary to impose a coercive and restrictive measure for a legitimate public-interest purpose, the measure does not amount to a deprivation of liberty. This is a new proposition which is eminently questionable and objectionable”.

The dissenting judges give reasons why the proposition is questionable and objectionable, in particular that the aim or intention of a measure cannot be taken into account in assessing whether it amounts to a deprivation of liberty. This is entirely logical: the intention goes to the question of whether the deprivation of liberty is justified, but not in deciding whether, as a matter of fact, liberty has been deprived.

As noted above, the intention behind kettling is not one of the permitted reasons for depriving a person of their liberty, so the 14 judges who wanted to find in favour of kettling could do so only by finding that it wasn’t a deprivation of liberty in the first place. But how could they reach such a conclusion when, on the evidence before them – accepted by the Court – people were held within a cordon for over seven hours in circumstances where “as the afternoon progressed conditions became uncomfortable. The weather was cold and wet. No food or water was provided and there was no access to toilet facilities or shelter”?

The basis for the conclusion that this was not a deprivation of liberty is contained in the following passage:

“… where substantially the same dangerous conditions which necessitated the imposition of the cordon at 2 pm continued to exist throughout the afternoon and early evening, the Court does not consider that those within the cordon can be said to have been deprived of their liberty”.

But the words “which necessitated the imposition of the cordon” are fatal to the logic. They speak of need – the aim or intention of the cordon – not its effect on the liberty of those held within it.

The disturbing nature of the 14 judges’ reasoning did not stop there. They said they were “unable to identify a moment when the measure changed from what was, at most, a restriction on freedom of movement, to a deprivation of liberty [because] substantially the same conditions which required the police to contain the crowd at 2 pm persisted until about 8 pm, when the collective release was finally able to proceed”.

The dissenting judges’ were noticeably unimpressed by this reasoning:

“It is unclear what this observation means. Does it mean that there was no deprivation of liberty before 9.30 pm or that the situation became a deprivation of liberty between 2 and 9.30 pm but the precise moment cannot be pinpointed?”.

It is as if the continuous nature of time has flummoxed the majority of the judges. The fact that we cannot determine a precise moment when something turned from good to bad does not mean that it can never be declared bad. (Think of a piece of fruit.) The same is true of something which starts imperceptibly. We cannot declare a status not to exist, just because we cannot identify the precise moment it came into being.

I have written about this before. Frogs and investors can be quite stupid when faced with the concept of continuity. We expect better from our senior judges.