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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Laporte, R (on the application of) v Gloucestershire Constabulary & Ors  EWCA Civ 1639 (08 December 2004)
Cite as:  EWCA Civ 1639,  1 All ER 473,  2 WLR 789,  QB 678
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Lord Justice May and Mr. Justice Harrison
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
LORD JUSTICE RIX
| THE QUEEN ON THE APPLICATION OF JANE LAPORTE
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|CHIEF CONSTABLE OF GLOUCESTERSHIRE CONSTABULARY
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|(1) CHIEF CONSTABLE OF THAMES VALLEY POLICE
- and -
(2) COMMISSIONER OF POLICE OF THE METROPOLIS
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Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Simon Freeland QC and Mr Jeremy Johnson (instructed by the Force Solicitor, Gloucestershire Constabulary) for the Respondent
Mr Edward Faulks QC and Mr Simon Readhead (instructed by the Force Solicitor, Thames Valley Police) for the first Interested Party
Mr John Beggs and Miss Amy Street (instructed by Directorate of Legal Services, Metropolitan Police) for the second Interested Party
Mr Jason Coppel (instructed by Liberty) for the Intervener
Crown Copyright ©
Lord Chief Justice:
This is the judgment of the Court.
The Factual Background
(a) Fairford is an air base near Cirencester. It was used heavily by the US Air Force in the build-up to and early stages of the Iraq war. Its perimeter runs for approximately 13 miles, parts of which were not secure.
(b) Between 14 December 2002 and 22 March 2003, there were a number of demonstrations at Fairford against the war in Iraq. On 26 January, 1500 protesters were present, and on 23 February, 500 were present. During the protests there were incursions onto the site resulting in numerous arrests, damage to the perimeter fence and runway lights, and £40,000 damage to vehicles. On 18 March, an individual was found hiding near the site with ingredients for a suspected incendiary device.
(c) On 15 February 2003, several groups advertised an intended protest demonstration at Fairford on 22 March 2003. One group that advertised was called "Disobedience Against War." On 20 February 2003, military action against Iraq began.
(d) The staging of a lawful assembly at Fairford on 22 March 2003 was authorised by the police under sections 12 and 14 of the Public Order Act 1986. However, Gloucestershire Police subsequently received intelligence indicating that hard-line protesters were intent on being present at that demonstration. They therefore prepared detailed plans which were intended to ensure that the protest would pass peacefully. There was a chain of command. Gold Commander was the Assistant Chief Constable with overall strategic control. Under him was the Silver Commander, Chief Superintendent Lambert ("Mr. Lambert"), who was responsible for tactical aspects of the operation, and under him Bronze Command, being those police officers responsible for operational matters on the ground.
(e) The police objectives were twofold: (a) preventing violence; and (b) facilitating peaceful protest. Coach-loads of protesters were expected from all over the country. The police plan involved escorting coaches to pre-determined drop-off points and allowing protesters to continue on foot to the prescribed route of the march. The police had circulated publicity about the arrangements warning that those who deviated from the arrangements risked arrest.
(f) The Wombles are an activist group. Their acronym stands for White Overalls Movement Building Libertarian Effective Struggles. Members of the Wombles were present at Fairford on the 23 February 2003 when there was serious disorder. The main gate of the base was forced open and there was a major incursion into the base. The Wombles have a website which states that they promote anarchist ideas. A message posted on their website on 11 March 2003, under the heading "Smash USAF Fairford! Info on coaches," stated:"The first [time] we went there 50 people entered the base, the second time the main gates were pulled down, what happens on March 22nd at USAF Fairford is up to you. Are we going to passively spectate while hundreds of thousands of Iraqis are murdered or are we going to be actively involved in changing history and stopping this war by any means necessary? Book a place on the coach and find out!"
(g) Mr. Lambert made a statutory stop and search authorisation under section 60 of the Criminal Justice and Public Order Act 1994 on 21 March 2003, the day before the demonstration. At 10.45 a.m. on 22 March 2003, Gloucestershire Police received further specific intelligence in relation to members of the Wombles being on board: "3 coaches and a van are en route from London carrying items and equipment to disrupt [the] protest today and gain entry to the airbase."
(h) Acting upon that intelligence and pursuant to the authorisation in place, at 12.50 p.m. on 22 March 2003, the police stopped, boarded and searched four vehicles matching the description at a lay-by on the A417, near the town of Lechlade. This included the Claimant's coach. The lay-by was less than 5 kilometres by road from the perimeter of Fairford, and approximately 2 kilometres on foot.
(i) Mr. Lambert then made a removal of disguises authorisation under section 60AA of the 1994 Act and one arrest was made. But on the instructions of Mr. Lambert, there were to be no further arrests (unless other offences were apparent) as he did not consider a breach of the peace to be sufficiently imminent at that stage.
(j) Discovered on the three coaches were: "some protective clothing, spray paint, two pairs of scissors, a smoke bomb and five shields". May LJ noted in his judgment (at paragraph 16) that those items were "in the main protective or useful to conceal identity [but] there were few items capable of being used offensively." Protective (white) clothing was the known uniform of the Wombles, but other protesters had been encouraged to wear similar clothing for symbolic reasons (to look like civilian weapons inspectors). Other items retrieved included a balaclava, a crash helmet, a wood saw, a hammer, two knives and garden clippers, but the lower court made no positive finding that these articles had been seized from the coaches, and the Claimant contends that these items did not play any role in the decisions taken by the police.
(k) May LJ noted (at paragraphs 15 and 16) that passengers "tried to conceal their identities", that "nobody accepted responsibility for [the items]" and that the Claimant "refused to give her name and address when she was asked [and] gave no good reason for not co-operating". There is evidence that an officer of the Metropolitan Police recorded the presence of eight named individuals whom he readily recognised as members of the Wombles and that "the police knew that transport arrangements had been advertised not only on the Wombles website, but also elsewhere." Mr. Fordham, on behalf of the Claimant, criticises the police for not asking more questions, but it is by no means clear that further questioning would have revealed any further relevant information.
(l) Following the seizure of those items, Mr. Lambert concluded that the coach passengers were heading for Fairford and were likely to cause a breach of the peace. At 2 p.m., he gave instructions that the coaches and passengers were to be escorted back to London. This happened and the Claimant disembarked from a coach at Shepherd's Bush at 4.54 p.m., approximately two and a half hours later.
Mr. Lambert's Reasoning for taking the Action he did
"my decision not to allow the coaches to proceed to Fairford to protest was based upon:
(a) The history of the Wombles and Disobedience Action Groups. [He] was satisfied that hardcore members were on the coaches;(b) The intelligence sources leading up to and on 22nd March 2003;(c) The articles seized from passengers on the coach, and those found in communal areas abandoned."
Nature of the Proceedings and their Outcome in the Court Below
"This case is about the lawfulness of police action which severely curtailed the civil liberties of the Claimant and other peace protesters. At the heart of the case is whether it is legally permissible for the police to take "containment" action to restrict movement and liberty, by a blanket response attributing to a group of protesters an imputed collective intent, without reference to their individual circumstances, and without arresting them or having any grounds which would justify effecting a lawful arrest. Whether the police action was lawful or unlawful in this case has widespread ramifications for police powers and civil liberties."
"the question is whether the police can discharge the onus of showing that the interferences with [her] rights, which the police action represents, were carried out with lawful authority and were justified and proportionate."
The Judgment in the Court Below
"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 detention on the coach were wholly disproportionate to the apprehended breach of the peace."
"1. The decision of the Defendant's officer forcibly to return the Claimant from Lechlade to London on 22 March 2003 was unlawful.
2. The further declaration that the decision to prevent the Claimant from proceeding to Fairford was unlawful be refused".
In addition the court ordered that the inquiry as to the level of damages to which the Claimant was entitled (if any) be adjourned until the final determination of this appeal.
(a) the "imminence" point, in identifying and/or applying a lesser "real risk/close proximity" test for preventive action short of arrest/detention.
(b) the "blanket" point, in identifying and/or applying a test of "impracticability" which was wrong and unjustified at common law and/or under section 6 of the Human Rights Act 1998 and Articles 10 and 11 of the ECHR.
(c) the "justification" point, in concluding that the circumstances of this case justified the preventive action taken, contrary to common law and/or section 6 of the Human Rights Act 1998 and Articles 10 and 11 of the ECHR.
"ARTICLE 5 - RIGHT TO LIBERTY AND SECURITY
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) […];(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) – (f) […]
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law […].
ARTICLE 10 - FREEDOM OF EXPRESSION
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers [...].
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, … public safety, for the prevention of disorder or crime […].
ARTICLE 11 - FREEDOM OF ASSEMBLY AND ASSOCIATION
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime … or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of … the police [...]."
"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."
"20 The situation has to be assessed by the senior police officers present. Provided they honestly and reasonably form the opinion that there is a real risk of a breach of the peace in the sense that it is in close proximity both in place and time, then the conditions exist for reasonable preventive action including, if necessary, the measures taken in this case. …."
"22 But, says [counsel], the police can only take preventive action if a breach of the peace is imminent and there was no such imminence here. In support of this proposition he relies on a passage in the judgment of Lord Justice Watkins in R v Howell (1981) 3 AER 383 at p. 388: "… there is a power of arrest for breach of the peace where … 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 …"
"23 This passage must be read in the light of the judgment of Lord Parker, Chief Justice, in Piddington v Bates (1960) 3 AER 660 at 663, in which he says the police must anticipate "a real, not a remote, possibility" of a breach of the peace before they are justified in taking preventive action". .Emphasis added)
"24 We do not think that there is any conflict between the two approaches. The possibility of a breach must be real to justify any preventive action. The imminence or immediacy of the threat to the peace determines what action is reasonable."
" 27 For the reasons we have given, on the facts found by the magistrates, a breach of the peace was not only a real possibility but also, because of the proximity of the pits and the availability of cars, imminent, immediate and not remote."
These comments by Skinner J conveniently lead into Mr. Fordham's first point.
The "Imminence" Point
"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. 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". (Emphasis added)
It was on the basis of this approach that May LJ found in favour of the Defendant.
The "Blanket" Point
"A judgment as to the imminence of a breach of the peace does not conclude the constable's task. The next and critical question for the constable, and in turn for the court, is where the threat is coming from, because it is there that preventive action must be directed."
He submits that there is a need for a nexus between the perceived likely harm and the person against whom preventive action is taken.
The "Justification" Point