(back to preceding text)

    137.  The common law requirement to keep the peace has been held by the European Court of Human Rights to be sufficiently clear to be regarded as "prescribed by law": see Steel v United Kingdom (1998) 28 EHRR 603, paragraphs 25-29 and 55. This was on the basis that

"… the concept of breach of the peace has been clarified by the English courts over the last two decades, to the extent that it is now sufficiently established that a breach of the peace is committed only when an individual causes harm, or appears likely to cause harm, to persons or property or acts in a manner the natural consequence of which would be to provoke others to violence. It is also clear that a person may be arrested for causing a breach of the peace or where it is reasonably apprehended that he or she is likely to cause a breach of the peace."

The first sentence in this citation appears to me to embrace both situations in which a person has committed an actual breach of the peace and situations in which he merely threatens to cause one, in other words to embrace all the situations in which a person may be bound over to keep the peace, and committed to custody if he or she refuses to be so, under the Justices of the Peace Act 1361 and s.115 of the Magistrates' Courts Act 1980 (cf R v County of London Quarter Sessions Appeals Committee, Ex p Metropolitan Police Commissioner [1948] 1 KB 670). An actual, as opposed to an apprehended, breach of the peace connotes some form of violent disturbance or occurrence. It is, at least for present purposes, unnecessary to consider, whether it must involve some identifiable domestic criminal offence, a point not argued before the House. Breach of the peace is not, as such, a domestic criminal offence. (Steel v United Kingdom indicates that breach of the peace in the extended sense of the first sentence of the citation, justifying arrest to bring the person concerned before a court and leading potentially to committal to prison if he or she refuses to be bound over, counts itself as an "offence" for the purposes of article 5(1)(c) of the European Convention on Human Rights, but that is a different point.)

    138.  For present purposes, it is the second sentence of the citation that matters. In relation to this, the European Court referred to Albert v Lavin [1982] AC 546, 565, where Lord Diplock's speech states the principle as being 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."

    139.  Other authorities refer to preventive action being permitted where no actual breach of the peace has yet occurred, if there is a reasonable apprehension that a breach of the peace is going to occur "in the immediate future" or is "imminent" (R v Howell (Errol) [1982] QB 416, 426C-D and E-F) or is "about to occur or … imminent" (Foulkes v Chief Constable of the Merseyside Police [1998] 3 All ER 705, 711e-f). In Redmond-Bate v Director of Public Prosecutions (1999) 163 JP 789, 791, the Divisional Court equated a breach of the peace which is "about to occur" with an "imminent" breach of the peace, noting also that it was common ground between counsel that the question for the court was not whether a constable's fear of such a breach "fell within the broad band of rational decisions but whether in the light of what he knew and perceived at the time the court is satisfied that it was reasonable to fear an imminent breach of the peace".

    140.  However, there are statements in some authorities which might suggest that all that is necessary to justify reasonable preventive action by a constable (or any other citizen) is that he or she should reasonably apprehend a "real possibility" of a breach of the peace (Piddington v Bates [1961] 1 WLR 162, 169, Moss v McLachlan [1985] IRLR 76, paragraph 24) and that immediacy or imminence should be understood in a flexible sense, according to which the degree of immediacy or imminence "determines what action is reasonable" (Moss v McLachlan, paragraph 24, Minto v Police [1987] 1 NZLR 374, 377). Mr Freeland QC for the respondent sought to develop from them a general proposition according to which the true test is whether the police officer (or other citizen) taking the preventive action reasonably apprehended a real risk of a future breach of the peace and acted reasonably.

    141.  In my opinion, that proposition and the statements on which it relies are to be rejected. So too the suggestion that imminence is a flexible concept, different degrees of which may justify different forms of preventive action. I regard the reasonable apprehension of an imminent breach of the peace as an important threshold requirement, which must exist before any form of preventive action is permissible at common law. Where a reasonable apprehension of an imminent breach of the peace exists, then the preventive action taken must be reasonable or proportionate. But the threshold for preventive action is neither a broad test of reasonableness nor flexible. The proposition advanced by Mr Freeland would give the police (and theoretically any citizen) very extensive power - indeed in the case of the police an active duty - to regulate the behaviour of other citizens in advance in a way which would duplicate a number of statutory powers in this field, would be uncertain in its practical impact and could have a potentially chilling effect on freedom of assembly and expression. The requirement of imminence is relatively clear-cut and appropriately identifies the common law power (or duty) of any citizen including the police to take preventive action as a power of last resort catering for situations about to descend into violence. That is not to suggest that imminence falls to be judged in absolute and purely temporal terms, according to some measure of minutes. What is imminent has to be judged in the context under consideration, and the absence of any further opportunity to take preventive action may thus have relevance.

    142.  In the present case, I agree with Lord Bingham that no breach of the peace was or could reasonably be apprehended to be "imminent" at Lechlade where the three coaches were stopped and searched. Nor is this a case where a breach of the peace by anyone could be said to be reasonably apprehended as imminent on the ground that one would be likely to occur at Fairford if the coaches were permitted to proceed from the layby at Lechlade. Very extensive precautions were in place at Fairford to meet and park vehicles and to channel and control, and counter any threat of disorderly conduct by, protesters arriving on them. Indeed, the plans catered for the possibility that as many as 10,000 protesters would arrive at Fairford. In the event, the latest estimate of the numbers present was 3,000 at 13.05 on 22 March 2003, dropping to 1,200 by 1.27 p.m. and rising to 1,500 by 1.55 p.m. There was and is no reason to think that the plans were inadequate to meet any likely eventualities. If the coaches had been allowed to continue to Fairford, any disturbance (if any) would only have been likely some time after their arrival and then only in circumstances and at a time which could not be predicted at Lechlade. If and when any occurred or was about to occur, the actual or likely trouble-makers would be likely to be identifiable at that time. The respondent's submission that indiscriminate action had to be taken against all 120 passengers at Lechlade faces the justified objection that the suggested difficulty in identifying particular trouble-makers and the suggested need for indiscriminate action only arose because the action taken was premature - taken at a time when a breach of the peace was not imminent. (In fact, for reasons which will appear in paragraphs 152-154, I would not anyway accept that the suggested difficulty and need existed.)

    143.  I would therefore allow this appeal and, since it is accepted that this must then follow, dismiss the cross-appeal. However, I add some observations on two further points. The first is whether and to what extent the police may take preventive action against anyone other than persons committing or reasonably apprehended as being about to commit a breach of the peace. The second is whether, assuming that there was any justification for taking preventive action against anyone at Lechlade, the action taken was justified so far as it concerned the appellant, Ms Laporte.

    144.  As to the first point, preventive action may on any view be taken by a policeman or other citizen against the person reasonably apprehended to be committing or about to commit the breach of peace: see paragraph 138 above. As to action against others, in Ezelin v France (1991) 14 EHRR 362 the Commission considered that

"generally speaking, an individual does not cease to enjoy the right to freedom of peaceful assembly simply because sporadic violence or other punishable acts take place in the course of the assembly, if he himself remains peaceful in his intentions and behaviour" (paragraph 34).

The Court said :

"The Court considers, however, 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" (paragraph 53).

    In Nicol and Selvanayagam v Director of Public Prosecutions (1995) 160 JP 155, Simon Brown LJ, as my noble and learned friend then was, considered that a complaint made seeking under section 115 of the Magistrates' Courts Act 1980 to have the magistrates' court "adjudge any other person to enter into a recognisance …. to keep the peace or to be of good behaviour towards the complainant" would "surely not" be found 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."

    In Redmond-Bate v Director of Public Prosecutions (1999) 163 JP 789, 796-797, Sedley LJ rejected a proposition of law advanced in the case stated before him to the effect that "Lawful conduct can, if persisted in, lead to conviction for wilful obstruction of a police officer", saying:

"This proposition has, in my judgment, no basis in law. A police officer has no right to call upon a citizen to desist from lawful conduct. It is only if otherwise lawful conduct gives rise to a reasonable apprehension that it will, by interfering with the rights or liberties of others, provoke violence which, though unlawful, would not be entirely unreasonable that a constable is empowered to take steps to prevent it."

    145.  The last two authorities indicate that a policeman or other citizen may take preventive action against a person who by interference with the rights or liberties of others is likely to provoke violence. Examples are provided by Albert v Lavin (queue-barging causing angry reactions from other queue members), Nicol and Selvanayagam v Director of Public Prosecutions (1995) 160 JP 155 (disruption of angling), Steel v United Kingdom (disruption of a shoot and invasion of a motorway construction site) and Chorherr v Austria (1993) 17 EHRR 358 (two demonstrators, with large placards affixed to their rucksacks proclaiming "Austria needs no fighter planes", blocking the view of, and arousing increasingly loud protests from, spectators of a march past).

    146.  There are however also situations in which a person deliberately engages in provocative conduct which it might be difficult to describe as interfering with the rights or liberties of others, and causes in reaction a breach of the peace or an imminent likelihood of a breach of the peace by some other person(s). In these situations, it has also been recognised that the police or presumably any citizen has a right (and in the case of the police a positive duty) to take preventive action against the person committing the provocation: see eg Wise v Dunning [1902] 1 KB 167 (gestures highly insulting to Roman Catholic Liverpudlians entitling the magistrates to bind over). Another example may be Humphries v Connor (1864) 17 I CLR 1, where the Court of Queen's Bench in Ireland (Fitzgerald J dubitante) held it to be a valid defence to an action for assault against a constable for removing from the plaintiff a party emblem consisting of an Orange lily that her "wearing [t]hereof was calculated and tended to cause animosity" on the part of others, who were in fact provoked and were following her in a threatening manner. Hayes J spoke (at p 8) of the wearer as "wantonly provoking" a breach of the peace, but Fitzgerald J was troubled by the absence of any positive averment about the wearer's state of mind. (The fact that the constable had, very properly, first requested and the wearer had refused to remove the emblem means that the case may be better viewed in the context of a principle such as that discussed in the next three paragraphs of this judgment, if such removal was the only possible way of avoiding a breach of the peace.)

    147.  The situations which I have identified in the last three paragraphs seem to me the only situations in which a bind over to keep the peace can be required or any other preventive step taken against a person on the ground that it can, sensibly or properly, be said that s/he was about to cause, or actually causing, a breach of the peace. But are these the only situations in which freedom of assembly may be restricted? Some authorities suggest a principle whereby, if it is the only way to prevent a third party (A) causing a breach of the peace, a police officer (or justice of the peace) may request another person (B) to desist from entirely lawful and innocent conduct, and, if B refuses to desist, may physically restrain B or charge B with wilfully obstructing the police officer (or justice of the peace) in the execution of her or his duty. Obstruction may consist in persisting in conduct of a positive nature which is, taken by itself, entirely lawful: cf eg Dibble v Ingleton [1972] 1 QB 480. Perhaps the requisite duty may be found in the general duty of the police and justices to prevent a breach of the peace, and, in the consideration that, if the only way that a police officer has of avoiding a breach of the peace by A is to enlist the assistance of B by asking B to desist from otherwise entirely lawful and innocent conduct, then B as a citizen comes under a duty to afford that assistance when sought. There is practical attraction in such a principle.

    148.  In the event, it is unnecessary on this appeal to reach a concluded opinion as to whether and how far such a principle exists or survives, at common law or now under the European Convention. Assuming, as I shall for present purposes, that it does, its application must, as I have indicated, be confined to rare situations where the only way to avoid a reasonably apprehended and imminent breach of the peace being caused by others is to restrict the freedom of assembly and expression of entirely innocent persons - that is, persons not apprehended to be about to start a breach of the peace themselves or to cause one by interfering with the rights or liberties of, or provoking, others. The Court of Appeal in Ireland held in O'Kelly v Harvey (1883) 14 LR Ir 104 that it was legitimate for a justice of the peace to request the dispersal of a meeting and, upon those present failing to disperse, to lay hands on one of them to achieve such dispersal, if the justice of the peace "had reasonable ground for his belief that by no other possible means could he perform his duty of preserving the public peace" (per Law C at p112, and cf p110 - my underlining).

    149.  As to the European Convention on Human Rights, Mr Pannick QC pointed out that the European Commission and Court have accepted the legitimacy of general statutory restrictions on demonstrations in the form of a public procession, where necessary to avoid a breach of the peace: see Christians against Racism and Fascism v United Kingdom (1980) 21 DR 138 and Ziliberberg v Moldova (Application No 61821/00, decision of 4 May 2004). So the general statements in Ezelin (cf paragraph 144 above) may by parity of reasoning be subject to a similar qualification which would permit preventive action against an innocent person where it was reasonably apprehended that there was no other possible means of avoiding an imminent breach of the peace. On that assumption, a principle permitting such action in such a case would also appear to be sufficiently clear and certain to be considered as "prescribed by law". But the European Court has at all times also stressed the importance of the rights of freedom of assembly and expression and that states have positive obligations to take steps to facilitate their exercise (cf paragraph 136 above). So, wherever possible, the focus of preventive action should, on any view, be on those about to act disruptively, not on innocent third parties.

    150.  In domestic law, the closest English cases to the present are two cases where convictions were upheld for wilfully obstructing the police in the execution of their duty after refusals to obey police directions to desist from lawful conduct which it was found that the police reasonably apprehended would be followed by a breach of the peace. One is Moss v McLachlan (where striking miners intent on a mass picket or demonstration at one of several pits were directed not to proceed to their destination). The other is Duncan v Jones [1936] 1 KB 218 (where Mrs Duncan was directed to address a public meeting in another location). Both decisions are readily distinguishable on their facts from the present appeal. But I have concerns about the actual approach and reasoning in each. In relation to Moss v. McLachlan I am left unclear into which of the different categories mentioned in paragraphs 144/146 and 147/149 above the case should on the facts be regarded as falling. The result is more easily justified if the miners' conduct was of a character described in paragraphs 1445/146 above, but there appears to have been no clear finding on this. Secondly and in any event, I am concerned that the Divisional Court may have materially misdirected itself. True, it did at the end of its judgment express an overall conclusion 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 the cars, imminent, immediate and not remote" (paragraph 27). But in earlier paragraphs the court stressed its view that preventive action was justified by the "real" possibility of a breach and that "the imminence or immediacy of the threat determines what action is reasonable" (paragraph 24). It also indicated approval of Lord Parker CJ's statement in Piddington v Bates [1960 3 All ER 660, 663 that "a police officer charged with the duty of preserving the Queen's Peace must be left to take such steps as, on the evidence before him, he thinks proper" (paragraph 26). There exists in my view the possibility that the views expressed in paragraphs 24 and 26 shaped the conclusions about imminence in paragraph 27. The magistrates in Moss v McLachlan found that "the police honestly and on reasonable grounds feared that there would be a breach of the peace if there was a mass demonstration" at whichever colliery the miners proceeded to (paragraph 13), although they apparently also spoke of "police suspicions that the gathering of a large picket would lead to a breach of the peace" (paragraph 16). The effect of the police action in Moss v McLachlan was to preclude any mass demonstration or picket at any of the four neighbouring colleries, on the basis of a general apprehension of a breach of the peace there because there had been breaches of the peace at colleries in the Nottinghamshire area in the previous days or weeks. I believe that, both at common law and certainly since the Human Rights Act, the court's scrutiny of such factual and legal issues should now be closer than is suggested in Moss v McLachlan.

    151.  In Duncan v Jones, the facts are either reported or were investigated in so limited a way that the merits or demerits of the result are difficult to address. There is a suggestion in Lord Hewart CJ's judgment that the previous disturbance had been on account of ("propter") and not merely post the previous meeting held over a year before by the appellant, but what precisely was meant thereby, what Mrs Duncan had said during the prior meeting, why the previous year's disturbance had resulted and so on what basis it could reasonably be apprehended that a breach of the peace would recur a year later and whether there was any preventive action that could have been taken in relation to those who it was feared would create a disturbance are less than clear.

    152.  The second point assumes (contrary to my view) that a reasonable apprehension of an imminent breach of the peace could be said to exist while the coaches and their remaining passengers were at Lechlade, so that some form of preventive action was permissible against someone. The question then is whether the preventive action actually taken was justified so far as it concerned the appellant, Ms Laporte. In my opinion, it was not, because it has not been shown to have been either reasonable or proportionate.

    153.  The action taken was general and indiscriminate. The police redirected and returned to London all the 120 passengers who arrived on the three coaches at Lechlade. The only exceptions were, apparently, three passengers who were due to speak at Fairford and persuaded the police to allow them to proceed there and a few others who were able to leave the layby on foot during the halt at Lechlade. The police direction and the return took place pursuant to a pre-set plan, recorded in Chief Superintendent Lambert's log at 10.45 a.m., whereby the three coaches were to be sent back, if any offending articles were found. In the event, the number and nature of offending articles found was very limited (cf paragraph 11 of Lord Bingham's opinion), and those that were found were seized. But the plan was nevertheless implemented in relation to all remaining passengers at Lechlade.

    154.  Throughout the relevant period, the log consistently refers to the occupants of the coaches generically as "the 'Wombles'". It does so on seven occasions in all, the first at 10.45 when the plan was recorded, and five times during the period at Lechlade before the direction for return given at 13.55 and implemented at 14.30. The recorded explanation of the direction was simply that, in view of the articles found, the passengers were "making their way here to create a breach of the peace" or "intent on causing a BOP at airbase". But, after the coaches had been stopped in the layby and their passengers had been observed there for a long period (nearly an hour and a half by 13.55), there was or should have been no longer a basis for categorising them all indiscriminately as potentially violent "Wombles". The police intelligence officers present at Lechlade identified no more than eight of the coach passengers as known Wombles (with one other passenger being arrested for an earlier offence at Fairford), a number which could on the face of it have been easily managed at Fairford. The demonstration was organised by the Gloucestershire Weapons Inspectors, an organisation which there was no reason to suspect of any plan to breach the peace and which had duly notified the demonstration to the police. White suits found on the coaches were the uniform of the Gloucestershire Weapons Inspectors as well as worn by Wombles. There was nothing about most of the passengers, and in particular nothing about Ms Laporte, which could suggest any violent intentions. Further, no attempt was made to ascertain affiliations or intentions. On the contrary, individual protesters were given neither the opportunity nor any incentive to explain their positions. Until the coaches were again underway, they were on the contrary allowed to think that they were going to be able to continue to Fairford, and, once the coaches were under way and the contrary became clear, the coach doors were held shut by police outside to prevent passengers disembarking.

    155.  In those circumstances, even if any preventive action had been justified against anyone at Lechlade, I would have regarded the action taken as unreasonable and disproportionate, in particular as regards the appellant, Ms Laporte.

    156.  For the reasons I have given, I would allow the appeal and dismiss the cross-appeal.