(back to preceding text)

    89.  One less drastic step which Mr Lambert might have taken would indeed have been to allow the coaches to go on to Fairford where the forces assembled to deal with an anticipated demonstration of up to 10,000 protesters would surely have been able to prevent any breach of the peace which the eight known Wombles were planning. Another possibility would have been to target the known Wombles on the coaches and to remove them at Lechlade. There is no evidence to show that this would not have been practicable, given the forces and facilities available to the police there. Action of that kind would have materially reduced the threat of violence at Fairford.

    90.  While bearing firmly in mind the dangers of hindsight and the advantages enjoyed by judges who can review matters at leisure, I am unable to hold that stopping the coaches and all their passengers, including peaceful demonstrators such as the claimant, from going on to Fairford would have been the only practicable way of preventing an imminent breach of the peace in the circumstances. For this additional reason stopping the coaches from proceeding was not lawful at common law - and so infringed the claimant's article 10 and 11 rights. Nor was the action proportionate, having regard to its impact on the claimant's article 10 and 11 rights. For that reason too, those rights were infringed.

    91.  I would accordingly allow the appeal. It follows that the cross-appeal must be dismissed.

LORD CARSWELL

My Lords,

    92.  The policing of demonstrations, undertaken fairly regularly by police forces in different parts of the country, is a difficult task, calling for the exercise of careful judgment and, at times, a flexibility of response, which make heavy demands on the officers upon whom the task falls. History is unhappily replete with instances where things have gone wrong. In some cases the authorities have reacted in a hasty manner or with an excessive use of force, leading at times to tragic consequences. In others the measures taken have proved insufficient to prevent disorder from resulting in breaches of the peace and injury to persons or damage to property. The present case fortunately does not fall into either category, but the appellant suffered a degree of inconvenience and frustration and was prevented from taking part in a lawful demonstration at the Fairford air base. In a country which prides itself on the degree of liberty available to all citizens the law must take this curtailment of her freedom of action seriously.

    93.  Dicey famously observed that it can hardly be said that our constitution knows of such a thing as any specific right of public meeting, a statement which engaged the attention of generations of law students. It is no longer necessary in this sphere of the law to debate the extent to which citizens are at liberty to engage in any activity which has not been made unlawful. It has been overtaken by the provisions of the Human Rights Act 1998, under which the rights contained in articles 10 and 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms are now part of domestic law - termed by Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 163 JP 789, 795 a "constitutional shift". As my noble and learned friend Lord Rodger of Earlsferry has pointed out in paragraph 85 of his opinion, article 10 is the lex generalis and article 11 a lex specialis. The right to freedom of peaceful assembly may be regarded as one means whereby the right to freedom of expression is afforded. It is governed to some extent by statutory provisions. The present complex of statutory powers, which have been summarised in the opinion of my noble and learned friend Lord Bingham of Cornhill, represents what Parliament regards as the correct balance, as a workable compromise between the rights and freedoms of individuals protesting against the policy of the state and the requirements of preserving law and order.

    94.  The common law governing the powers and duties of police officers, and those of ordinary citizens, to prevent breaches of the peace is nevertheless of continuing importance and has been canvassed at length in this appeal and in the opinions given by your Lordships. The decided cases cannot all be readily reconciled with each other, but I venture to suppose that a pattern may be found in those involving demonstrations which enables one to draw some conclusions which may give assistance to courts required to deal with actions taken to prevent breaches of the peace. The variants in the situations which may occur are considerable, but there appear to be three main classes of case.

    95.  In the first class, which one might regard as the most direct and into which the respondents claim that the present case falls, the person who is arrested, detained or otherwise prevented from continuing with his proposed course of action is himself committing or about to commit a breach of the peace. This class is the most straightforward and common category and examples are hardly required. One case which should be mentioned, as its correctness has been more debated, is Moss v McLachlan [1985] IRLR 76. I shall return later to further discussion of this case.

    96.  The second category can pose difficult problems of judgment for police officers in balancing the need to prevent breaches of the peace and not to obstruct the actions of people acting lawfully. This class concerns people whose acts are lawful and peaceful in themselves but are likely to provoke others into committing a breach of the peace. It may be represented in modern law by Albert v Lavin [1982] AC 546, the modern decision of highest authority, from which it was not suggested that your Lordships should depart. The actions of the appellant Mr Albert, who insisted on jumping a bus queue, gave rise to a hostile reaction from other travellers. The magistrates found that the respondent police officer had reasonable grounds for believing a breach of the peace to be imminent unless he obstructed him from boarding the bus out of turn. This justified him in attempting to restrain the appellant.

    97.  An early example of this category is the Irish case of Humphries v Connor (1864) 17 ICLR 1. In that case the plaintiff elected to walk through the streets of Swanlinbar, Co Cavan, wearing an orange lily, an action which, in that part of the country, "was calculated and tended to provoke animosity between different classes of Her Majesty's subjects", according to the defendant's pleadings. Several of those subjects, according to the defence, followed after the plaintiff "and in consequence thereof caused very great noise and disturbance … and threatened the plaintiff with personal violence for wearing said emblem." The defendant, a sub-inspector of Constabulary, requested the plaintiff to remove the emblem. The defence goes on to plead that when she refused he "gently and quietly, and necessarily and unavoidably" removed the emblem. The plaintiff sued him for trespass, to which he pleaded in the terms I have indicated. The plaintiff demurred and the Court of Queen's Bench held, Fitzgerald J dubitante, that the plea was good. It would therefore go to trial and the jury would have to determine whether the act was necessary. O'Brien and Hayes JJ held that if it was, then the defendant would not be guilty of an assault, since it was the only way of preventing a breach of the peace, even though the plaintiff's act was in itself lawful, since it was not averred that she intended to provoke a breach of the peace (a plea which might well have been made in the circumstances of the case). Hayes J observed:

"It would seem absurd to hold that a constable may arrest a person whom he finds committing a breach of the peace, but that he must not interfere with the individual who has wantonly provoked him to do so."

Fitzgerald J deferred to the judgment of his brethren, but expressed his reservation on the ground that the decision made, not the law of the land, but the law of the mob supreme. In this category one might also place Wise v Dunning [1902] 1 KB 167, the case of the Protestant lecturer in Liverpool, the natural consequence of whose sectarian actions and words was that breaches of the peace would be committed by others.

    98.  In the third class of case the actions are not necessarily provocative per se, but a counter-demonstration is arranged, of such a nature that the confluence of demonstrations is likely to lead to a breach of the peace. This situation not infrequently arises in the context of parades in Northern Ireland. The authorities may find themselves with an invidious choice to make in order to prevent a breach of the peace, whether their preventive efforts should be directed to those taking part in the original demonstration or to the counter-demonstrators. This category may be represented by another 19th century Irish case which is not without modern echoes, O'Kelly v Harvey (1883) 14 LR Ir 105. The facts appear most clearly from the report of the case in the Exchequer Division (10 LR Ir 287). At a time of considerable agitation over land tenure, accompanied by widespread rent strikes, the Land League proposed to hold a demonstration at Brookeborough, Co Fermanagh, to be addressed by several notable people, who included Charles Stewart Parnell MP. This led to the production and circulation of a printed notice calling on the Orangemen of Fermanagh to assemble in their thousands at Brookeborough on the day of the proposed meeting and "give Parnell and his associates a warm reception." It was pleaded in the defence of the defendant, a local magistrate, that he had reasonable and probable grounds for believing that if the meeting were held many Orangemen would meet and assemble and the public peace would be broken. The Land League meeting, which included the plaintiff, a nationalist Member of Parliament, did assemble, whereupon the defendant requested the plaintiff and his colleagues to disperse. When they neglected to do so, according to the defence, the defendant laid his hand upon the plaintiff, which constituted the assault and battery complained of in the action. The plaintiff demurred to that part of the defence, on the ground that it did not show any justification in law of the trespass. In the Exchequer Division Palles CB, with whom the other members of the court agreed, held that the Land League meeting was an unlawful assembly, because it was likely to produce danger to the tranquillity and peace of the neighbourhood. Accordingly the defendant was justified in dispersing it and the defence was good. He reserved his opinion, however, on the issue whether he would have so held if the only breach of the peace which could reasonably have been anticipated was an attack by the Orange party upon the Land League party. On appeal it was held that the Land League meeting was not an unlawful assembly, but that the plea was nevertheless good. The Lord Chancellor, giving the judgment of the court, said that on the facts pleaded the defendant was justified in the circumstances in taking steps to disperse the meeting, since there was no other way in which the breach of the peace could be avoided. He said at pages 109-110:

"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 fact 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."

    99.  There are undoubtedly many variants of the facts of different cases which would make them difficult to fit into any of these categories, if such classification were required. One might point to Beatty v Gillbanks (1882) 9 QBD 308, in which the Salvation Army, then in very militant mode, organised a procession, with a band, flags and banners, being well aware that they were likely to be opposed by a group who called themselves the Skeleton Army and with good reason to suppose that a confrontation would lead to disorder and fighting. A Divisional Court held that the Salvation Army members could not be rightly convicted of unlawful assembly, since in the view of the court disturbance of the peace was not on the evidence the natural and probable consequence of their acts. This decision was described as "somewhat unsatisfactory" by Lord Hewart CJ in Duncan v Jones [1936] 1 KB 218, but the same criticism has been made of that case. The appellant set up a box in the roadway outside an unemployed training centre and proposed to hold a meeting there. On a previous occasion, when the appellant had addressed a meeting in the same place, a disturbance had occurred in the training centre which was attributed to the meeting. The police expressed concern about the consequences which were likely to ensue if the appellant were permitted to address another meeting in the same place. The respondent, an inspector of police, required her to move to another location some 175 yards away, although matters were at that time entirely peaceful, whereupon the appellant refused to move and attempted to address those present. She was convicted of obstructing the police in the execution of their duty. The deputy-chairman of quarter sessions found that disturbance and possibly a breach of the peace were the natural and probable consequences of holding the meeting and that the respondent reasonably apprehended a breach of the peace. The Divisional Court, relying on these findings, dismissed the appellant's appeal.

    100.  It is fortunately not necessary to attempt to reconcile these and other examples to be found in the reports, though they serve to indicate the richness of the tapestry of life and the infinite variety of the modes in which people will attempt to exercise freedom of expression. What is common to all is the necessity of finding that a breach of the peace was either taking place or was about to happen or, to use the convenient term adopted throughout this appeal, was imminent. The extent of the concept of imminence was the subject of much discussion before the House.

    101.  I agree with the opinion expressed by your Lordships that the test of the lawfulness of the respondents' actions is imminence and not reasonableness. Although it is necessary that those acting to prevent a breach of the peace act reasonably, that concept is not the sole criterion of the lawfulness of their actions. It is also required that the breach should be imminent.

    102.  The question whether the decision in Moss v McLachlan [1985] IRLR 76 can be justified by application of this principle has led to some difference of opinion. The facts have been set out by Lord Bingham (para 42) and Lord Rodger (paras 63 and 70) and I need not rehearse them. The Divisional Court held on the facts of the case stated 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 cars, imminent, immediate and not remote (para 27 of the judgment). This conclusion has been criticised by Feldman, Civil Liberties and Human Rights in England and Wales, 2nd ed, 2002, pp 1021- 1022, but in my opinion the court was quite entitled to take the view that a confrontation between the large group of striking miners in the fleet of cars and the working miners at one of the pits could be only a very few minutes away, with the very real likelihood that it would escalate into disorder and breach of the peace. The decision in Moss v McLachlan is not, however, authority for the proposition which counsel for the Chief Constable sought to advance before the House, that the test is not immediacy of the breach of the peace but the reasonableness of the steps taken to prevent it. I agree with your Lordships that the imminence or immediacy of the threat to the peace is an essential condition, which should not be diluted. As Lord Rodger has pointed out (para 67), the test has to be applied in the conditions of today, which may include the availability of better information to police officers on the ground about the way in which events are unfolding. I do consider, however, that it can properly be applied with a degree of flexibility which recognises the relevance of the circumstances of the case. In particular it seems to me rational and principled to accept that where events are building up inexorably to a breach of the peace it may be possible to regard it as imminent at an earlier stage temporally than in the case of other more spontaneous breaches.

    103.  The situation which the police faced at Fairford was difficult and delicate. Incursions into the base had taken place in the recent past and it was clear that extreme protesters were ready to commit further damage, quite possibly extending to acts of serious sabotage. With the commencement of the war with Iraq, the risk of damage to the operation of the base and the concomitant likelihood that the US military forces at the base might react strongly to attempts at trespass, there was a real prospect that unless matters were handled with great care very serious consequences could result. The Gloucestershire police very creditably formed an elaborate plan designed to allow considerable opportunity to peaceful protesters to exercise liberty of speech and assembly, while putting in place plans to prevent disruptive and potentially damaging behaviour carrying a threat to the safety of the base.

    104.  The difficulties which gave rise to the present proceedings arose from the fact that the police had specific intelligence that three coaches and a van containing members of the organisation known as the Wombles were en route from London to Fairford. It was apprehended, not without good reason, that if they reached Fairford they would endanger the peace by making every effort to foment trouble and, if they could, invading the base and causing damage. At 10.45 am on the day of the planned protest, 22 March 2003, Chief Superintendent Lambert of Gloucestershire Constabulary, who was in immediate command of the operation to police the demonstration, made the following entry 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."

It might well be said that when the coaches arrived at Lechlade, only three miles from the base at Fairford, with some members of the Wombles on board and containing a number of items quite inconsistent with peaceful demonstrations, a breach of the peace was imminent. Mr Lambert's opinion on the point is not conclusive, but, like Lord Rodger, I do not find it necessary to pronounce on that issue.

    105.  The police were obviously justified in regarding the coaches and their occupants with a considerable degree of suspicion, in view of the identity of some at least of the passengers, the items found on the coach and the refusal of many of the passengers to reveal their names and addresses. The problem which faced them was that the actuality did not match up to the intelligence received. If the coaches had been packed with hard-line anarchists, the police might have been fully justified in ensuring that they did not get any nearer to Fairford, even if there had been a few more peaceable passengers on board. When it became apparent at 12.45 pm or thereabouts that there was a very mixed bunch of people on the coaches, many of whom did not present any potential threat to the peace, and the identified Wombles members were a small minority, it was incumbent on the police to review their strategy in relation to these coaches. I have to agree with your Lordships that they should at this stage have given consideration to whether the coaches could have been allowed to proceed to Fairford and any necessary further action taken there in the light of events which were taking place and the conduct of the passengers from the coaches. Before doing so they might have reduced the risk of breach of the peace by removing the known Wombles members and all the suspect items from the coaches at Lechlade.

    106.  I am very conscious of the difficulty facing police officers in making such decisions in constantly changing conditions, and bearing in mind the very great importance of ensuring that no incursion into the base took place. I would in such a case pay considerable respect to the judgment of the officer making decisions on the ground. I am also fully aware of the distortion of vision which hindsight may cause. The burden rests upon the respondents, however, to establish that the actions which they took were proportionate, in particular that they constituted the least restriction necessary of the rights of freedom of speech and freedom of assembly. In the light of this factor, accordingly, and not without some hesitation, I am impelled to the view that the respondents have not discharged that burden.

    107.  I would therefore allow the appeal, dismiss the cross-appeal and make the order proposed.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    108.  I have had the advantage of reading in draft the opinions of my noble and learned friends, Lord Bingham of Cornhill, Lord Rodger of Earlsferry and Lord Mance and, like them, would allow Ms Laporte's appeal and dismiss the Chief Constable's cross-appeal. Given the obvious importance of the case, however, and recognising that your Lordships, although agreeing in the result, appear not entirely of the same mind on all points, I must, I think, indicate my own approach to the various issues which arise.

    109.  The central question for your Lordships is whether the police were entitled to decide that Ms Laporte should not be permitted to continue upon her proposed journey from the Lechlade lay-by to the anti-war demonstration at Fairford. I put it that way because (a) it is not disputed that the police were entitled to stop the three coaches at the lay-by, to search them and their occupants for "dangerous instruments or offensive weapons" and for items enabling the concealment of identity (respectively under sections 60 and 60AA of the Criminal Justice and Public Order Act 1994, as amended), and, under the same provisions, to seize any such object, and (b) it is only if your Lordships were to hold (as did the courts below) that the police were so entitled, that other questions (as to what steps the police could properly take to prevent Ms Laporte continuing on her journey, and more particularly as to the legality of the steps actually taken) would arise on the cross-appeal.

    110.  Before indicating the precise basis on which I would hold that the police were not entitled to reach the decision they did, it is helpful first to take note of certain principles about which I understand all your Lordships to agree. The first is that set out in para 29 of Lord Bingham's opinion in terms which to my mind cannot be improved upon and warrant repetition:

"Every constable, and also every citizen, enjoys the power and is subject to the 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."

    111.  This formulation of the power and duty is, I think, to be preferred to that found in R v Howell (Errol) [1982] QB 416 (quoted by Lord Bingham at para 27) which seems to me to confuse a breach of the peace with a reasonable apprehension of such a breach (a confusion by no means confined to that judgment). A breach of the peace, as I understand it, involves actual harm done either to a person or to a person's property in his presence or some other form of violent disorder or disturbance and itself necessarily involves a criminal offence. Whilst, therefore, it is accurate for the European Court of Human Rights to say in Steel v United Kingdom (1998) 28 EHRR 603 (para 29)

"A person may be arrested without warrant by exercise of the common law power of arrest, for causing a breach of the peace or where it is reasonably apprehended that he is likely to cause a breach of the peace"

    it is at first blush puzzling to find at para 25 of the same judgment (restated at para 48) the suggestion that "Breach of the peace . . . does not constitute a criminal offence", for which the authority of R v County of London Quarter Sessions Appeal Committee, Ex p Metropolitan Police Commissioner [1948] 1 KB 670 is cited—an authority perhaps more appropriately cited at footnote 15 (although in both instances with an inaccurate reference) to para 31 of the judgment for the proposition that "a binding over order is not a criminal conviction". When Lord Bingham says at para 28 of his opinion: "A breach of the peace is not, as such, a criminal offence, but founds an application to bind over" (my emphasis), he is there referring to the concept of breach of the peace as sometimes the Strasbourg court does (see para 121 below). The Court in Steel rejected the complaints of both the first and second applicants, in each case because they had acted in a manner that was likely to provoke others to violence (i.e. that was likely to cause a breach of the peace), not because they had themselves in fact committed a breach of the peace. The Court held that such conduct warranted a bind-over and, when that was refused, imprisonment.

    112.  The critical difference between Steel and Hashman and Harrup v United Kingdom (1999) 30 EHRR 241—the European Court of Human Rights' decision the following year upholding an article 10 complaint by two hunt saboteurs who had been bound over to keep the peace for seeking to disrupt a hunt by distracting the hounds—was that in the later case on the Crown Court's findings, "there had been no violence or threats of violence . . . so that it could not be said that any breach of the peace had been committed or threatened." Paragraph 35 of the Court's judgment reads:

"The binding-over order in the present case thus had purely prospective effect. It did not require a finding that there had been a breach of the peace. The case is thus different from the case of Steel, in which the proceedings brought against the first and second applicants were in respect of breaches of the peace which were later found to have been committed."