(back to preceding text)

    As I have explained, that passage has to be read as if the expression "a breach of the peace" included within it, in addition to an actual breach, a reasonably apprehended breach of the peace.

    113.  I return to Lord Bingham's formulation, which clearly confines the expression "breach of the peace" to the use of actual violence. As Lord Bingham observes, this appeal concerns the third of the situations contemplated in his formulation, a "breach of the peace which is about to occur." The cases speak variously of a breach of the peace being "about to" occur (the language used by Lord Diplock in Albert v Lavin [1982] AC 546, 565), of it being "imminent" (the expression earlier used in Humphries v Connor (1864) 17 ICLR 1 and in Howell), "in the immediate future" (another expression used in Howell and earlier used by Profesor Glanville Williams in his 1954 article [1954] Crim LR 578), and "a sufficiently real and present threat" (Beldam LJ in Foulkes v Chief Constable of the Merseyside Police [1998] 3 All ER 705, 711).

    114.  The second matter about which I understand all your Lordships to agree is that no power (or duty) arises to take any preventive action whatever unless and until the constable (or citizen) reasonably apprehends that an actual breach of the peace is imminent (about to happen). As Lord Mance puts it in para 141 of his opinion, the reasonable apprehension of an imminent breach of the peace is an important threshold requirement which must exist before any form of preventive action is permissible at common law (see too Lord Bingham's opinion at para 50 and Lord Rodger's at para 66). There is no inconsistency between this principle and the further principle that, even when a breach of the peace is reasonably judged imminent, the police must still take no more intrusive action than appears necessary to prevent it. Take the case of Humphries v Connor: it would not, I think, have been reasonable for the officer to have arrested the plaintiff without first plucking the orange lily from her lapel. Similarly in Albert v Lavin: PC Lavin could not properly have arrested Mr Albert for queue-jumping without first seeking to restrain him. Generally nowadays if an arrest in such cases becomes necessary it is for the offence of obstructing a police officer in the execution of his duty (in Albert v Lavin it was in fact for assaulting the officer in the execution of his duty). But it could equally be for conduct likely to cause a breach of the peace—not, of course itself a criminal offence (as in the case of the first two applicants in Steel). The point is, however, that unless the person whose conduct threatens the peace (perhaps, as in the various cases I have just mentioned, by provoking others to violence) is cooperative, he is likely to be arrested and, unless the threatened breach is imminent, that involves too great an inroad upon liberty. Civil rights must be jealously guarded and, as Mr Rabinder Singh QC on behalf of Liberty reminds us, prior restraint (pre-emptive action) needs the fullest justification.

    115.  This critically was where the Divisional Court and the Court of Appeal went wrong. On their approach the police are under a duty to take reasonable steps to prevent a breach of the peace from becoming imminent (rather than which is imminent). The duty they postulate would allow for reduced imminence for lesser restraint (i.e. for preventive action short of arrest) on some sort of sliding scale.

    116.  It is at this point helpful to consider the Divisional Court's decision in Moss v McLachlan [1985] IRLR 76, the authority upon which both courts below principally relied (which, indeed, the Court of Appeal [2005] QB 678, at paragraph 45 saw as being "very much on all fours" with the present case). The facts of Moss v McLachlan are set out at para 42 of Lord Bingham's opinion, para 70 of Lord Rodger's opinion, and need not be rehearsed afresh. It is in the context of this decision that the differences between your Lordships seem to me most apparent: Lord Bingham accepts the decision in Moss but (at para 51) finds striking differences between the situation at the police roadblock there and that at the Lechlade lay-by here. Unlike the police at the roadblock, the police at Lechlade could not have regarded a breach of the peace as imminent and, that being so, no preventive action was open to them. Lord Rodger, however, at para 71, would have been disposed to accept that a breach of the peace was already imminent at Lechlade had Mr Lambert himself in fact taken that view. Lord Mance on the other hand (at para 148) questions the correctness not only of the reasoning in Moss but also, unlike Lord Bingham and Lord Rodger, the actual decision arrived at there.

    117.  In his valuable work Civil Liberties and Human Rights in England and Wales, 2nd ed (2002), Professor David Feldman (at pp 1033-1034), discussing the requirement of imminence, suggests that the impact of the Human Rights Act 1998 "may lead to cases such as Moss v McLachlan . . . being decided differently today." A little earlier (at pp 1021-1022) he had suggested that the degree of flexibility allowed to the police in that case was too wide:

"The larger the exclusion zone, the greater the level of interference, and the more likely it is that innocent people will be seriously inconvenienced. There were many cases (which were not litigated) in which the police exceeded their powers by stopping people so far away from the scene of trouble that it could not even arguably have been a proper exercise of their power or a reasonable exercise of their discretion. For example, at one stage in March 1984 Kent miners (and all who looked like miners) were stopped at the Dartford Tunnel if the police thought that they were heading towards the Nottinghamshire, Durham, or Yorkshire collieries. This had the effect of confining those people to the southernmost counties of England for the duration of the dispute."

    The result of the Human Rights Act 1998, he suggested, was that the police "will need to exercise a great deal more tolerance of protesters' rights of passage than was evident in Moss v McLachlan if their efforts to avert disruption are not to be regarded as a disproportionate and, therefore, unlawful exercise of state power."

    118.  For my part I regard the decision in Moss v McLachlan as going to the furthermost limits of any acceptable view of imminence, and then only on the basis that those prevented from attending the demonstration were indeed manifestly intent on violence and were not (as Lord Mance at para 148 envisages may have been the case) quite possibly intent only on peaceful demonstration. In short, I regard the decision in Moss as (just) sustainable on what is certainly one possible view of the facts of that case, but the course taken by the police here in preventing Ms Laporte from proceeding further as plainly unsustainable—unsustainable, first, because Mr Lambert did not in fact regard a breach of the peace as then imminent and, secondly, because (for mixed reasons of fact and law) no such view was in any event open to him. Prominent amongst the factual considerations were that (i) the 120 coach passengers had by then been searched and deprived of such objects as were calculated to threaten the peace, (ii) the eight Wombles present had been identified and one other passenger arrested for an earlier offence at Fairford, and (iii) the police had extensive forces and carefully laid plans for guarding against any disorder whether on arrival at Fairford, during the subsequent procession, or at the bell-mouth area opposite the air-base gate.

    119.  This brings me to the other question which, had your Lordships taken a different view of whether the police at Lechlade could reasonably have regarded a breach of the peace as already then imminent, would have needed to be addressed: the question as to the circumstances in which the police may take preventive action against persons other than those committing or reasonably apprehended of being about to commit a breach of the peace. Because it does not arise directly I shall touch on it comparatively briefly. As I shall explain, however, it does seem to me to have some tangential relevance to the situation which arose here.

    120.  It is clear, as already indicated, that in some circumstances the police can take action against those whose conduct, although not itself breaching the peace, appears likely to provoke others to do so. Indeed, most of the cases I have mentioned are of that sort: Humphries v Connor (the provocative lily in the lapel), Albert v Lavin (where PC Lavin initially sought to prevent Mr Albert from queue-jumping because he expected it to provoke a violent reaction in others), and the first and second applicants in Steel (for seeking to disrupt respectively a grouse shoot and motorway construction work, in each case because their obstructive conduct was likely to provoke violent reaction against them). That too was the position in Nicol and Selvanayagam v Director of Public Prosecutions (1995) 160 JP 155 where the unsuccessful appellants had sought to disrupt an angling competition by throwing sticks into the water, and in the Strasbourg case of Chorherr v Austria (1993) 17 EHRR 358 (discussed by Lord Rodger at paragraph 81 of his opinion) where two demonstrators at a military parade provocatively blocked out the view of other spectators. In none of these cases were the defendants in fact acting unlawfully when required to desist from their provocative activities. But it can hardly be doubted that each was behaving unreasonably and that the targets of their various disruptive activities could not reasonably have been expected to put up with them; that would have been, as Channell J put it in Wise v Dunning [1902] 1 KB 167, 179, to ignore "the infirmity of human temper".

    121.  It is noteworthy that the European Court of Human Rights in Steel, when sanctioning the concept of breach of the peace in English law, did so on the express basis that the concept had been clarified by the English courts over the previous two decades and is now confined to persons who cause or appear to be likely to cause harm to others or who have acted in a manner "the natural consequence of which would be to provoke others to violence" (paragraph 55 of the Court's judgment, referring back by way of footnote 83 to paragraphs 25-28). The then most recent English decision was that of the Divisional Court in Nicol and Selvanayagam and (at para 28) the Court cited from my judgment there at p 163:

". . . the court would surely not find a [breach of the peace] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable, as, of course, it would be if the defendant's conduct was not merely lawful but such as in no material way interfered with the other's rights. A fortiori, if the defendant was properly exercising his own basic rights, whether of assembly, demonstration or free speech."

    A little earlier in my judgment (at p 162) I had said this:

"Before the court can properly find that the natural consequence of lawful conduct by a defendant would, if persisted in, be to provoke another to violence, it should, it seems to me, be satisfied that in all the circumstances it is the defendant who is acting unreasonably rather than the other person."

    122.  A year after the European Court of Human Rights' judgment in Steel (but still before the Human Rights Act took full effect) Sedley LJ in the Divisional Court in Redmond-Bate v Director of Public Prosecutions (1999) 163 JP 789, allowing an appeal by a woman arrested for breach of the peace when she had refused to stop preaching to a hostile audience from the steps of Wakefield Cathedral, referred to Steel, spoke of "the constitutional shift which is now in progress" and cast doubt on the present day applicability of the decision and approach in Duncan v Jones (1936) 1 KB 218 (which had itself described Beatty v Gillbanks (1882) 9 QBD 308—the case about the Salvationists and the Skeleton Army discussed anonymously by Lord Rodger at para 80 of his opinion—as a "somewhat unsatisfactory case").

    123.  What, then, if a citizen's lawful conduct, perhaps in the exercise of his own right of free speech, is adjudged by a constable likely to provoke imminent violence in others, violence which would be "not merely unlawful but wholly unreasonable" (see para 121 above)? Plainly the constable's duty is, if he can, to protect the citizen's rights and to control, and if necessary arrest, those behaving unreasonably—summoning if need be the support of other officers and/or members of the public. But if he cannot, can he instead require the citizen to desist and, if he refuses, arrest him? In my judgment the answer to that question is that—save perhaps in extreme and exceptional circumstances—he cannot. I qualify the answer because I recognise the force of an argument along the following lines. A constable's ultimate duty is to preserve the Queen's peace and, as Lord Rodger points out at para 83 of his opinion, in doing so he can call upon citizens to assist him. It is, indeed, in certain circumstances an offence (at common law) to refuse to assist a constable in the execution of his duty just as it is an offence (under statute) to obstruct him in the execution of his duty. If an innocent bystander is required to assist a constable to preserve the peace (once it has been breached), why should not an innocent protester be required to stop protesting so as to avert the peace being broken in the first place?

    124.  It is, however, imperative to keep the implications of such an argument within strict bounds. Take Mr Beatty, the Salvation Army captain, or Ms Redmond-Bate, the Wakefield preacher. The Divisional Court was in each case clearly right to have set aside their respective convictions. I repeat, the police's first duty is to protect the rights of the innocent rather than to compel the innocent to cease exercising them. I recognise, of course, that the police do not enjoy unlimited resources. It was largely on this account, and because the rights in question were purely commercial, that this House in R v Chief Constable of Sussex, Ex p International Trader's Ferry Ltd [1999] 2 AC 418 rejected the applicant livestock exporter's challenge to the Chief Constable's decision to police only two rather than five sailings a week from Shoreham. That case, however, is strikingly different from any that I am presently considering. Lord Slynn of Hadley, at p 435, noting that on rare occasions the police had told the company's lorry drivers to turn back, said:

"I do not accept that Beatty v Gillbanks lays down that the police can never restrain a lawful activity if that is the only way to prevent violence and a breach of the peace."

    Then, having quoted an earlier (1993) edition of Professor Feldman's work which had said that "Beatty v Gillbanks tells us nothing about how the very wide discretion to act preventively in apprehension of a breach of the peace should be exercised," Lord Slynn added:

"It seems to me that in the way the police behaved here, they were acting within their discretion and taking the only steps they could, steps which were necessary to protect the lorry drivers from the violence of some of the demonstrators."

    125.  Lord Hoffmann too, at p 444, rejected the company's reliance on Beatty and Gillbanks:

"The Chief Constable does not claim that it would have been unlawful to drive to the docks and no one was arrested for doing so. If someone had been, the case might have raised interesting questions of the kind discussed in the controversial decision of the Divisional Court in Duncan v Jones [1936] 1 KB 218. As it is, the point does not arise."

    126.  Lord Cooke of Thorndon, at p 454, observed that:

"If the [Chief Constable's] policy is upheld, the case is a defeat for the rule of law and a victory for mob rule. Emotive though such descriptions may seem, they are no more than the truth. It is not a question of the rights of peaceable protesters against the rights of the lawful trader. It is the lawless elements acting on the side of the protesters who have won the day. That unpalatable fact must be acknowledged. A decision to that effect cannot be justified except for most cogent reasons."

    The factors which persuaded him that the Chief Constable had "struck a fair and reasonable balance" were, first, that there was a conflict between "the policing needs of the company and those of all the rest of the public of Sussex", second, "that the company's needs are purely commercial", and third, that other ports, notably Dover, were available for the company's operations.

    127.  Would the approach taken by Law C in O'Kelly v Harvey (1883) 14 LR Ir 105 (fully described at para 79 of Lord Rodger's opinion) be lawful today? I can find little in the Strasbourg jurisprudence—which, as I have explained in para 121 above, sanctions the concept of breach of the peace on the express basis that its scope has been clarified by recent decisions—to support it. On the other hand, both article 10 and article 11 provide in terms in sub-clause 2 for interference with the protective rights if this is "necessary" "for the prevention of disorder or crime". Ultimately, therefore, I am persuaded that the approach adopted in O'Kelly v Harvey remains valid today but subject always to two provisos: first, that it is not used as an excuse for the police failing to prepare properly for likely confrontations, and, secondly, that there is absolutely no dilution of Law C's stipulation that the constable has "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 [and] that by no other possible means could he perform his duty of preserving the public peace."

    128.  Remember that the basic common law principle (see para 110 above, repeating para 29 of Lord Bingham's opinion) recognises and requires that if the constable has the power to act, so too he has the duty and so too does the citizen (albeit, as Lord Diplock observed, "it is a duty of imperfect obligation"). It is difficult to say, on the facts of O'Kelly v Harvey, that a citizen, similarly aware as was the Justice of the Peace there of the background to the meeting and the risk of violent opposition, was duty-bound to try to disperse it. Similarly it is difficult to postulate such a duty in Moss to turn back the belligerent miners. But in each case just possible, particularly if the police had needed and sought the citizen's aid. In my judgment, however, the common law power and duty can be taken no further than it was in those cases. O'Kelly v Harvey applies only when absolutely "no other possible means" are available to preserve the public peace; Moss as I said before, carries the concept of imminence to its furthermost limits.

    129.  I said earlier that this question (of what preventive actions can be taken against the innocent) has some tangential relevance to the situation that arose in the present case. Those amongst the 120 coach passengers who were intent only on lawful protest were not, of course, unlike the Land League supporters in O'Kelly v Harvey, acting in any way which might occasion violence in others. But that surely makes it the more, not the less, important that the police should take all possible steps to advance rather than thwart their rights. In short, even if Mr Lambert had both regarded, and been entitled to regard, a breach of the peace as imminent (whether at Lechlade or, indeed, at Fairford had the coaches been allowed to proceed there), it is difficult to see how at common law he would have had the power and the duty to take action against those he had no reasonable grounds to apprehend were intent on violence. He could, of course, have taken whatever steps he judged necessary to prevent those identified as Wombles from breaching the peace. But not Ms Laporte, not at common law.

    130.  I recognise that under section 13 of the Public Order Act 1986 the Chief Constable may in certain circumstances secure the actual prohibition of a public procession. And inevitably in such circumstances the rights of those intent only on peaceful protest are thwarted. Nothing in the Strasbourg jurisprudence prevents this—see, for example, Ziliberberg v Moldova (App No. 61821/00, decision of 4 May 2004). Similarly I do not doubt that the police enjoy wide powers, under section 12 of the 1986 Act, to give such directions as appear to them necessary to prevent "serious public disorder, serious damage to property or serious disruption to the life of the community", powers which again I would expect Strasbourg to sanction. It is, indeed, worth just pausing to consider the extent of these powers: precisely when, by whom and to whom such directions may be given.

    131.  Section 12 (which I need not set out) contemplates three specific situations: (i) where the procession is actually being held, (ii) where persons are assembling with a view to taking part in an intended procession, and (iii) where a procession is intended but people are not yet assembling with a view to taking part in it. Only in the third of those situations must any directions be given by the Chief Officer of Police and be in writing; otherwise they can be given orally by the most senior officer present. The directions will be given to those "taking part" in any public procession, it being necessarily implicit in the section that that includes those "assembling with a view to taking part in it". The directions, however, can only impose conditions "necessary to prevent [the apprehended disorder], damage, disruption or intimidation." Could those like Ms Laporte assembling with a view to taking part in a procession be directed not to do so if the police reasonably judged that necessary? Does section 12 permit a condition of that nature? In my opinion the section affords no clear answer to that.

    132.  Whatever may be the position under section 12, however, there has been no suggestion that the police were invoking that section here. Rather they were relying on the concept of breach of the peace. As to that I agree with what Lord Bingham says at para 52 of his opinion. If indeed the police are to enjoy a power to prevent entirely innocent citizens from taking part in demonstrations already afoot, I have no doubt that it can only be a power conferred by primary legislation. It is certainly not to be found in the common law.

    My Lords,

    133.  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, Lord Carswell and Lord Brown of Eaton-under-Heywood. I gratefully adopt the account of the facts given by Lord Bingham in his opinion, an opinion with which I am, subject to some observations on the decision in Moss v McLachlan [1985] IRLR 76, in full agreement. I add the following observations of my own.

    134.  There has been, and could be, no challenge to the police's decisions to stop and search the three coaches at Lechlade, and to seize such "dangerous instruments or offensive weapons" as were then found, under section 60, and thereafter to require the removal of hoods and scarves worn by certain passengers under section 60AA of the Criminal Justice and Public Order Act 1994. The challenges made are to two subsequent decisions, the first, to refuse to allow the coaches with most of their passengers to proceed to Fairford and, the second, to escort the coaches all the way back to London in a manner preventing any of the passengers on board from leaving them. The police seek to justify both these decisions as action reasonably taken to prevent a reasonably apprehended breach of the peace. The courts below have accepted that such justification existed with respect to the first but not the second decision.

    135.  An important starting point for consideration of all issues on this appeal is article 11 of the European Convention on Human Rights, which provides that

"1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others …..

2.  No restrictions shall be placed on the exercise of such rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state."

    136.  The European Court of Human Rights observed in Djavit An v Turkey (2003) Reports of Judgments and Decisions 2003-III, p 233 that

"56. …. 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. Thus, it should not be interpreted restrictively ….

    The Court reiterated in Christian Democratic People's Party v Moldova (Application No 28793/02; decision of 14 May 2006) that article 11 must be considered in the light of article 10, since the protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association enshrined in article 11 (paragraph 62). The Court stressed the particular importance attached to "pluralism, tolerance and broadmindedness" and the need in a democratic society for the actions or omissions of the Government to be "subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion" (paragraphs 64 and 65). Interference with the right of freedom of assembly is permissible only if prescribed by law and necessary in a democratic society for a reason mentioned in article 11(2) and then only to an extent "proportionate to the legitimate aim pursued" (paragraph 70).