(back to preceding text)

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

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

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

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

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

    17.  The claimant now appeals, by leave of the House, against the Court of Appeal's rejection of her first complaint and the Chief Constable cross-appeals against its acceptance of her second.

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

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

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

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

"(a)  it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

(b)  the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do."

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

    22.  Section 13 of the 1986 Act replaces section 3(2) of the 1936 Act. It provides in (1):

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

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

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

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

"(1)  If a police officer of or above the rank of inspector reasonably believes—

(a)  that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence, or

(b)  that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason,

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

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

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

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

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

"We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant."

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

    29.  Every constable, and also every citizen, enjoys the power and is subject to a duty to seek to prevent, by arrest or other action short of arrest, any breach of the peace occurring in his presence, or any breach of the peace which (having occurred) is likely to be renewed, or any breach of the peace which is about to occur. This appeal is only concerned with the third of these situations.

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

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

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

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

In a summary of King v Hodges [1974] Crim LR 424, 425, the police officer's powers were said to be exercisable when he reasonably believed that a breach of the peace was about to take place, and reference was made in the commentary to the existence of numerous examples of actions other than arrest to prevent a breach of the peace. In his Divisional Court judgment in Albert v Lavin, above, Hodgson J (at p 553) ruled:

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

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

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

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

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

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

    33.  In Foulkes v Chief Constable of the Merseyside Police [1998] 3 All ER 705 the plaintiff, a husband, father and joint owner of the matrimonial home, was locked out of it at 9.0 o'clock in the morning following a family argument which began the night before and was resumed in the morning. He wished to re-enter the house, and summoned the police to assist him, but they discouraged him from seeking to re-enter and in the end arrested him, fearing that his actions outside the property would cause a breach of the peace. His claim for wrongful arrest and false imprisonment failed in the county court but succeeded on appeal. Beldam LJ, giving the leading judgment in the Court of Appeal, cited Lord Diplock's ruling in Albert v Lavin and continued (at p 711):

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

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

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

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

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

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

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

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

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

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

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

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

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

Any prior restraint on freedom of expression calls for the most careful scrutiny (The Sunday Times v United Kingdom (No 2) (1991) 14 EHRR 229, para 51; Hashman and Harrup v United Kingdom (1999) 30 EHRR 241, para 32). The Strasbourg court will wish to be satisfied not merely that a state exercised its discretion reasonably, carefully and in good faith, but also that it applied standards in conformity with Convention standards and based its decisions on an acceptable assessment of the relevant facts (Christian Democratic People's Party v Moldova, above, para 70).