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

HOUSE OF LORDS

SESSION 2006-07

[2006] UKHL 55

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

Original Appellant and Cross-respondent:

Ben Emmerson QC

Michael Fordham QC

(Instructed by Bindman & Partners)

Original Respondent and Cross-appellant:

Simon Freeland QC

Jeremy Johnson

(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 allowing 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."

 
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