(back to preceding text)

    65.  So the courts below held that, while any breach of the peace at Fairford might not have been sufficiently imminent for Chief Superintendent Lambert to order the arrest of the passengers on the coaches at Lechlade, he was entitled to turn back the coaches. Mr Lambert himself appears to have been of that view: he thought his officers could turn back the coaches at Lechlade, even though he considered that they could not have arrested anyone there since a breach of the peace was not imminent.

    66.  I would reject this reformulation of the common law since it would weaken the long-standing safeguard against unnecessary and inappropriate interventions by the police - and indeed, in theory at least, by ordinary citizens. On the established authorities, the police officer's duty is always to take whatever steps are reasonably necessary to prevent a breach of the peace but that duty arises only when the officer considers that the breach of the peace is imminent. In broad terms that approach was approved by the legislature in section 24(7)(a) and (b) of the Police and Criminal Evidence Act 1984. When the breach appears to be imminent, but not before, all the various options - arrest and detention, restraint, warning etc - become available and the officer can choose the option or combination of options that best fits the circumstances. It follows that Mr Lambert had no power to halt the coaches at Lechlade unless he reasonably considered that a breach of the peace at Fairford was going to happen in the near future.

    67.  In these situations a police officer like Mr Lambert is called on to predict what is going to happen in the near future. If he merely thinks that, while a breach of the peace may happen, the chances are that it won't, then he will not regard it as imminent. He will only regard it as imminent if he thinks that it is likely to happen. I doubt whether Lord Parker CJ intended to say anything different in Piddington v Bates [1961] 1 WLR 162, 170, when he referred to "a real danger" and "a real possibility" of a breach of the peace. The police officer's view of the matter will depend on the information he has and on his assessment of that information. In former times, when a police officer patrolled the streets without any of the modern means of communication, he would often have no more information than any ordinary citizen walking beside him. So, for the most part, he would only apprehend the occurrence of breaches of the peace which were brewing and about to break out in his presence. These would be the ones which he would regard as imminent. But, today, officers on the ground can be supplied by radio with information about what lies round the corner or what people are doing a few miles down the road. Armed with such information, they may have good reason to anticipate that people in front of them are intending to take part in a breach of the peace, or are likely to become involved in one, a short time later or a short car ride away. Intervention to prevent that breach of the peace may therefore be justified. A fortiori, a senior officer at the centre of a police operation, receiving reports from his officers on the ground, plus intelligence and advice on how to interpret the data, may have good reason to appreciate that a breach of the peace is "imminent" or "about to happen", even though that would not be apparent to officers lacking these advantages. The precondition for intervention remains the same but the test has to be applied in the conditions of today.

    68.  In paragraph 62 above, I gave examples of the kinds of expression which judges have used to describe the stage at which the power and duty to intervene arise. The expressions are not precise and most can be used to refer to very different periods of time, depending on the context. For example, if someone telephones and you say you will ring back because you are "about to" have dinner, you mean that the food is on the table or is just about to be served. But if you say that Janet was injured when she was "about to" go to university, the injury could have occurred days or even weeks before the start of term. In the present context, however, a shorter, rather than a longer period is clearly meant: the event must be going to happen in the near future.

    69.  This does not mean that the officer must be able to say that the breach is going to happen in the next few seconds or next few minutes. That would be an impossible standard to meet, since a police officer will rarely be able to predict just when violence will break out. The protagonists may take longer than expected to resort to violence or it may flare up remarkably quickly. Or else, as in O'Kelly v Harvey (1883) 14 LR Ir 105, the breach of the peace may be likely to occur when others arrive on the scene and there is no way of knowing exactly when that will happen. There is no need for the police officer to wait until the opposing group hoves in sight before taking action. That would be to turn every intervention into an exercise in crisis management. As Cooke P observed in Minto v Police [1987] 1 NZLR 374, 377, "It would be going too far to say as a matter of law that the powers of the police at common law can be exercised only when an instantaneous breach of the peace is apprehended...." In Steel v United Kingdom (1998) 28 EHRR 603, after a morning of disruption, the first applicant, a protester against blood sports, was arrested when, in the course of a grouse shoot, she walked in front of a person armed with a gun in order to prevent him from shooting. The second applicant, who was trying to stop the construction of a motorway, was arrested when she stood underneath the bucket of a mechanical digger, towards the end of a day during which protesters had repeatedly obstructed the work of the road-builders. In neither case could the police officers have predicted exactly when the violent reaction provoked by the protests would occur. But I have no doubt that the police officers were entitled to take preventive action on the view that it was likely that a breach of the peace would occur some time in the near future, if the protesters persisted. The European Court held, at p 638, paras 60-61, that arresting the protesters to prevent a violent reaction had been justified and that there had been no breach of article 5(1) of the European Convention.

    70.  The closest parallel to the present case is Moss v McLachlan [1985] IRLR 76, a test case brought by the National Union of Mineworkers to clarify the law on police road blocks. These were in widespread use during the miners' strike which was in progress at the time. In April 1984 the police stopped cars carrying striking miners as they left the motorway at a point near four collieries in the Nottingham coalfield where work was continuing. The miners in the cars were intending to picket one or more of the pits. Two of the pits were between a mile and a half and two miles from the exit, while the two others were between four and five miles away. In the atmosphere of the time, and in view of previous events, it was easy for senior police officers to foresee that, if the striking miners reached the working pits, at some point there would be violent clashes between the striking and working miners. They therefore set up a police cordon at the motorway exit so as to be in a position to avert any clashes by keeping the two forces apart. When the striking miners tried to break through the cordon, they were arrested and charged with obstructing a police officer in the execution of his duty in contravention of section 51(3) of the Police Act 1964. The miners were convicted and, on appeal, contended that the officers at the cordon had not been acting in the execution of their duty since no breach of the peace was imminent at the motorway exit and therefore the officers had no power to stop them at that point. In a reserved judgment the Divisional Court rejected the argument.

    71.  In my view they were right to do so, even though, as I have already pointed out, their reasoning was flawed in an important respect. I consider that, as Skinner J held, [1985] IRLR 76, 79, para 27, the magistrates were entitled to hold that in all the circumstances, because of the proximity of the pits and the availability of cars, a breach of the peace was "imminent, immediate and not remote". In the present case, on the basis of the information and advice available to him, Chief Superintendent Lambert considered that a breach of the peace would occur if the coaches and the protesters reached Fairford. It was only just over three miles away - a few minutes by coach. In these circumstances, if Mr Lambert had concluded that a breach of the peace at Fairford was imminent, I might have been disposed to accept that. But it is unnecessary to decide the point since Mr Lambert, who knew all the relevant circumstances, in fact considered that, when the coaches reached Lechlade, a breach of the peace was not imminent. That being so, he had no power, and was under no duty, to take steps to prevent the breach of the peace. It follows that stopping the coaches from proceeding further was unlawful.

    72.  That is sufficient to dispose of the appeal in the claimant's favour but, since the second and third issues were fully argued, I think it right to consider them. Assuming that Mr Lambert had been entitled to take the steps which were reasonably necessary to prevent the breach of the peace, would those steps have included stopping the coaches and their passengers from travelling on to Fairford? Would that step have been a proportionate restriction on the claimant's article 10 and 11 rights?

    73.  In many straightforward cases the steps which are reasonably necessary will be obvious. Where the officer believes, for instance, that an individual is about to punch someone else, then it may well be necessary for the officer to restrain and arrest the potential aggressor. But, sometimes, all that may be required is to advise the potential aggressor or the potential victim to leave as quickly as possible.

    74.  In other cases, perhaps involving rival gangs or rival groups of football supporters, the police officer may see that the members of one gang or group are making offensive remarks with the intention of provoking the other side to a fight. Then the officer may prevent the breach of the peace by ordering the first group to desist and, if they fail to do so, arresting them for obstructing a police officer in the execution of his duty under section 89(2) of the Police Act 1996.

    75.  Even where someone does not actually intend to provoke others into a violent reaction but behaves in an outrageous way which is liable to produce such a reaction, he can be stopped. That was the position in Wise v Dunning [1902] 1 KB 167. When addressing meetings in a public place in Liverpool the appellant used gestures and language which were highly insulting to the Roman Catholic population. His actions had caused, and were liable to cause, breaches of the peace by his opponents and supporters. The Divisional Court held that the magistrate's decision to bind him over to keep the peace had been fully justified. In doing so, the court rejected his argument that he could not be held responsible for any breaches of the peace that occurred since an unlawful act could not be regarded as the natural consequence of his insulting or abusive language or conduct.

    76.  Albert v Lavin [1982] AC 546 was essentially a case of the same kind, though the circumstances were very different. Mr Albert tried to jump the queue and board a bus out of turn. This naturally caused resentment and several people in the queue objected to his conduct. The reaction of the other members of the queue caused Mr Lavin, an off-duty police officer, reasonably to expect that a breach of the peace was liable to take place. He intervened to prevent it by obstructing Mr Albert's access to the bus. Lord Diplock, with whom the other members of the House agreed, held that, both as a constable and as a citizen, Mr Lavin had been entitled, indeed bound, to take this reasonable step to prevent the breach of the peace. When, in the passage quoted in paragraph 61 above, Lord Diplock referred to a citizen having the right and duty to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so, this included taking such steps against a person, like Mr Albert, whose conduct is liable to cause others to do acts which would constitute a breach of the peace. Of course, it would have been wrong for the other people in the queue to resort to violence, but the reality was that this was likely to happen. In the circumstances Mr Lavin was entitled to prevent the breach of the peace by stopping Mr Albert from boarding the bus out of turn.

    77.  Some forms of protest involve actions which are almost certain eventually to provoke a violent reaction from their targets. That was the case with the two applicants in Steel v United Kingdom (1998) 28 EHRR 603 whose protests I described in paragraph 69. The police arrested them because they feared that, after enduring some hours of disruptive protests, the other side would react violently. The applicants complained that their rights under article 10 of the Convention had been violated. The European Court held, however, at pp 645-647, paras 102-109, that, in view of the risks involved if their protests had continued, the measures taken could not be regarded as disproportionate. There was accordingly no breach of article 10.

    78.  The common law goes further, however. Sometimes, lawful and proper conduct by A may be liable to result in a violent reaction from B, even though it is not directed against B. If B's resort to violence can be regarded as the natural consequence of A's conduct, and there is no other way of preserving the peace, a police officer may order A to desist from his conduct, even though it is lawful. If A refuses, he may be arrested for obstructing a police officer in the execution of his duty.

    79.  In O'Kelly v Harvey (1883) 14 LR Ir 105, the plaintiff, a nationalist Member of Parliament, sued the defendant for assault and battery. The incident arose out of a meeting of the Land League which was to be held at Brookeborough near Enniskillen on 7 December 1880. The previous day a placard appeared summoning local Orangemen to assemble and oppose the meeting. The defendant, who was a justice of the peace for the district, was present at the meeting. According to his pleadings, 10 LR Ir 285, 287-289, he knew of the placard and believed on reasonable and probable grounds that the only way of preventing a breach of the peace when the Orangemen arrived was to order the meeting to separate and disperse. The defendant asked the plaintiff and the other persons who were assembled to disperse and, when they failed to do so, he laid his hand on the plaintiff in order to disperse the meeting. On a demurrer the Court of Appeal held that, if made out, these averments would constitute a sufficient defence to the action. Law C explained the position in this way, 14 LR Ir 105, 109-110:

"The question then seems to be reduced to this: assuming the plaintiff and others assembled with him to be doing nothing unlawful, but yet that there were reasonable grounds for the defendant believing, as he did, that there would be a breach of the peace if they continued so assembled, and that there was no other way in which the breach of the peace could be avoided but by stopping and dispersing the plaintiff's meeting - was the defendant justified in taking the necessary steps to stop and disperse it? In my opinion he was so justified, under the peculiar circumstances stated in the defence, and which for the present must be taken as admitted to be there truly stated. Under such circumstances the defendant was not to defer action until a breach of the peace had actually been committed. His paramount duty was to preserve the peace unbroken, and that, by whatever means were available for the purpose. Furthermore, the duty of a justice of the peace being to preserve the peace unbroken he is, of course, entitled and in part bound, to intervene the moment he has reasonable apprehensions of a breach of the peace being imminent; and therefore, he must in such cases necessarily act on his own reasonable and bona fide belief, as to what is likely to occur. Accordingly in the present case, even assuming that the danger to the public peace arose altogether from the threatened attack of another body on the plaintiff and his friends, still if the defendant believed and had just grounds for believing that the peace could only be preserved by withdrawing the plaintiff and his friends from the attack with which they were threatened, it was, I think, the duty of the defendant to take that course."

He added, at p 112:

"I assume here that the plaintiff's meeting was not unlawful. But the question still remains - was not the defendant justified in separating and dispersing it if he had reasonable ground for his belief that by no other possible means could he perform his duty of preserving the public peace. For the reasons already given, I think he was so justified, and therefore that the defence in question is good...."

    80.  I need not examine the fairly extensive later case law in which this topic has been explored since, like Simon Brown LJ in Nicol and Selvanayagam v Director of Public Prosecutions (1995) 160 JP 155, 162, I accept that Lord Alverstone CJ put the position correctly when he said in Wise v Dunning [1902] 1 KB 167, 175-176:

"there must be an act of the defendant, the natural consequence of which, if his act be not unlawful in itself, would be to produce an unlawful act by other persons."

It is also unnecessary to try to determine the precise boundaries of the rule, which were discussed both by Simon Brown LJ in Nicol, 160 JP 155, 162-163, and by Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 163 JP 789, 791-793. What does need to be stressed, however, is that, as Dicey, An Introduction to the Study of the Law of the Constitution (10th ed by E C S Wade, 1959), pp 278-279, emphasised, using the familiar example of the Salvationists and the Skeleton Army:

"the only justification for preventing the Salvationists from exercising their legal rights is the necessity of the case. If the peace can be preserved, not by breaking up an otherwise lawful meeting, but by arresting the wrongdoers - in this case the Skeleton Army - the magistrates or constables are bound, it is submitted, to arrest the wrongdoers and to protect the Salvationists in the exercise of their lawful rights".

    81.  In Chorherr v Austria (1993) 17 EHRR 358 the applicant was one of two men who had been arrested when demonstrating against the Austrian armed forces on the occasion of a military parade. They had rucksacks on their backs, with slogans on them. The rucksacks were so large that they blocked other spectators' view of the parade. This caused "a commotion" among the spectators who were protesting loudly at the obstruction. The demonstrators were arrested to prevent disorder. By a majority, the European Court held, at pp 375-377, paras 27-34, that in the circumstances it could not say that the arrests had not been a proportionate way of preventing disorder. There had accordingly been no violation of the applicant's article 10 rights.

    82.  Here, of course, the claimant and those like her were not going to take any part in any breach of the peace. Nor was their conduct likely to lead to one. But, as O'Kelly v Harvey shows, where it is necessary in order to prevent a breach of the peace, at common law police officers can take action (in that case dispersing a meeting) which affects people who are not themselves going to be actively involved in the breach. Similarly, as Mr Pannick QC reminded the House, under section 13(1) of the Public Order Act 1986, where his other powers are inadequate, a chief constable must ask the district council to prohibit a procession which is liable to lead to serious public disorder - even if many of those taking part would not be involved in the disorder. A prior authorisation procedure for public meetings is in keeping with the requirements of article 11, if only so that the authorities may be in a position to ensure the peaceful nature of the meetings: Ziliberberg v Moldova, admissibility decision, European Court, Fourth Section, 4 May 2004, unreported. By contrast, a peaceful protester 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 a demonstration: Ziliberberg v Moldova and Ezelin v France (1991) 14 EHRR 362, 375, para 34 of the Commission's decision.

    83.  On the same principle, where they need to do so in order, say, to reach the scene of an imminent breach of the peace, police officers must be able to clear a path through a crowd of innocent bystanders. Indeed, where necessary, a police officer is entitled to go further and call on any able-bodied bystanders for their active assistance in suppressing a breach of the peace. If, without any lawful excuse, they refuse to give it, they are guilty of an offence. See Archbold, Criminal Pleading Evidence and Practice 2006, para 19-277. The law proceeds on the basis that "it is no unimportant matter that the Queen's subjects should assist the officers of the law, when duly required to do so, in preserving the public peace": R v Brown (1841) C & Mar 314, 318 per Alderson B. In the eyes of the law therefore innocent bystanders caught up in a breach of the peace are to be regarded as potential allies of the police officers who are trying to suppress the violence.

    84.  In the light of these authorities I would reject Mr Emmerson QC's submission that there has to be a causal nexus between the persons affected by any measure taken by the police and the potential breach of the peace. In some circumstances a requirement of that kind would make it impossible for police officers to discharge their primary duty to preserve the peace. In a case like the present, therefore, provided that there was no other way of preventing an imminent breach of the peace, under the common law a police officer could stop a coachload of protesters from proceeding further, even although those on board included entirely peaceful protesters. The proviso is, however, vital.

    85.  Under the Human Rights Act 1998 the police must have regard to the rights to freedom of expression and freedom of assembly which protesters, such as the claimant, are entitled to assert under articles 10 and 11 of the Convention. Article 10 is the lex generalis, article 11 a lex specialis. In Steel v United Kingdom (1998) 28 EHRR 603, para 101, the European Court described the right to freedom of expression as

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

To be permissible, any restriction on these essential rights in articles 10 and 11 must be necessary in a democratic society. The proportionality principle demands that a balance be struck between the requirements of the purposes listed in articles 10(2) and 11(2) and the freedom to express opinions and to assemble. See Ezelin v France (1991) 14 EHRR 362, 389, paras 51-52. Here the police were pursuing the legitimate aim of preventing disorder. So the court has to determine whether the police action was proportionate to that legitimate aim, having regard to the special importance of freedom of peaceful assembly and freedom of expression. In the familiar trinity in de Freitas v Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing [1999] AC 69, 80F-G, assuming that the breach of the peace was imminent, the critical question is whether the means which the police used to impair the claimant's article 10 rights were no more than was necessary to accomplish their objective of preventing the breach of the peace which they anticipated. In this case the Convention standard is basically the same as that set by the common law rule formulated by Dicey. Under the Convention, however, as the Chief Constable accepts, the onus is on the police to show that what was done was no more than was necessary.

    86.  The affidavits and other documents lodged on behalf of the Chief Constable bear witness to the care which the police devoted to planning the operation on 22 March in order to ensure that those who wished to protest peacefully outside RAF Fairford should be able to do so, while also ensuring that the operations at the base were not disrupted. Therefore, if anything did go wrong in the handling of the three London coaches, it is likely to have been simply due to some error of judgment which occurred on a day when many on-the-spot decisions had to be taken in the course of a complex and fast-moving exercise.

    87.  From the internet and, presumably, from other information, the police anticipated that the London coaches would bring members of an anarchist organisation known as the Wombles. On the day of the demonstration, both before and after the coaches arrived at Lechlade, Chief Superintendent Lambert and others seem therefore to have used "the Wombles" as shorthand for the coaches and their passengers. At 10.45 am, long before the coaches arrived, Mr Lambert decided that if any offending articles were found on the coaches - as a few were - the coaches were to be turned round and sent back to London. If all of the passengers on the coaches had been Womble anarchists determined on violence and a breach of the peace by them had been imminent, a decision to stop the coaches from proceeding would have been an appropriate way of preventing the breach of the peace and protecting the rights of those who wanted to protest peacefully at Fairford. In fact, however, only eight known Wombles were identified on the coaches and, it appears, most of the passengers had nothing to do with them and were the reverse of violent by nature. It may be that police thinking about the number of actual Wombles on the coaches was affected by the fact that many of the peaceful protesters were wearing white overalls (to represent themselves as Gloucestershire Weapons Inspectors), which were similar to the uniform of the Wombles. However that may be, the fact that some of those on the coaches declined, lawfully, to give their names to the police was no sufficient basis for concluding that they would be associated with any violence.

    88.  Despite this, Mr Lambert appears to have thought that his only options were either to stop the coaches at Lechlade or to allow them to go on to Fairford and arrest all 120 or so occupants there. He judged - correctly, I have no doubt - that making so many arrests there would not have been practicable, given the available forces and facilities. Therefore, if his assumption about the number of potential violent troublemakers had been correct and a breach of the peace had been imminent, stopping the coaches rather than letting them go on to Fairford would have been justified. But once his officers had actually seen the passengers at Lechlade, he should not simply have assumed that something like 120 violent troublemakers would have had to be arrested at Fairford. For some reason, however, Mr Lambert persisted in this false assumption which led him to stick to his preconceived plan to turn the coaches back without considering any less drastic alternative.