Preventive Detention Upheld for 2011 Royal Wedding Opponents (ECtHR)
On 28 March 2019, the European Court of Human Rights ruled unanimously, in the case of Eiseman-Renyard v UK (App. No.: 57884/17), that the preventive detention of opponents of the 2011 Royal Wedding did not breach their rights under Article 5 of the European Convention on Human Rights. In fact, relying on the doctrine of subsidiarity, the Court did not even properly consider the merits of the case but instead classified the application as ‘manifestly ill-founded’ and therefore wholly inadmissible.
The main applicant, Hannah Eiseman-Renyard, along with other applicants, arrived in the centre of London between 10 and 11 AM on the day of the wedding of the Duke and Duchess of Cambridge (29 April 2011) with the intention to participate in a ‘zombie picnic’ organised by the ‘Queer Resistance’. Before any demonstration took place, the applicant had been arrested by the police for the purpose of ‘preventing a breach of the peace’. The police were acting on information that the group was planning to gather at Westminster Abbey at 11 AM to throw maggots (as confetti) during the wedding procession. The applicant was taken to the Belgravia police station where she were detained until 3:45 PM, i.e. until the wedding had ended. She was then released with no charges.
Firstly, the ECtHR considered the classification of the complaint and ruled that it should be reviewed under Article 5(1)(c) of the ECHR, determining that Article 5(1)(b) of the ECHR, even though raised by the applicant, was irrelevant in this case in light of the holding in S., V. and A. v. Denmark (App. Nos.: 35553/12, 36678/12 & 36711/12) (para 39). Article 5(1)(b)&(c) state:
“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:
(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;”
Secondly, the ECtHR considered the domestic legal basis for the detention. The Court recognised that “breach of the peace is a common-law concept dating back to the tenth century” whereby “every constable, and also every citizen, enjoys the power and is subject to a duty to seek to prevent, by arrest or other action short of arrest, any breach of the peace occurring in his presence, or any breach of the peace which (having occurred) is likely to be renewed, or any breach of the peace which is about to occur” (R (Laporte) v Chief Constable of Gloucester  2 AC 105) (para 26). In line with the domestic authorities, the Court recognised that “the power is confined to a situation in which the person making the arrest reasonably believes that a breach of the peace is likely to occur in the near future. Moreover, there is only a power of arrest if it is a necessary and proportionate response to the risk.” (para 27). In this respect, the ECtHR held that “there was no dispute that the applicants’ detention was lawful under domestic law. It may be noted that the High Court was satisfied that the arresting officers had reasonable grounds for believing that a breach of the peace was imminent.” (para 41).
Thirdly, the ECtHR considered the compliance of the common law offence of ‘breach of peace’ with the rights guaranteed under Article 5 of the ECHR. On that issue, the Court found that:
“The offence of breach of the peace which all the applicants were charged with was sufficiently concrete and specific in the circumstances. Against the factual background of the royal wedding in terms of crowd size and international interest, coupled with the threat level of ‘severe’ in the United Kingdom at the relevant time, the Court finds that an objective observer would be satisfied that the applicants would in all likelihood have been involved in the concrete and specific offence had its commission not been prevented by their detention. Finally, it notes that the applicants were released as soon as the imminent risk had passed and in all cases their detention was for a matter of hours, which the Grand Chamber identified as broadly appropriate in the context of preventive detention…” (para 43).
Finally, the ECtHR relied on the doctrine of subsidiarity whereby an in-depth consideration of relevant issues in light of ECtHR’s jurisprudence by a domestic court creates a strong presumption in favour of a domestic ruling. In line with this approach, the Court deferred to the domestic rulings:
“In the circumstances of the present case the domestic courts in fact examined these elements in the context of their analyses of national law, the Court of Appeal observing that there was no practical distinction between the test in common law and under the Convention (see § 87). The Supreme Court noted that:
“5. The 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. It dismissed as unrealistic the argument that lesser measures would have been adequate to meet the degree of risk. Continuous police supervision was not a feasible option, given the many demands on police resources. The claims that the police acted unlawfully as a matter of domestic law therefore failed.”
The Court considers there are no cogent reasons (see S., V. and A. v. Denmark, cited above, § 154) which would lead it to depart from the Supreme Court’s finding for the second and fifth applicants that:
“31. 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”…“
Overall, the ECtHR held “that the domestic courts struck a fair balance between the importance of the right to liberty and the importance of preventing the applicants from disturbing the public order and a causing danger to the safety of individuals and public security.”