R (Laporte) v Chief Constable of Gloucestershire Constabulary

on appeal from [2004] EWCA Civ 1639

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

R (on the application of Laporte) (FC) (Original Appellant and Cross-respondent) v. Chief Constable of Gloucestershire (Original Respondent and Cross-appellant)

Appellate Committee

Lord Bingham of Cornhill

Lord Rodger of Earlsferry
Lord Carswell
Lord Brown of Eaton-under-Heywood
Lord Mance

Counsel

Ben Emmerson QC	Simon Freeland QC
Michael Fordham QC	Jeremy Johnson

(Instructed by Bindman & Partners)

(Instructed by Gloucestershire Constabulary Legal Services)

Interveners

Edward Faulks QC and Simon Readhead QC (instructed by Thames Valley Police

Legal Services) on behalf of The Chief Constable of the Thames Valley Police David Pannick QC, John Beggs and Amy Street (instructed by Director of Legal Services Metropolitan Police) on behalf of The Commissioner of the Police of the

Metropolis

Rabinder Singh QC and Jason Coppel on behalf of Liberty

Hearing dates:

23 - 25 October 2006

ON
WEDNESDAY 13 NOVEMBER 2006

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

R (on the application of Laporte) (FC) (Original Appellant and

Cross-respondent) v. Chief Constable of Gloucestershire (Original

Respondent and Cross-appellant)

[2006] UKHL 55

LORD BINGHAM OF CORNHILL

My Lords,

1. This appeal by Jane Laporte and cross-appeal by the Chief Constable of Gloucestershire Constabulary (respectively “the claimant” and “the Chief Constable”) raise important questions on the right of the private citizen to demonstrate against government policy and the powers of the police to curtail exercise of that right. The contentions of the claimant were supported in argument by Liberty, which was granted leave to intervene. The contentions of the Chief Constable were supported by the Chief Constable of the Thames Valley Police and the Commissioner of the Metropolitan Police, appearing as interested parties.

The facts

2. There has been no oral evidence and no cross-examination in this case, and the claimant has accepted that the Chief Constable’s factual evidence must be treated as correct. There are some differences between the accounts of the parties, but the following summary is based on what is either agreed or otherwise appears to be true.

3. The claimant is a peace protester who in early 2003 was very strongly opposed to the waging of war against Iraq. She wished to protest against the policy and conduct of the United Kingdom and United States governments. It is not suggested that her conduct and intentions were at any time other than entirely peaceful.

4. The Chief Constable, as head of the Gloucestershire Constabulary, was the officer with overall responsibility for policing the demonstration with which this case is concerned. Among the officers acting subject to his overall direction and control was Chief Superintendent Lambert, a senior officer whose honesty is accepted and whose integrity and professional competence are not in doubt. Save where express reference is made to Mr Lambert, I shall use the title “Chief Constable” to cover officers of the Gloucestershire Constabulary.

5. Just outside the village of Fairford in Gloucestershire is a Royal Air Force base bearing its name. In early 2003 the base was heavily used by the United States Air Force. On 21 March, American B52 bombers began to fly from it on operational sorties against Iraq. The proposed use of RAF Fairford for hostile operations against Iraq was well known, and the base became a focus for protest against the war. A number of incidents occurred in the period December 2002-March 2003, during which holes were repeatedly made in the perimeter fence, which ran for over 13 miles, some of it through open farmland. In some places the fence was not secure. Acts of mass trespass took place. A peace camp was established. Trespassers entered a munitions storage area, damaged lights on the runway, lurked in the fuel dump area and caused extensive damage to vehicles. A person was found near the base with ingredients for a suspected incendiary device. On one occasion in February an otherwise peaceful protest was attended by a hard core activist anarchist group known as the Wombles (White Overalls Movement Building Libertarian Effective Struggles). This protest began peacefully, but led to serious disorder when the main gate of the base was forced open, and there was a major incursion into the base. During the period (and before 22 March 2003) around 50 arrests were made.

6. A protest group calling themselves Gloucestershire Weapons Inspectors, in conjunction with other anti-war groups, organised a protest demonstration to take place at RAF Fairford on Saturday 22 March 2003. Their theme was civilian weapons inspection and protesters were encouraged to dress up in symbolic white overalls. The demonstration was advertised by Gloucestershire Weapons Inspectors, CND, Bristol Stop the War Coalition, Disobedience Against War, and also the Wombles, who similarly wore white overalls. Various websites, including those of Gloucestershire Weapons Inspectors and the Wombles, advertised coaches available for transport to the base, from London and other places. The Wombles website on 11 March posted a message couched in violent terms. The claimant saw the Gloucestershire Weapons Inspectors’ advert and booked a seat on one of three coaches which, in the event, set off from London to Fairford on 22 March.

7. The Chief Constable’s officers were fully alive to the demonstration planned for 22 March and began to plan for it from early in the month. They sought to enable the protest to take place peacefully and to minimise the risk of serious public disorder. They had been advised by senior military authorities that there must be no more incursions into the base, and they appreciated the vulnerability of the long and insecure perimeter fence.

8. The Chief Constable had a power and duty under section 13 of the Public Order Act 1986 (see below, para 22), if certain conditions were fulfilled, to seek an order prohibiting all processions in the Fairford area for a period, but decided after consideration not to do so. Instead, the Chief Constable established a command structure of officers to control the event. On 17 March 2003, as required by section 11 of the 1986 Act, Gloucestershire Weapons Inspectors gave the Chief Constable written notification of their proposed demonstration, procession or march. The purpose was to protest against war in Iraq and the presence of bombers at RAF Fairford. Protesters would assemble at 12.00 in Fairford High Street, Mill Lane and Park Street. At 1.0 the protesters would march along Horcott Road to the main gate of the base. A petition was to be delivered and flowers laid. The rally at the main gate would last from 1.30 – 4.0 pm. There were to be several speakers. Numbers attending were estimated at 1000 – 5000. The Chief Constable

in response issued a direction under section 12 of the Act, prescribing (in accordance with the notification) the time, place of assembly and procession route, prescribing where the procession route should end and drawing attention to the criminal offence of failing to comply with the conditions laid down. The Chief Constable promulgated several thousand leaflets, provided to websites advertising the event and (in due course) protesters, describing the arrangements and warning that those who deviated from the conditions (as by leaving the prescribed route) were liable to arrest. Attention was drawn to the danger of entering military premises. There were to be designated drop-off points, policed by officers, where protesters would get out of their vehicles. The Chief Constable formulated a detailed plan

“to control the march and protest from the initial assembly area directing march along the prescribed route as per the attached plan (highlighted) and allowi ng the protest to take place in the bell-mouth area of the gate, thereby giving them a point of focus. The protest will be allowed until a predetermined time when they will be encouraged to disperse. In order to ensure the protesters keep to the prescribed route, certain minor roads will be closed as per attached plan.”

Protesters were to be escorted along the procession route by officers. Fencing and barriers were erected along this route and the bell-mouth area of the gate to the base was demarcated by concrete barriers and barbed wire. The Chief Constable’s assessment was that the protesters on 22 March would include hard-line activists intent on violence and entry to the base. The policing operation was the largest ever undertaken by the Gloucestershire Constabulary. Police officers were mustered in large numbers, supported by anti-climbing teams, patrols on both sides of the perimeter fence, dog teams, a member of the Metropolitan Police Public Order Intelligence Unit (to recognise those known to be extreme protestors), a facial recognition team, Forward Intelligence Teams, three Police Support Units (“PSUs”) and helicopters.

9. At 5.30 pm on 21 March 2003 Mr Lambert issued a statutory stop and search authorisation under section 60 of the Criminal Justice and Public Order Act 1994. It applied to an area around Fairford, including Lechlade, and was extended on the following day. At 1.35 pm on 22 March he issued an authority under section 60AA of the 1994 Act, giving power to require the removal of disguises.

10. On the morning of 22 March the claimant was one of about 120 passengers who boarded 3 “Greens of London” coaches at Euston bound for Fairford. It appears that the passengers were a diverse group of varying ages and affiliations including a legal observer and a longstanding female member of CND aged 76. The progress of the coaches was monitored, and at 10.45 am Mr Lambert made the following record in his log:

“Based on intelligence received it is understood that 3 coaches and a van are en route from LONDON carrying items and equipment to disrupt the protest today and gain entry to the air base. The protestors are the ‘Wombles’. A Section 60 is in place and I have asked for an objective to be made for [senior officers] in charge of the two PSU’s on intercept duties to intercept the coaches and van to search and identify any items that may be used. Items on the vehicles are to be seized if they are offending articles and if that is the case, the coaches and van are to be turned around and sent back towards the Metropolitan area. The Metropolitan Police will be asked to pick them up at the M25. They are not to be arrested to prevent a breach of the peace at that particular time, if that is the only offence apparent, as I do not consider there to be an imminent breach of the peace. However they are to be warned if articles are found on the coaches and they arrive at FAIRFORD then I will consider them to be here intent on causing disruption and a breach of the peace and they may find themselves arrested.”

11. Some time before 12.45 pm, the 3 coaches were stopped by the police at a lay-by at Lechlade, less than 5 km by road, 2 km across the fields, from the perimeter fence. Present were Gloucestershire officers, a Metropolitan Police Forward Intelligence Team and three PSUs. There were then thought to be some 3000 people in the assembly area, although this estimate was later halved. The police searched the coaches and found some dust and face masks, 3 crash helmets, hoods, 5 hard hats, overalls, scarves, a can of red spray paint, two pairs of scissors and a safety flare. In the luggage compartment of the first coach the police found 5 polycarbonate home-made shields. All these articles were seized. In some cases the owner of the articles was identified, in others not. It appears that some at least of the passengers were not questioned about their intentions or affiliations, and there is no evidence that any were. Three passengers designated as speakers at the demonstration were allowed to proceed. One passenger was arrested for incitement to cause criminal damage during an earlier incident at Fairford. An officer of the Metropolitan Police identified and recorded the presence of 8 Wombles members.

12. The result of the search was reported to Mr Lambert, who directed at about 2.0 pm that the coaches and passengers be escorted by the police back to London. Having left the coaches during the search, the passengers eventually re-boarded the coaches, under the initial impression (it appears) that they were to proceed to Fairford. The coaches left the lay-by under police escort at 2.30 pm. Officers stood by the doors as the coaches moved off, holding them shut to prevent passengers from disembarking, as some had tried to do on learning that they were to be returned to London. The coaches were driven to the motorway, where police motorcycle outriders prevented them from stopping on the hard shoulder or turning off to motorway services, even

to allow passengers to relieve themselves. Some suffered acute physical discomfort and embarrassment as a result. Officers of the Thames Valley Police and the Metropolitan Police co-operated in this exercise but did so, as it appears, at the instance of the Chief Constable. On arrival in London at 4.55 pm, some passengers jumped out of coaches through the emergency exit and the claimant and others got off her coach when it was held up in a traffic jam.

13.       Mr Lambert has explained his decision in this way:

“My decision not to allow the coaches to proceed to Fairford to protest was based upon:

(i)  The history of the Wombles and Disobedience Action Groups – I was satisfied that hardcore members were on the coaches. (ii)  The intelligence sources leading up to, and on the 22nd March 2003. (iii) The articles seized from passengers on the coach, and those found in communal areas abandoned …

I considered that upon arrival at RAF Fairford a breach of the peace would have occurred. Therefore, had the coaches been permitted to continue to RAF Fairford the protesters on the coaches would have been arrested upon arrival at RAF Fairford, a breach of the peace then being ‘imminent’ …

I therefore concluded that I faced a choice of either allowing the coaches to proceed and managing a Breach of the Peace at RAF Fairford, arresting the occupants of the coaches in order to prevent a Breach of the Peace, or turning the coaches around and escorting them back away from the area ...

I could not discount the potential risk that some peaceful protesters were caught up in the decision not to allow coaches to proceed, but it was not possible to be certain who had brought the articles onto the coach and who were intent on direct action …”

The proceedings

14. On 20 June 2003 the claimant issued an application for judicial review, seeking to challenge the actions of the Chief Constable in (1) preventing her travelling to the demonstration in Fairford, and forcing

her to leave the area, and (2) forcibly returning her to London, keeping her on the coach and preventing her from leaving it until she had reached London. Richards J granted permission to apply, and the case came before the Queen’s Bench Divisional Court (May LJ and Harrison J), which rejected her first complaint but upheld her second: [2004] EWHC 253 (Admin), [2004] 2 All ER 874.

15. In rejecting the claimant’s first complaint, the Divisional Court distinguished between arrest and preventive action short of arrest (para 39). Arrest would not have been lawful at Lechlade since, as Mr Lambert recognised, no breach of the peace was then imminent. But Moss v McLachlan [1985] IRLR 76, discussed below, was held to support the Chief Constable’s case that preventive measures falling short of detention were legitimate. Having referred to articles 10(2) and 11(2) of the European Convention on Human Rights, May LJ (with whom Harrison J agreed) continued:

“39. It is, in my judgment, a question of fact in each case whether preventive measures of this kind are necessary in this context and thus proportionate. For them to be prescribed by law, it is necessary that the law sufficiently defines the circumstances in which the police may lawfully take preventive measures of this kind. In my view, this requirement is in substance satisfied by the judgment of Skinner J in Moss’ case. The essential features are that a senior police officer should honestly and reasonably form the opinion that there is a real risk of a breach of the peace in close proximity both in place and time; that the possibility of a breach must be real; that the preventive measures must be reasonable; and that the imminence or immediacy of the threat to the peace determines what action is reasonable. I would add that the police are entitled to have regard to what is practical and that the number of people from whom a breach of the peace is apprehended may be relevant. The question of imminence is thus relevant to the lawfulness of preventive measures of this kind, but the degree of imminence may not be as great as that which would justify arrest.

40. In the present case, Mr Lambert reasonably and honestly believed that, if the coaches were allowed to proceed to Fairford, there would be breaches of the peace. He was in my judgment in these circumstances lawfully entitled to give instructions for preventive measures. It was his duty to do so. As in Moss’ case, anyone seeking

to override the preventive measures would be obstructing a police officer in the execution of his duty. But Mr Lambert himself acknowledged that the circumstances in the lay-by did not justify the arrest of the coach passengers generally.

41. The principle that the police are, in the circumstances which I have stated, entitled to take preventive measures does not entitle them to take those measures indiscriminately. But there may be circumstances in which individual discrimination among a large number of unco-operative people is impractical. In my judgment, Mr Lambert was entitled to regard the circumstances in the lay-by at Lechlade as such. For these reasons I do not consider that the police action in preventing the coaches from proceeding to Fairford was unlawful. I would reject this part of the claimant’s claim.”

In upholding the claimant’s second claim, May LJ concluded that the claimant had been detained on the coach back to London and that such detention could not be held to be covered by article 5(1)(b) or 5(1)(c) of the Convention. He expressed his conclusion in para 47:

“Upon this view of the law, in my judgment the claimant’s enforced return on the coach to London was not lawful because (a) there was no immediately apprehended breach of the peace by her sufficient to justify even transitory detention, (b) detention on the coach for two-and-a-half hours went far beyond anything which could conceivably constitute transitory detention such as I have described, and (c) even if there had been, the circumstances and length of the detention on the coach were wholly disproportionate to the apprehended breach of the peace.”

16. The Court of Appeal (Lord Woolf CJ, Clarke and Rix LJJ) upheld the Divisional Court’s decision, dismissing an appeal by the Chief Constable and a cross-appeal by the claimant: [2004] EWCA Civ 1639; [2005] QB 678. It considered the claimant’s cross-appeal first and concluded (paras 44-46):

“44. On this aspect of the case, we would adopt a very similar approach to that of May LJ. We agree with him that it is necessary to distinguish between arrest and

preventive action short of arrest, including temporary detention. We regard what is sufficiently ‘imminent’ to justify taking action to prevent a breach of the peace as dependent on all the circumstances. As in Moss’s case, so here, it is important that the claimant was intending to travel in a vehicle if the preventive action had not taken place. The distance involved did not mean that there was no sufficient imminence. What preventive action was necessary and proportionate, however, would be very much influenced by how close in proximity, both in place and time, the location of the apprehended breach of the peace was. The greater the distance and the greater the time involved, the more important it is to decide whether preventive action is really necessary and, if it is necessary, the more restrained the action taken should usually be as there will be time for further action if the action initially taken does not deter. It may be that as the police thought, arrest at the lay-by would have been a disproportionate level of action, but this does not necessarily mean that no action was appropriate.

45. We would see the instant case as being very much on all fours with the decision in Moss’s case which we would endorse. If the police had done no more than direct the passengers to reboard the coach and instructed the driver not to proceed to Fairford, this would have been an appropriate response that was both necessary and proportionate. We will deal with the additional action that the police would have been entitled to take when considering the appeal as opposed to the cross-appeal.

46. Like May LJ, we would regard the ‘real risk’ or ‘close proximity’ test and the ‘imminence’ test as not being in conflict. Action should not be taken until it is necessary and reasonable to take the action on the facts of the particular circumstances. In the present case, on the evidence before us, the alternatives were either taking the preventive action at the lay-by or waiting until the coaches had arrived at Fairford, the site at which the disturbance was feared. To have delayed taking action until the coach passengers reached the air base could have provoked the very disturbance which the preventive action was intended to avoid.”

The court accepted (para 48) that in some situations a breach of the peace could only be prevented if action were taken which would risk affecting wholly innocent individuals. As to the Chief Constable’s appeal, the court considered (para 52) that the passengers were “virtually prisoners” on the returning coaches, that (para 53) the action taken went well beyond anything held to be justified by the existing common law authorities and that (paras 54-55) it was not shown that there were no less intrusive measures that could have been taken. The court did not think it necessary to address article 5 of the Convention.

17. The claimant now appeals, by leave of the House, against the

Court of Appeal’s rejection of her first complaint and the Chief
Constable cross-appeals against its acceptance of her second.

The statutory powers of the police to control public processions and assemblies

18. The Public Order Act 1936 was enacted to give new powers to the police to control public processions and assemblies. It was a response to the violence instigated and provoked by the British Union of Fascists. Thus the Act proscribed (section 1) the wearing of uniforms associated with political organisations and (section 2) the formation of paramilitary organisations. Section 3 empowered a chief officer of police, if he had reasonable grounds for apprehending that a public procession might occasion serious public disorder, to give directions to those organising or taking part in the procession, imposing such conditions as appeared to him necessary for the preservation of public order. Such conditions could prescribe the route to be followed, specify public places not to be entered, and restrict the display of flags, banners and emblems. He was also obliged by section 3(2), outside London (where different rules applied), if of opinion that imposing conditions would not be sufficient to enable him to prevent serious public disorder being occasioned in any particular place, to apply to the local council for an order prohibiting all public processions in that place for a period not exceeding three months. With the consent of the Secretary of State, the council could make such an order. Knowing failure to comply with a direction or condition under the section, or organisation of a prohibited procession, was a criminal offence punishable by imprisonment. Additional offences were also created, punishable by imprisonment: having an offensive weapon at a public meeting or procession without lawful authority (section 4); and using threatening, abusive or insulting words or behaviour in a public place or at a public meeting with intent to provoke a breach of the peace or whereby a breach of the peace was likely to be occasioned (section 5). An additional offence was created under the Public Meeting Act 1908. A constable might arrest without warrant anyone reasonably suspected by him of committing an offence under sections 1, 4 and 5 of the Act (section 7(3)).

19. The 1970s and 1980s witnessed serious and disturbing outbreaks of public disorder, notable among them the disorder in Red Lion Square in 1974, the Brixton riots of 1981 and the miners’ strike of 1984-1985. These prompted a major re-examination of public order law by the Law Commission, the House of Commons Home Affairs Select Committee and the Home Office: see David Feldman, Civil Liberties and Human Rights in England and Wales, 2nd ed, 2002, chapter 18, “Protest and Public Order”, pp 1038-1039. The outcome of this review was the Public Order Act 1986.

20. The 1986 Act created new statutory offences of riot (section 1), violent disorder (section 2), affray (section 3), causing fear or provocation of violence (section 4) and causing harassment, alarm or distress (section 5). The Act has since been amended.

21. Part II of the 1986 Act revised the 1936 provisions governing the control by the police of public processions and assemblies. In section 11 it requires advance notice to be given to the police, within a specified period and with certain specified particulars, of any proposal to hold a public procession intended (broadly) to publicise a cause or demonstrate support for or opposition to a cause or action. Subject to statutory defences, it is an offence to hold a procession without giving notice or adhering to the notified plan. But by virtue of section 12(1) the chief officer of police or (as the case may be) the senior police officer may, as under the 1936 Act, give directions imposing conditions on those organising or taking part in the procession if he reasonably believes that

“(a)	it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or
(b)	the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do.”

Such directions which must be in writing may be given by the chief officer of police in relation to a procession which is intended to be held but has not yet begun to assemble, and by the senior police officer

present at the scene (not necessarily in writing) in relation to a procession which is being held or where people are assembling with a view to taking part in an intended procession. Non-compliance with directions, subject to statutory defences, is a criminal offence. In the present case, as recorded above, Gloucestershire Weapons Inspectors gave due notice under section 11, and the directions given by the Chief Constable substantially embodied the proposal they put forward. It has not been suggested that any further directions were given under section 12.

22.       Section 13 of the 1986 Act replaces section 3(2) of the 1936 Act.

It provides in (1):

“If at any time the chief officer of police reasonably believes that, because of particular circumstances existing in any district or part of a district, the powers under section 12 will not be sufficient to prevent the holding of public processions in that district or part from resulting in serious public disorder, he shall apply to the council of the district for an order prohibiting for such period not exceeding 3 months as may be specified in the application the holding of all public processions (or of any class of public procession so specified) in the district or part concerned.”

Again the council may make such an order with the consent of the Secretary of State. Again, different provisions apply to London. Again, non-compliance is a criminal offence.

23. Section 14 of the 1986 Act enables the chief officer of police or the senior police officer to impose conditions on the holding of any public assembly if, mutatis mutandis, he reasonably believes either of the matters in section 12(1) above. The remainder of section 14 follows section 12. But the Act contains no power, comparable with section 13, to prohibit the holding of a public assembly not involving a trespass.

24.       Section 60 of the Criminal Justice and Public Order Act 1994, as

amended, provides:

“(1)	If a police officer of or above the rank of inspector

reasonably believes—

(a)	that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence, or
(b)	that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason,

he may give an authorisation that the powers conferred by this section are to be exercisable at any place within that locality for a specified period not exceeding 24 hours.”

A more senior officer may extend that period for a further period of 24 hours. “Dangerous instruments” means instruments with a blade or a sharp point. “Offensive weapon” has the meaning defined in section 1(9) of the Police and Criminal Evidence Act 1984. Where, as in this case, an authorisation is given under this section, a constable in uniform may stop and search any pedestrian or anything carried by the pedestrian, and may stop any vehicle and search the vehicle, its driver and any passenger, in each case for offensive weapons or dangerous instruments.

25. Section 60 of the 1994 Act is reinforced by section 60AA of that Act, which provides for a supplementary authorisation to be given where a police officer of or above the rank of inspector reasonably believes that activities may take place in his area which are likely (if they take place) to involve the commission of offences and that it is expedient to give an authorisation under the section to prevent or control such activities. When, as in this case, an authorisation is given under the section, a constable in uniform may require any person to remove any item which the constable reasonably believes that the person is wearing wholly or mainly to conceal his identity and may seize any item which the constable reasonably believes any person intends to wear wholly or mainly for that purpose.

26. Since 1986, as Professor Feldman points out (ibid., p 1039), successive governments have introduced legislation to create new public order offences and to extend the powers of the police, local authorities and courts to regulate access to and behaviour in public places. But neither during the consideration which preceded the 1986 Act, nor since, has any review been undertaken of powers to prevent a breach of the peace. Those powers depend on the common law, which must now be examined.

Breach of the peace

27. The legal concept of a breach of the peace, although much used, was for many years understood as a term of broad but somewhat indeterminate meaning. In R v Howell (Errol) [1982] QB 416 the Court of Appeal heard detailed argument on the meaning of the expression, an issue raised by the facts of the case. The court concluded that the essence of the concept was to be found in violence or threatened violence. It ruled (at p 427):

“We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender wi thout warrant.”

28. In Steel and Others v United Kingdom (1998) 28 EHRR 603, the five applicants had all been arrested for breach of the peace and contended, as one of the grounds of their applications to the authorities in Strasbourg, that breach of the peace was too ill-defined a concept to meet the requirement that the ground of their arrest be “prescribed by law” within the meaning of article 10(2) of the European Convention. This complaint was successfully repelled by the British Government. The Commission (pp 627-628, paras 146-148) considered that the concept had been defined by the passage in R v Howell quoted above. The court, also citing that passage (p 610, para 25), considered that the concept had been clarified by the English courts over the past two decades, and now had a meaning which was sufficiently established (p 637, para 55). The accuracy of this definition has been generally accepted, and was not in issue before the House. A breach of the peace is not, as such, a criminal offence, but founds an application to bind over.

The common law power to prevent a future breach of the peace

29. 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. This appeal is only concerned with the third of these situations.

30. The leading authority, from which the House has not been invited to depart and which therefore binds it and all lower courts in England and Wales, is Albert v Lavin [1982] AC 546. But that case, decided in December 1981, reflected the trend of existing authority. Thus in Humphries v Connor (1864) 17 ICLR 1, 8-9, Fitzgerald J, although doubtful about the outcome of the case, accurately summarised a constable’s duty:

“With respect to a constable, I agree that his primary duty is to preserve the peace; and he may for that purpose interfere, and, in the case of an affray, arrest the wrongdoer; or, if a breach of the peace is imminent, may, if necessary, arrest those who are about to commit it, if it cannot otherwise be prevented.”

(This case is one of a number where the conduct restrained is not in itself disorderly but is likely to provoke disorder by others. Such cases are not directly relevant to the present case.) Professor Glanville Williams (“Arrest for Breach of the Peace” [1954] Crim LR 578, 586) observed:

“It seems clear that there may be an arrest for breach of the peace which is reasonably apprehended in the immediate future, even though the person arrested has not yet committed any breach.”

In a summary of King v Hodges [1974] Crim LR 424, 425, the police officer’s powers were said to be exercisable when he reasonably believed that a breach of the peace was about to take place, and reference was made in the commentary to the existence of numerous

examples of actions other than arrest to prevent a breach of the peace. In his Divisional Court judgment in Albert v Lavin, above, Hodgson J (at p 553) ruled:

“It is however clear law that a police officer, reasonably believing that a breach of the peace is about to take place, is entitled to take such steps as are necessary to prevent it, including the reasonable use of force: King v Hodges [1974] Crim LR 424 and Piddington v Bates [1961] 1 WLR 162. If those steps include physical restraint of someone then that restraint is not an unlawful detention but a reasonable use of force. It is a question of fact and degree when a restraint has continued for so long that there must be either a release or an arrest, but on the facts found in this case it seems to me to be clear that that point had not been reached. Obviously where a constable is restraining someone to prevent a breach of the peace he must release (or arrest) him as soon as the restrained person no longer presents a danger to the peace. In this case the justices found that the defendant continued in breach of the peace up to the time when he assaulted the constable.”

This judgment was given before, and was cited to the court although not referred to in the judgment in, R v Howell, above. In that case it was recognised (p 426) that a constable, or an ordinary citizen, has a power of arrest where there is reasonable apprehension of imminent danger of a breach of the peace:

“We hold that there is power of arrest for breach of the peace where: (1) a breach of the peace is committed in the presence of the person making the arrest or (2) the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach or (3) … ”

31. In Albert v Lavin, above, both the defendant (Mr Albert) and the prosecutor (Mr Lavin, a constable who was at the time off duty and in plain clothes) were waiting for a bus. When the bus arrived, the defendant pushed past a number of people ahead of him in the queue, who not surprisingly objected, and the constable tried to obstruct his entry to the bus by standing in his way. The defendant pushed past onto

the step of the bus, turned, grabbed the constable’s lapel and made to hit him. The constable, to protect himself, pulled the defendant from the bus and away from the queue. The defendant again tried to hit the constable, who said he would arrest him unless he stopped struggling, but he struck the constable several times and the constable arrested him for assaulting a constable in the execution of his duty. Before the justices, the defendant contended that the constable had not been acting in the execution of his duty. In convicting the defendant (whom they conditionally discharged) the justices found (pp 549, 551) that because of the reactions of the other members of the queue when the defendant pushed past them the constable had reasonably expected a breach of the peace to be about to take place and so he had been entitled to use reasonable force to prevent the breach of the peace. Much of the judgment of Hodgson J in the Divisional Court relied on a supposed principle that only a constable could detain a man against his will without arresting him, and addressed the question whether the defendant knew or should have known that Mr Lavin was a constable. This, as Lord Diplock pointed out at p 565, with the agreement of all other members of the House, was a question that did not arise, since the true principle was

“that every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although, except in the case of a citizen who is a constable, it is a duty of imperfect obligation.”

32. It is uncertain whether the Divisional Court was referred to Albert v Lavin in Moss v McLachlan [1985] IRLR 76, an authority on which the Chief Constable strongly relied and which is discussed in more detail below. But the court in Moss was referred to R v Howell, above, and cited the ruling that “there is power of arrest for breach of the peace where … (2) the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach …”

33. In Foulkes v Chief Constable of the Merseyside Police [1998] 3 All ER 705 the plaintiff, a husband, father and joint owner of the

matrimonial home, was locked out of it at 9.0 o’clock in the morning following a family argument which began the night before and was resumed in the morning. He wished to re-enter the house, and summoned the police to assist him, but they discouraged him from seeking to re-enter and in the end arrested him, fearing that his actions outside the property would cause a breach of the peace. His claim for wrongful arrest and false imprisonment failed in the county court but succeeded on appeal. Beldam LJ, giving the leading judgment in the Court of Appeal, cited Lord Diplock’s ruling in Albert v Lavin and continued (at p 711):

“In my view, the words used by Lord Diplock and in the other authorities show that where no breach of the peace has taken place in his presence but a constable exercises his power of arrest because he fears a [future] breach, such apprehended breach must be about to occur or be imminent. In the present case PC McNamara acted with the best of intentions. He had tried persuasion but the plaintiff refused to be persuaded or to accept the sensible guidance he had been given but in my judgment that was not a sufficient basis to conclude that a breach of the peace was about to occur or was imminent. There must, I consider, be a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully. The factors identified by the recorder in the present case do not in my judgment measure up to a sufficiently serious or imminent threat to the peace to justify arrest.”

The case raised no issue about the lawfulness of coercive action other than arrest. In Redmond-Bate v Director of Public Prosecutions (1999) 163 JP 789, 791, the agreed issue was whether it was reasonable for a constable, in the light of what he perceived, to believe that the appellant, a female lay preacher, was “about to cause” a breach of the peace, a test equated with imminence. In other cases, of which Williamson v Chief Constable of the West Midlands Police [2003] EWCA Civ 337, [2004] 1 WLR 14, para 19, is an example, Lord Diplock’s ruling in Albert v Lavin has been cited and applied.

Freedom of expression and assembly

34. The approach of the English common law to freedom of expression and assembly was hesitant and negative, permitting that which was not prohibited. Thus although Dicey in An Introduction to the Study of the Law of the Constitution, 10th ed (1959), in Part II on the “Rule of Law”, included chapters VI and VII entitled “The Right to Freedom of Discussion” and “The Right of Public Meeting”, he wrote of the first (at pp 239-240) that “At no time has there in England been any proclamation of the right to liberty of thought or to freedom of speech” and of the second (at p 271) that “it can hardly be said that our constitution knows of such a thing as any specific right of public meeting”. Lord Hewart CJ reflected the then current orthodoxy when he observed in Duncan v Jones [1936] 1 KB 218, 222, that “English law does not recognize any special right of public meeting for political or other purposes”. The Human Rights Act 1998, giving domestic effect to articles 10 and 11 of the European Convention, represented what Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 163 JP 789, 795, aptly called a “constitutional shift”.

35. Article 10 confers a right to freedom of expression and article 11 to freedom of peaceful assembly. Neither right is absolute. The exercise of these rights may be restricted if the restriction is prescribed by law, necessary in a democratic society and directed to any one of a number of specified ends.

36. The Strasbourg court has recognised that exercise of the right to freedom of assembly and exercise of the right to free expression are often, in practice, closely associated: see, for example, Ezelin v France (1991) 14 EHRR 362, paras 37, 51; Djavit An v Turkey (2003) Reports of Judgments and Decisions, 2003-III, p 233, para 39; Christian Democratic People’s Party v Moldova (App no 28793/02, 14 May 2006, unreported) para 62; Öllinger v Austria (App no 76900/01, 29 June 2006, unreported), para 38. The fundamental importance of these rights has been stressed. Thus in Steel and Others v United Kingdom (1998) 28 EHRR 603, para 101, freedom of expression was said to constitute

“an essential foundation of democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment.”

In Ezelin v France, above, para 53, the court considered

“that the freedom to take part in a peaceful assembly – in this instance a demonstration that had not been prohibited – is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion.”

In Ziliberberg v Moldova (App no 61821/00, 4 May 2004, unreported), para 2, the court observed at the outset that

“the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society.”

It is the duty of member states to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully: Plattform “Ärzte für das Leben” v Austria (1988) 13 EHRR 204, para 34; Steel and Others v United Kingdom (1998) 28 EHRR 603, 632, para 170 (Commission).

37. Thus the protection of the articles may be denied if the demonstration is unauthorised and unlawf ul (as in Ziliberberg, above) or if conduct is such as actually to disturb public order (as in Chorherr v Austria (1993) 17 EHRR 358). But (Ziliberberg, above, para 2)

“an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour.”

Any prior restraint on freedom of expression calls for the most careful scrutiny (The Sunday Times v United Kingdom (No 2) (1991) 14 EHRR 229, para 51; Hashman and Harrup v United Kingdom (1999) 30 EHRR 241, para 32). The Strasbourg court will wish to be satisfied not merely that a state exercised its discretion reasonably, carefully and in good faith, but also that it applied standards in conformity with

Convention standards and based its decisions on an acceptable assessment of the relevant facts (Christian Democratic People’s Party v Moldova, above, para 70).

The appeal: the argument

38. Reduced to essentials, the argument of Mr Emmerson QC for the claimant rested on four propositions:

(1) Subject to articles 10(2) and 11(2) of the European Convention, the claimant had a right to attend the lawful assembly at RAF Fairford in order to express her strong opposition to the war against Iraq.

(2) The conduct of the Chief Constable, through Mr Lambert, in stopping the coach on which the claimant was travelling at Lechlade and not allowing it to continue its intended journey to Fairford, was an interference by a public authority with the claimant’s exercise of her rights under articles 10 and 11.
(3) The burden of justifying an interference with the exercise of a Convention right such as those protected by articles 10 and 11 lies on the public authority which has interfered with such exercise, in this case the Chief Constable.

(4)	The interference by the Chief Constable in this case was for a legitimate purpose but (a) was not prescribed by law, because not warranted under domestic law, and (b) was not necessary in a democratic society, because it was (i) premature and
(ii) indiscriminate and was accordingly
disproportionate.

Mr Freeland QC, for the Chief Constable, did not contest the correctness of propositions (1), (2) and (3), and it was common ground that the Chief Constable acted in the interests of national security, for the prevention of disorder or crime or for the protection of the rights of others, these being legitimate purposes under articles 10(2) and 11(2). The remainder of what I have called proposition (4) was, however, strongly contested between the parties.

39. Mr Emmerson argued that the Chief Constable’s interference was not prescribed by law because not warranted by domestic legal authority. According to that authority there is a power and duty resting on constable and private citizen alike to prevent a breach of the peace which reasonably appears to be about to be committed. That is the test laid down in Albert v Lavin, which means what it says. It refers to an event which is imminent, on the point of happening. The test is the same whether the intervention is by arrest or (as in Humphries v Connor, King v Hodges and Albert v Lavin itself) by action short of arrest. There is nothing in domestic authority to support the proposition that action short of arrest may be taken when a breach of the peace is not so imminent as would be necessary to justify an arrest. Here, Mr Lambert did not think a breach of the peace was so imminent as to justify an arrest. He recorded that judgment at 10.45 am. There is no evidence to suggest that his judgment ever altered. It was, in any event, plainly correct. It did not and could not appear that a breach of the peace was about to be committed at Lechlade. The conduct of Mr Lambert was not governed by some general test of reasonableness but by the Albert v Lavin test of whether it reasonably appeared that a breach of the peace was about to be committed. By that standard Mr Lambert’s conduct, however well-intentioned, was unlawful in domestic law. If he was entitled to intercept the coaches (otherwise than to search them) at Lechlade, he was duty-bound to do so. If he was duty-bound to do so, private citizens were similarly bound to do so. But it would be extravagant to suggest that a private citizen who failed to intercept the coaches at Lechlade would be acting in breach of his duty, and such a power and duty could not be accommodated within the carefully-balanced regulatory scheme established by Parliament.

40. Mr Freeland took issue with this argument. The true principle of domestic law is, he submitted, that the police may and must do whatever they reasonably judge to be reasonable to prevent a breach of the peace. The only legal restriction on what steps may be taken by the police is one of reasonableness. There is no absolute requirement of imminence before the power to take reasonable steps arises, although questions of imminence will be relevant to what is reasonable. A breach of the peace need not be apprehended to take place in the immediate future for the power and duty to prevent it to arise. Mr Lambert’s action was judged by the courts below to be reasonable, and it therefore met the standard prescribed by domestic law. A similar test of reasonableness, he suggested, was to be read into section 24 of the Police and Criminal Evidence Act 1984.

41. Mr Freeland drew attention to Minto v Police [1987] 1 NZLR 374, 377, where Cooke P, citing and endorsing Lord Diplock’s ruling in Albert v Lavin, observed that immediacy is in part a question of degree and is highly relevant to the reasonableness of the action taken. Mr Freeland also relied, among other authorities, on Piddington v Bates [1961] 1 WLR 162. A printers’ strike was in progress, and a printing works with two entrances was picketed. A police officer decided that there should be no more than two pickets at each entrance. The defendant wished to join the two pickets at the rear entrance. The officer said two pickets were enough. The defendant pushed gently past and the officer gently arrested him, and charged him with obstructing a constable in the execution of his duty. There was no disorder, and no violence was threatened or offered by any of the pickets or other persons present. The defendant’s appeal by case stated was dismissed by the Divisional Court for reasons given, without any discussion of authority, in a brief extempore judgment of Lord Parker CJ. He concluded that the officer had reasonable grounds for anticipating that a breach of the peace was a real not a remote possibility. A police officer charged with the duty of preserving the peace must be left to take such steps as on the evidence before him he thinks are proper.

42. Mr Freeland relied, more strongly, on Moss v McLachlan [1985] IRLR 76. The factual background to this case was the violent conflict in the Nottinghamshire coalfields between striking miners who were members of the National Union of Mine Workers, and working miners, many of them members of the Union of Democratic Mine Workers. The latter were determined to continue working, the former equally determined to stop them. The police struggled to keep the peace. There had been some ugly clashes. The appellants were four of about sixty striking miners intent on a mass demonstration at one of several nearby collieries. They were stopped by the police when less than five minutes’ journey from the nearest pit, where the police feared a violent episode. The men tried to push on and were arrested. Albert v Lavin, if cited, was not referred to in the judgment of the court given by Skinner J, but he accepted (para 20) a test of “close proximity both in place and time” and a breach of the peace was held to be “imminent and immediate”. The court cited with approval the observation of Lord Parker CJ in Piddington v Bates that the police must anticipate a real, not a remote, possibility of breach, preferring that test, if different, to the “immediate future test” put forward in R v Howell [1982] QB 416, 426.

43. Mr Emmerson advanced a further, but linked, reason why Mr Lambert’s interference with the claimant’s right to demonstrate, by preventing her going beyond Lechlade, was not prescribed by law. It was that domestic law only permitted action to prevent a breach of the peace “by the person arrested” (R v Howell, above, p 426) or against “the person who is … threatening to break the peace” (Albert v Lavin, above, per Lord Diplock, p 565). Even if, contrary to his submission, some of those on board the coaches reasonably appeared to be about to breach the peace, there was no reasonable ground to infer that all of them were, or that the claimant was. Mr Freeland answered this “causal nexus” submission by relying on the general test of reasonableness already summarised, and by pointing to the impracticability of differentiating, at Lechlade, between those (if any) who were and those who were not about to breach the peace.

44. Mr Freeland submitted that Mr Lambert could have relied

(although he did not) on section 3(1) of the Criminal Law Act 1967,
which provides that

“A person may use such force as is reasonable in the
circumstances in the prevention of crime … ”

This section provides a ground of justification where force has been used. But it has no application here, since during the period which is the subject of the claimant’s appeal Mr Lambert used no force, and his avowed object in acting as he did was to avert a breach of the peace, which (as already pointed out) is not in domestic law a crime.

45. I am persuaded, for very much the reasons advanced by Mr Emmerson (paras 39 and 43 above), that the Chief Constable’s interference with the claimant’s right to demonstrate at a lawful assembly at RAF Fairford was not prescribed by law. I attach weight to certain considerations in particular.

46. First, in the 1986 Act Parliament conferred carefully defined powers and imposed carefully defined duties on chief officers of police and the senior police officer. Offences were created and defences provided. Parliament plainly appreciated the need for appropriate police powers to control disorderly demonstrations but was also sensitive to the democratic values inherent in recognition of a right to demonstrate. It would, I think, be surprising if, alongside these closely defined powers and duties, there existed a common law power and duty, exercisable and imposed not only by and on any constable but by and on every member of the public, bounded only by an uncertain and undefined condition of reasonableness.

47. Secondly, and subject to the possible exception of Piddington v Bates, above, I find little trace of a broad reasonableness test in any of the authorities. It is not a test prescribed by the law as it stands. I respectfully regard Piddington v Bates as an aberrant decision: the judgment showed no recognition that the police, in this context, enjoyed no powers not enjoyed by the private citizen, and the test applied was inconsistent both with earlier authority and that later laid down authoritatively in Albert v Lavin. It is not enough to justify action that a breach of the peace is anticipated to be a real possibility, and neither constables nor private citizens are empowered or bound to take such steps as on the evidence before them they think proper.

48. Thirdly, I cannot accept that a general test of reasonableness is to

be read into section 24 of the Police and Criminal Evidence Act 1984.
At the relevant time, section 24(7) of the Act provided:

“A constable may arrest without a warrant—

(a)	anyone who is about to commit an arrestable offence;
(b)	anyone whom he has reasonable grounds for suspecting to be about to commit an arrestable offence.”

This propounds a simple and readily intelligible test, however difficult the judgment for which it will on occasion call. It plainly reflects the common law rule where a breach of the peace is apprehended. Had Parliament intended to confer a power of anticipatory arrest whenever it was reasonable to make an arrest, it would have laid down that rule. As it is, there is no ground for glossing the statute.

49. I would observe , fourthly, that Albert v Lavin laid down a simple and workable test readily applicable to constable and private citizen alike. It recognises the power and duty to act in an emergency to prevent something which is about to happen. There is very unlikely to be doubt about who to take action against, since this will be apparent to the senses of the intervener. Thus the difficulty which confronted the police at Lechlade can scarcely arise.

50. Fifthly, and despite the significance attached to this distinction by the courts below, I find little support in the authorities for the proposition that action short of arrest may be taken to prevent a breach of the peace which is not sufficiently imminent to justify arrest. As I read the authorities they assimilate the two situations, while of course recognising the desirability of taking action no more intrusive than is reasonably necessary to prevent the apprehended breach of the peace. Mr Lambert did not, quite correctly in my opinion, consider that the claimant could properly be arrested at Lechlade. It followed that he could not lawfully take action short of arrest either.

51. Sixthly, I would respectfully differ from the Court of Appeal’s conclusion (para 45 of the judgment) that the present case is “very much on all fours with the decision in [Moss v McLachlan, above]”. With four members of one belligerent faction within less than five minutes of confronting another belligerent faction, and no designated, police- controlled, assembly point separated from the scene of apprehended disorder, as in the centre of Fairford, it could plausibly be held in Moss that a breach of the peace was about to be committed by those whose onward progress the police decided to block. Albert v Lavin was not expressly relied on, but a very similar test was applied (although reliance was also placed on what I have described as the aberrant decision in Piddington v Bates). The court’s judgment was one which, as my noble and learned friend Lord Brown of Eaton-under-Heywood suggests, carried the notion of imminence to extreme limits, but was, I think, open to it. It was a situation very different from the present when 120 passengers, by no means all of whom were or were thought to be Wombles members, were prevented from proceeding to an assembly point which was some distance away from the scene of a lawful demonstration.

52. I would add, lastly, that if (on which I express no opinion) the public interest requires that the power of the police to control demonstrations of this kind should be extended, any such extension should in my opinion be effected by legislative enactment and not judicial decision. As the Strasbourg authorities referred to in paras 35 to 37 above make clear, article 10 and 11 rights are fundamental rights, to be protected as such. Any prior restraint on their exercise must be scrutinised with particular care. The Convention test of necessity does not require that a restriction be indispensable, but nor is it enough that it be useful, reasonable or desirable: Handyside v United Kingdom (1976) 1 EHRR 737, para 48; Silver v United Kingdom (1983) 5 EHRR 347, para 97. Assessment of whether a new restriction meets the exacting Convention test of necessity calls in the first instance for the wide consultation and inquiry and democratic consideration which should characterise the legislative process, not the more narrowly focused process of judicial decision. This is not a field in which judicial development of the law is at all appropriate.

144. As to the first point, preventive action may on any view be taken by a policeman or other citizen against the person reasonably apprehended to be committing or about to commit the breach of peace: see paragraph 138 above. As to action against others, in Ezelin v France (1991) 14 EHRR 362 the Commission considered that

“generally speaking, an individual does not cease to enjoy the right to freedom of peaceful assembly simply because sporadic violence or other punishable acts take place in the

course of the assembly, if he himself remains peaceful in

his intentions and behaviour” (paragraph 34).

The Court said :

“The Court considers, however, that the freedom to take part in a peaceful assembly – in this instance a demonstration that had not been prohibited – is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion” (paragraph 53).

In Nicol and Selvanayagam v Director of Public Prosecutions (1995) 160 JP 155, Simon Brown LJ, as my noble and learned friend then was, considered that a complaint made seeking under section 115 of the Magistrates’ Courts Act 1980 to have the magistrates’ court “adjudge any other person to enter into a recognisance …. to keep the peace or to be of good behaviour towards the complainant” would “surely not” be found proved

“if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course it would be if the defendant’s conduct was not merely lawful but such as in no material way interfered with the other’s rights.”

In Redmond-Bate v Director of Public Prosecutions (1999) 163 JP 789, 796-797, Sedley LJ rejected a proposition of law advanced in the case stated before him to the effect that “Lawful conduct can, if persisted in, lead to conviction for wilful obstruction of a police officer”, saying:

“This proposition has, in my judgment, no basis in law. A police officer has no right to call upon a citizen to desist from lawful conduct. It is only if otherwise lawful conduct gives rise to a reasonable apprehension that it will, by interfering with the rights or liberties of others, provoke violence which, though unlawful, would not be entirely

unreasonable that a constable is empowered to take steps
to prevent it.”

145. The last two authorities indicate that a policeman or other citizen may take preventive action against a person who by interference with the rights or liberties of others is likely to provoke violence. Examples are provided by Albert v Lavin (queue-barging causing angry reactions from other queue members), Nicol and Selvanayagam v Director of Public Prosecutions (1995) 160 JP 155 (disruption of angling), Steel v United Kingdom (disruption of a shoot and invasion of a motorway construction site) and Chorherr v Austria (1993) 17 EHRR 358 (two demonstrators, with large placards affixed to their rucksacks proclaiming “Austria needs no fighter planes”, blocking the view of, and arousing increasingly loud protests from, spectators of a march past).

146. There are however also situations in which a person deliberately engages in provocative conduct which it might be difficult to describe as interfering with the rights or liberties of others, and causes in reaction a breach of the peace or an imminent likelihood of a breach of the peace by some other person(s). In these situations, it has also been recognised that the police or presumably any citizen has a right (and in the case of the police a positive duty) to take preventive action against the person committing the provocation: see eg Wise v Dunning [1902] 1 KB 167 (gestures highly insulting to Roman Catholic Liverpudlians entitling the magistrates to bind over). Another example may be Humphries v Connor (1864) 17 I CLR 1, where the Court of Queen’s Bench in Ireland (Fitzgerald J dubitante) held it to be a valid defence to an action for assault against a constable for removing from the plaintiff a party emblem consisting of an Orange lily that her “wearing [t]hereof was calculated and tended to cause animosity” on the part of others, who were in fact provoked and were following her in a threatening manner. Hayes J spoke (at p 8) of the wearer as “wantonly provoking” a breach of the peace, but Fitzgerald J was troubled by the absence of any positive averment about the wearer’s state of mind. (The fact that the constable had, very properly, first requested and the wearer had refused to remove the emblem means that the case may be better viewed in the context of a principle such as that discussed in the next three paragraphs of this judgment, if such removal was the only possible way of avoiding a breach of the peace.)

147. The situations which I have identified in the last three paragraphs seem to me the only situations in which a bind over to keep the peace can be required or any other preventive step taken against a person on the ground that it can, sensibly or properly, be said that s/he was about to cause, or actually causing, a breach of the peace. But are these the only situations in which freedom of assembly may be restricted? Some authorities suggest a principle whereby, if it is the only way to prevent a third party (A) causing a breach of the peace, a police officer (or justice of the peace) may request another person (B) to desist from entirely lawful and innocent conduct, and, if B refuses to desist, may physically restrain B or charge B with wilfully obstructing the police officer (or justice of the peace) in the execution of her or his duty. Obstruction may consist in persisting in conduct of a positive nature which is, taken by itself, entirely lawful: cf eg Dibble v Ingleton [1972] 1 QB 480. Perhaps the requisite duty may be found in the general duty of the police and justices to prevent a breach of the peace, and, in the consideration that, if the only way that a police officer has of avoiding a breach of the peace by A is to enlist the assistance of B by asking B to desist from otherwise entirely lawful and innocent conduct, then B as a citizen comes under a duty to afford that assistance when sought. There is practical attraction in such a principle.

148. In the event, it is unnecessary on this appeal to reach a concluded opinion as to whether and how far such a principle exists or survives, at common law or now under the European Convention. Assuming, as I shall for present purposes, that it does, its application must, as I have indicated, be confined to rare situations where the only way to avoid a reasonably apprehended and imminent breach of the peace being caused by others is to restrict the freedom of assembly and expression of entirely innocent persons – that is, persons not apprehended to be about to start a breach of the peace themselves or to cause one by interfering with the rights or liberties of, or provoking, others. The Court of Appeal in Ireland held in O’Kelly v Harvey (1883) 14 LR Ir 104 that it was legitimate for a justice of the peace to request the dispersal of a meeting and, upon those present failing to disperse, to lay hands on one of them to achieve such dispersal, if the justice of the peace “had reasonable ground for his belief that by no other possible means could he perform his duty of preserving the public peace” (per Law C at p112, and cf p110 – my underlining).

149. As to the European Convention on Human Rights, Mr Pannick QC pointed out that the European Commission and Court have accepted the legitimacy of general statutory restrictions on demonstrations in the form of a public procession, where necessary to avoid a breach of the peace: see Christians against Racism and Fascism v United Kingdom (1980) 21 DR 138 and Ziliberberg v Moldova (Application No 61821/00, decision of 4 May 2004). So the general statements in Ezelin (cf paragraph 144 above) may by parity of reasoning be subject to a similar qualification which would permit preventive action against an innocent person where it was reasonably apprehended that there was no other possible means of avoiding an imminent breach of the peace. On that assumption, a principle permitting such action in such a case would also appear to be sufficiently clear and certain to be considered as “prescribed by law”. But the European Court has at all times also stressed the importance of the rights of freedom of assembly and expression and that states have positive obligations to take steps to facilitate their exercise (cf paragraph 136 above). So, wherever possible, the focus of preventive action should, on any view, be on those about to act disruptively, not on innocent third parties.

150. In domestic law, the closest English cases to the present are two cases where convictions were upheld for wilfully obstructing the police in the execution of their duty after refusals to obey police directions to desist from lawful conduct which it was found that the police reasonably apprehended would be followed by a breach of the peace. One is Moss v McLachlan (where striking miners intent on a mass picket or demonstration at one of several pits were directed not to proceed to their destination). The other is Duncan v Jones [1936] 1 KB 218 (where Mrs Duncan was directed to address a public meeting in another location). Both decisions are readily distinguishable on their facts from the present appeal. But I have concerns about the actual approach and reasoning in each. In relation to Moss v. McLachlan I am left unclear into which of the different categories mentioned in paragraphs 144/146 and 147/149 above the case should on the facts be regarded as falling. The result is more easily justified if the miners’ conduct was of a character described in paragraphs 1445/146 above, but there appears to have been no clear finding on this. Secondly and in any event, I am concerned that the Divisional Court may have materially misdirected itself. True, it did at the end of its judgment express an overall conclusion that a breach of the peace was “not only a real possibility, but also, because of the proximity of the pits and the availability of the cars, imminent, immediate and not remote” (paragraph 27). But in earlier paragraphs the court stressed its view that preventive action was justified by the “real” possibility of a breach and that “the imminence or immediacy of the threat determines what action is reasonable” (paragraph 24). It also indicated approval of Lord Parker CJ’s statement in Piddington v Bates [1960 3 All ER 660, 663 that “a police officer charged with the duty of preserving the Queen’s Peace must be left to take such steps as, on the evidence before him, he thinks proper” (paragraph 26). There exists in my view the possibility that the views expressed in paragraphs 24 and 26 shaped the conclusions about imminence in paragraph 27. The magistrates in Moss v McLachlan found that “the police honestly and on reasonable grounds feared that there would be a breach of the peace if there was a mass demonstration” at whichever colliery the miners proceeded to (paragraph 13), although they apparently also spoke of “police suspicions that the gathering of a large picket would lead to a breach of the peace” (paragraph 16). The effect of the police action in Moss v McLachlan was to preclude any mass demonstration or picket at any of the four neighbouring colleries, on the basis of a general apprehension of a breach of the peace there because there had been breaches of the peace at colleries in the Nottinghamshire area in the previous days or weeks. I believe that, both at common law and certainly since the Human Rights Act, the court’s scrutiny of such factual and legal issues should now be closer than is suggested in Moss v McLachlan.

151. In Duncan v Jones, the facts are either reported or were investigated in so limited a way that the merits or demerits of the result are difficult to address. There is a suggestion in Lord Hewart CJ’s judgment that the previous disturbance had been on account of (“propter”) and not merely post the previous meeting held over a year before by the appellant, but what precisely was meant thereby, what Mrs Duncan had said during the prior meeting, why the previous year’s disturbance had resulted and so on what basis it could reasonably be apprehended that a breach of the peace would recur a year later and whether there was any preventive action that could have been taken in relation to those who it was feared would create a disturbance are less than clear.

152. The second point assumes (contrary to my view) that a reasonable apprehension of an imminent breach of the peace could be said to exist while the coaches and their remaining passengers were at Lechlade, so that some form of preventive action was permissible against someone. The question then is whether the preventive action actually taken was justified so far as it concerned the appellant, Ms Laporte. In my opinion, it was not, because it has not been shown to have been either reasonable or proportionate.

153. The action taken was general and indiscriminate. The police redirected and returned to London all the 120 passengers who arrived on the three coaches at Lechlade. The only exceptions were, apparently, three passengers who were due to speak at Fairford and persuaded the police to allow them to proceed there and a few others who were able to leave the layby on foot during the halt at Lechlade. The police direction and the return took place pursuant to a pre-set plan, recorded in Chief Superintendent Lambert’s log at 10.45 a.m., whereby the three coaches were to be sent back, if any offending articles were found. In the event, the number and nature of offending articles found was very limited (cf paragraph 11 of Lord Bingham’s opinion), and those that were found were seized. But the plan was nevertheless implemented in relation to all remaining passengers at Lechlade.

154. Throughout the relevant period, the log consistently refers to the occupants of the coaches generically as “the ‘Wombles’”. It does so on seven occasions in all, the first at 10.45 when the plan was recorded, and five times during the period at Lechlade before the direction for return given at 13.55 and implemented at 14.30. The recorded explanation of the direction was simply that, in view of the articles found, the passengers were “making their way here to create a breach of the peace” or “intent on causing a BOP at airbase”. But, after the coaches had been stopped in the layby and their passengers had been observed there for a long period (nearly an hour and a half by 13.55), there was or should have been no longer a basis for categorising them all indiscriminately as potentially violent “Wombles”. The police intelligence officers present at Lechlade identified no more than eight of the coach passengers as known Wombles (with one other passenger being arrested for an earlier offence at Fairford), a number which could on the face of it have been easily managed at Fairford. The demonstration was organised by the Gloucestershire Weapons Inspectors, an organisation which there was no reason to suspect of any plan to breach the peace and which had duly notified the demonstration to the police. White suits found on the coaches were the uniform of the Gloucestershire Weapons Inspectors as well as worn by Wombles. There was nothing about most of the passengers, and in particular nothing about Ms Laporte, which could suggest any violent intentions. Further, no attempt was made to ascertain affiliations or intentions. On the contrary, individual protesters were given neither the opportunity nor any incentive to explain their positions. Until the coaches were again underway, they were on the contrary allowed to think that they were going to be able to continue to Fairford, and, once the coaches were under way and the contrary became clear, the coach doors were held shut by police outside to prevent passengers disembarking.

155. In those circumstances, even if any preventive action had been justified against anyone at Lechlade, I would have regarded the action taken as unreasonable and disproportionate, in particular as regards the appellant, Ms Laporte.

156. For the reasons I have given, I would allow the appeal and
dismiss the cross-appeal.