Laporte, R (on the application of) v Gloucestershire Constabulary & Ors [2004] EWHC 253 (Admin)

Case No CO/2902/2003[2004] EWHC 253 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 th February 2004
Before
THE RT HONOURABLE LORD JUSTICE MAYTHE HON MR JUSTICE HARRISON
Between
The Queen on the application of JANE LAPORTEClaimant
Michael Fordham (instructed by Bindman & Partners) for Claimant(1) Simon Freeland QC and Jeremy Johnson (instructed by Gloucestershire Constabulary) for Defendant(2) Simon Readhead (instructed by Force Solicitor, Thames Valley Police) and(3) John Beggs (instructed by Directorate of Legal Services, New Scotland Yard) for Interested PartiesHearing Hearing dates : 15 th and 16th January 2004
JUDGMENT

Introduction

[1]On Saturday 22nd March 2003, the claimant, Jane Laporte, was one of about 120 passengers on one of three coaches travelling from London to RAF Fairford in Gloucestershire. She and the other coach passengers wanted to join a demonstration at Fairford against the US led war against Iraq to which she was utterly opposed. Some way short of Fairford, near the town of Lechlade, the coaches were stopped at a lay-by by the Gloucestershire Police. The police searched the coaches and found a number of items which they seized. On instructions from Chief Superintendent Lambert, the coaches with their passengers were then sent back to London under police escort without being allowed to stop on the way.[2]In this application for judicial review, the claimant contends that the actions of the Gloucestershire Police were unlawful. She says that it was unlawful to prevent her from travelling to the demonstration at Fairford and unlawful to force her to return to London, detaining her in the process. She says that preventing her attending the demonstration infringed her freedom of peaceful assembly under Article 11 of the European Convention on Human Rights and her freedom of expression under Article 10. Her detention and forcible return to London infringed her right to liberty under Article 5 of the Convention. She claims declarations to that effect and damages.[3]Richards J gave permission to apply for judicial review. He reserved for the decision of this court whether judicial review is an appropriate procedure. The defendant articulates - somewhat mutedly in the face of lack of enthusiasm from the court - a submission that this is in substance a false imprisonment claim entitling the parties to trial by jury. He submits with somewhat greater persuasion that the issues are more suitable for a witness action with full disclosure and oral evidence, including cross examination. In my judgment, judicial review is not inappropriate. As to disclosure, I doubt if the claimant has any documents of critical importance. The defendant has been able to put all their relevant documents before the court in evidence. There is some force in the plea for oral evidence, but the claimant does not challenge the factual accuracy or good faith of the defendant’s evidence. Since the claimant has chosen judicial review proceedings, the defendant’s evidence is to be taken as it stands.[4]The claimant does not contend that the police actions in stopping and searching the coaches and seizing items found were unlawful. For these actions, there were appropriate authorisations under sections 60 and 60AA of the Criminal Justice and Public Order Act 1994, which the claimant does not challenge.[5]The defendant contends that the police actions in preventing the claimant from travelling further and forcibly returning her to London were lawful and proportionate to prevent likely breaches of the peace. The police did not arrest the claimant, but it is accepted that they detained her. The claimant contends that there is no lawful power of detention falling short of arrest.[6]In addition to the defendant, the Chief Constables of Thames Valley Police and Metropolitan Police were represented as interested parties. Their officers participated in escorting the coaches back to London. It is accepted that they did so at the instance of the Gloucestershire Police. The interested parties made no independent submissions except to discourage the court from considering or referring to wider questions relating to police containment of demonstrations. I understand that the Metropolitan Police Commissioner is concerned with other proceedings arising out of a police containment operation in London on 1st May 2001. This court indicated during the course of the hearing that it would confine its observations to the facts of the present case, and I do so.

Facts

[7]The background to the events of 22nd March 2003 from the defendant’s perspective was as follows. RAF Fairford is a base used by the US Air Force. In the last months of 2002, war with Iraq appeared probable. On 14th December 2002, there were protests at Fairford. There were 500 people there. Damage was caused to the perimeter fence and 30 trespassers were ejected from the site. On 26th January 2003, there was a further protest at Fairford attended by 1500 people. There were four arrests and the perimeter fence was again damaged.[8]On 15th February 2003, several protest groups including “Disobedience Against War” advertised an intended protest demonstration at Fairford on 22nd March. On 20th February 2003, US led military activity against Iraq began with bombing raids on Baghdad. On 23rd February 2003, there was a protest at RAF Fairford, attended by 500 people including groups described as hard core activist groups. These included a London based group called the Wombles – an acronym for White Overalls Movement Building Libertarian Effective Struggles. There was serious disorder. The main gate of the base was forced open and there was a major incursion into the base. There were twelve arrests. A peace camp was established to the south of the airfield, with individuals and groups walking further around the boundary line from the main gate.[9]In early March 2003, websites of Gloucester Weapons Inspectors and the Wombles referred to the planned protest on 22nd March as “Judgement Day – a National day of Action at Fairford”. Protesters were invited to join the “citizens inspection of the biggest bomber base in Europe”. It was suggested that they might wear white contamination suits. Police intelligence suggested that coaches would be available to travel to RAF Fairford from London. On 6th March 2003, 14 B52 bombers and 1300 additional US military personnel arrived at Fairford. There was a protest there on 9th March 2003, which 120 people attended. Damage was caused to the chain link fencing and incursions made onto the site. There were about 20 arrests. Two people entered a munitions storage area. Three people damaged runway approach lights. There were numerous holes in the perimeter fence.[10]On 10th March 2003, the Gloucestershire Police began to plan for the expected protest on 22nd March. They agreed a tactical plan. The Gloucestershire Police and the US Air Force Police agreed that there was a high risk of perimeter incursion and that the 13 mile perimeter could not be adequately or safely policed. On 12th March 2003, there was £1.7m damage caused to an aircraft at an RAF base in Scotland.[11]On 13th March 2003, further holes were made in the perimeter fence. Two people were found in the fuel dump area. On 14th March, two protesters gained entry to RAF Fairford and caused £40,000 damage to vehicles. They smashed windscreens, broke pipes and contaminated fuel supplies with sand. On 18th March, a person was found hiding near the site with ingredients for a suspected incendiary device. On 20th March, a National Public Order Intelligence Unit assessment considered that the recruitment of protesters could be seen as an ideal opportunity to infiltrate individuals or groups with terrorist intent. On 21st March 2003, B52 bombers began to fly operationally from Fairford.[12]The Wombles website stated that they promote anarchism. They had posted a website message on 11th March 2003 under the heading “Smash USAF Fairford! Info on coaches” which stated:
“The first we went their 50 people entered the base, the second time the main gates were pulled down, what happens on March 22nd at USAF Fairford is up to you. Are we going to passively spectate while hundreds of thousands of Iraqis are murdered or are we going to be actively involved in changing history and stopping this war by any means necessarily? Book a place on the coach and find out!”
[13]The police assessment was that hard line protestors would attend on 22nd March with an intention to partake in violent protest and to attempt to enter the airbase. The police had a detailed plan whose intent was to enable the protest to take place peacefully and to minimise the risk of serious public disorder. At 5.30 p.m. on 21st March, Chief Superintendent Lambert gave an authorisation under section 60 of the 1994 Act to exercise powers of stop and search on the following day within a delineated area. The basis for the authority was that he reasonably believed that incidents of serious violence might take place.[14]At 10.45 a.m. on 22nd March, Mr Lambert directed that the coach on which the claimant was travelling should be stopped together with two other coaches and a van. The following note was made in the intelligence 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 airbase. The protesters are the “Wombles”
. A section 60 is in place and I have asked for an objective to be made for the Bronze in charge of the two PSU’s on intercept duty 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 there intent on causing disruption and a breach of the peace and they may find themselves arrested.”[15]The three coaches and a transit van were stopped at Lechlade, less than 5 kilometres from the perimeter of RAF Fairford. The police carried out searches under section 60 of the 1994 Act. When passengers left the coaches, they tried to conceal their identities. One person who was suspected of having caused damage at Fairford on 23rd February was arrested. Mr Lambert was made aware at 12.45 p.m. that the 3 coaches and a transit van had been stopped. He was not at that stage aware that the transit van was unconnected with the coaches and that it was not the van that had been referred to in the intelligence reports. At 1 p.m., Mr Lambert gave instructions for articles to be seized if necessary to prevent a breach of the peace and for the coaches and van to be turned round if that was the case as there was reason to believe that they were coming to Fairford to cause a breach of the peace. At 1.35 p.m., he gave an authorisation under section 60AA of the 1994 Act to remove disguises.[16]A large number of items were seized. When police officers asked who certain items belonged to, nobody accepted responsibility for them. The items seized from the coaches were in the main protective or useful to conceal identity. There were few items capable of being used offensively. The items included masks and some protective clothing, spray paint, two pairs of scissors, a smoke bomb and five shields. It is submitted on behalf of the defendant that these were generally inconsistent with an intention to carry out a peaceful protest. The claimant herself refused to give her name and address when she was asked. It is accepted that she could not be compelled to do so, but suggested that she gave no good reason for not co-operating.[17]At 2 p.m., Mr Lambert was informed of the property found on the coaches, the mode of dress of some of the occupants and the arrest of one person. He concluded that the persons on the coaches were heading for RAF Fairford and were likely to cause a breach of the peace. He gave instructions for the occupants of the coaches to be escorted back to London. The coaches left under escort at 2.30 p.m. At 4.55 p.m., the claimant got off the coach at Shepherd’s Bush. The coaches were escorted back to London because it was feared that otherwise the passengers would seek the first opportunity to find another route back to RAF Fairford.[18]Although those on the three coaches were not permitted to participate, the protest at Fairford on 22nd March 2003 took place and was a lawful assembly. The aim of the Gloucestershire Police in dealing with it was advertised to be to protect life and property, to preserve the peace and to enable peaceful protest to take place. The arrangements made were designed to be sufficient to cater for 10,000 protesters, but many fewer than that in fact attended.[19]The defendant’s essential case depends on Mr Lambert’s reasonable apprehension that, if the coaches were permitted to proceed to Fairford, some at least of their occupants would cause or contribute to a breach of the peace there. In the circumstances that the claimant has chosen to proceed by judicial review upon untested written evidence, I accept that that was his apprehension and that it was reasonable. The case is that such an apprehension justified in law both preventing the coaches from proceeding to Fairford and the enforced return of their occupants to London.

The common law

[20]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 unlawful disturbance. For such a breach of the peace when done in his presence, a constable or anyone else may arrest an offender without a warrant – see R v Howell [1982] QB 416 at 427. 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”. This includes where the arrestor reasonably believes that a breach of the peace will be committed in the immediate future by the person arrested – see Howell at page 426.[21]In Albert v Lavin [1982] AC 546, the defendant, in an attempt to board a bus, pushed past a number of people standing in a bus queue. Several of them objected, and a police constable in plain clothes, fearing a breach of the peace, sought to prevent the defendant from boarding the bus. A struggle took place, and the constable pulled the defendant away from the queue. He then told the defendant that he was a police officer and that, if he did not stop struggling, he would arrest him. The defendant, who did not believe that the constable was a police officer, hit him five or six times. He was arrested and charged with assaulting a constable in the execution of his duty contrary to section 51 of the Police Act 1964. A question arose before the justices and the divisional court whether the defendant had reasonable grounds for his belief that the constable was not a police officer. The House of Lords held this to be irrelevant. In dismissing the defendant’s appeal, the House of Lords held, in the words of Lord Diplock at page 565, 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.”
[22]Where in exercise of the common law power of arrest, a person arrests another for an offence, his duty is to take the arrested person before a justice or to a police station as soon as he reasonably can - see John Lewis v Tims [1952] AC 676. A breach of the peace is not an offence within this context and the provisions of the 1984 Act do not apply – see Williamson v Chief Constable of the West Midlands Police [2003] EWCA Civ 337. But as Dyson LJ said in that case:
“19. Finally, I should add that I do not consider that it was irrational of Parliament to have decided to exclude arrest and detention for breach of the peace from the scope of PACE. The common law provides persons arrested and detained for breach of the peace with a considerable measure of protection against arbitrary arrest and/or unreasonable detention. Thus, an arrest may only be lawfully made if a breach of the peace is being, or reasonably appears to be about to be, committed in the presence of the arresting person and it is reasonable for an arrest to be made: see Albert v Lavin [1982] AC 546, 565B-C. When a person is arrested at common law for breach of the peace, the arrested person must be taken to a police station and then brought before a justice as soon as reasonably practicable: see John Lewis & Co v Tims [1952] AC 676, 691-2 (per Lord Porter). 20. No doubt there are arguments in favour of extending PACE to apply to arrest and detention for breach of the peace. One of these is that the bail conditions contained in section 34(5) do not apply. I should add that it has not been suggested before us that the police have the power at common law to release a detained person on bail. As against that, it can be said that, for the most part, persons detained for breach of the peace are either released unconditionally after a very short period of detention, or are promptly brought before the magistrates’ court by the police exercising their common law powers. 21. If the police consider or ought reasonably to consider that there is no longer a real (as opposed to fanciful) danger that, if released, the detained person will commit or repeat his breach of the peace within a short time, and they decide, or ought reasonably to decide, that a bind over to keep the peace is unnecessary, then continued detention is unlawful at common law. Furthermore, if the police reasonably consider that such danger exists, detention will become unlawful at common law if they fail to take the detained person to the magistrates’ court as soon as reasonably practicable. In this way a detained person is afforded a substantial degree of protection by the common law.”
[23]It will be necessary to consider Article 5 of the European Convention on Human Rights later in this judgment. At common law, the philosophical position appears to be that there may be a distinction between arrest and detention. There is a common law power of detention to prevent a breach of the peace which may not also amount to arrest (Albert v Lavin). If a person is arrested and detained (or just detained) for any prolonged period, they must be taken before a magistrate. But if a breach of the peace is no longer reasonably apprehended, a person detained may be released unconditionally without being taken before a magistrate, and must be released if he is not taken before a magistrate.

Parties’ submissions and discussion

[24]Mr Fordham, counsel for the claimant, correctly submits that the common law power of a police constable to arrest where no actual breach of the peace has taken place but where he apprehends that such a breach may be caused is exceptional. The apprehended breach of the peace must be about to occur or be imminent. There has to 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 – see Foulkes v Chief Constable of the Merseyside Police [1998] 3 All ER 705 at 711. Mr Fordham further submits that the threat of breach of the peace must come from the person who is to be arrested – see Bibby v Chief Constable of Essex Police (The Times 24th April 2000). The apprehension of breach of the peace must be objectively reasonable. He emphasises that the power of arrest carries with it a duty to bring the person arrested to a police station and then before a magistrate as soon as reasonably practicable.[25]The facts of Moss v McLachlan [1985] IRLR 76 occurred during the 1984 miners’ strike. The 4 appellants, all striking miners, were travelling in a convoy of motor vehicles on the M1 in Nottinghamshire. They were stopped by a police cordon at a junction and required to turn back. The police officer doing this stated that he had reason to fear a breach of the peace if they continued to the pits, and that he had a duty at common law to prevent a breach of the peace. The appellants attempted to continue and were arrested on the ground that if they proceeded the police feared a breach of the peace at one of the 4 collieries. They were convicted by magistrates of wilfully obstructing a police officer in the execution of his duty. There were 4 pits within 5 miles of the cordon, and over 25 cars carrying over 60 striking miners were involved in the attempt to break through the police cordon. The divisional court held, on an appeal by case stated, that there was ample evidence to support the magistrates’ conclusion that the police, when they stopped the convoy of striking miners, honestly and reasonably feared that there would be an imminent breach of the peace if the striking miners were allowed to continue to the collieries. The police were not only entitled, but under a duty to take reasonable steps to prevent the breach of the peace occurring. The mere presence of such a body of men at the place in question in the context of the situation in the Nottinghamshire coalfields was enough to justify the police in taking preventive action. Nor could it be held that the breach of the peace was not imminent so that the police were not entitled to take preventive action. Skinner J said at paragraph 24:
“The possibility of a breach must be real to justify any preventive action. The imminence or immediacy of the threat to the peace determines what action is reasonable. If the police fear that a convoy of cars travelling towards a working coal field bearing banners and broadcasting, by sight or sound, hostility or threats towards working miners might cause a violent episode, they would be justified in halting the convoy to inquire into its destination and purpose. If, on stopping the vehicles, the police were satisfied that there was a real possibility of the occupants causing a breach of the peace one-and-a-half miles away, a journey of less than five minutes by car, then in our judgment it would be their duty to prevent the convoy from proceeding further and they have the power to do so.”
The facts in that case are quite close to those in the present case, except that in Moss the actions of the police did not extend to detaining the striking miners and forcibly returning them to where they had come from.[26]Mr Fordham submits that the Human Rights Act 1998 reinforces the common law. Under section 6 of the 1998 Act, it is unlawful for the police, a public authority, to act in a way which is incompatible with a Convention right. Article 5 of the Human Rights Convention provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:(a) …(b) The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;(c) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; … 3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” (a) … (b) The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; …[27]Contrary to my personal inclination as to the syntax of Article 5(1)(c), it appears that this paragraph authorises the arrest or detention of a person only when it is effected for the purpose of bringing him before the competent judicial authority – see Lawless v Ireland (No. 3) [1961] 1 EHRR 15 at 23; Engel v The Netherlands (No. 1) [1976] 1 EHRR 647 at 673; see also Brogan v United Kingdom [1988] EHRR 117 at paragraph 53. From this, Mr Fordham submits that detention without arrest to prevent an anticipated breach of the peace but not in order to bring the person detained before a magistrate is not lawful. An extreme version of this submission would mean that Albert v Lavin should no longer be regarded as good law, and that Dyson LJ was mistaken in Williamson to sanction, as he apparently did, unconditional release from detention without bringing the person detained before a magistrate if a breach of the peace is no longer apprehended.[28]As to Articles 10 and 11, Mr Fordham submits that the claimant’s freedom of expression and of assembly and association may be subject only to such restrictions as are prescribed by law and necessary in a democratic society in the interests, in the present case, of public safety or for the prevention of disorder or crime. As to whether the restrictions relied on by the defendant are prescribed by law, Mr Fordham refers to Steel v The United Kingdom (1999) 28 EHRR 603 at paragraph 94, where the European Court of Human Rights held that the requirement under Article 10(2) that an interference with the exercise of freedom of expression be “prescribed by law” is similar to that under Article 5(1) that any deprivation of liberty be “lawful”. The court held in Steel that, although breach of the peace is not classified as a criminal offence under English law, it is nevertheless to be considered an offence within the meaning of Article 5(1)(c) of the Convention, bearing in mind the nature of proceedings and the penalties which could be imposed by the court. The court was satisfied that the concept of breach of the peace met the requirements of Article 5(1)(c).[29]Mr Freeland QC, for the defendant, submits that the issue in the present case is whether the decision of Chief Superintendent Lambert to turn back the coach was a decision which, taking into account the passengers’ right of liberty and right to protest, no reasonable officer properly directing himself as to the law could have made. He seeks to edge the question as close to a Wednesbury question as the authorities permit. In this context, Mr Fordham directs our attention to R v Shayler [2002] UKHL 11, [2003] 1 AC 247. At paragraph 33, Lord Bingham of Cornhill said that, in any application for judicial review alleging violation of a Convention right, the court will now conduct a much more rigorous and intrusive review than was once thought to be permissible. Lord Bingham referred to the opinion of Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, 546. In the passage which Lord Bingham quoted, Lord Steyn said that the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations. Lord Hope said in Shayler at paragraph 61 that a close and penetrating examination of the factual justification for the restriction is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them. I accept that the court is obliged in the present case to conduct a rigorous and intensive review, including a close and penetrating examination of the defendant’s factual justification for what Chief Superintendent Lambert instructed his officers to do.[30]Mr Fordham submits that the decisions to prevent the claimant from attending the demonstration and her enforced return to London under police escort were unlawful. He submits that there was no imminent apprehended breach of the peace. He submits that the indiscriminate decision to stop and return three coach loads of passengers, including the claimant, insufficiently distinguished between different individuals. The police were concerned with hard core activists. There was no sufficient inquiry to determine whether the claimant was among any hard core activists. Mr Fordham further submits that the claimant’s detention and enforced return to London were unlawful and disproportionate.[31]Chief Superintendent Lambert had recorded in terms in his log book at 10.45 a.m. that the coach passengers were not to be arrested when they were stopped. If a breach of the peace was the only apparent offence then, he did not consider that such a breach of the peace would be imminent. It would become imminent, if they were allowed to continue to RAF Fairford.[32]As to the “blanket” approach of the police, Mr Fordham submits that Chief Superintendent Lambert treated all those on the coaches indiscriminately. His apprehension of a breach of the peace was concerned with the view that hard core protesters were intent on violence. There was no evidence that the claimant had such an intent. She had attended a previous Fairford demonstration peaceably. She was not one of those who entered the gates when they were pulled open. In treating the passengers collectively, Mr Lambert only considered that there was a potential risk that some peaceful protesters might be caught up in his decision not to allow the coaches to proceed. Other coach loads of protesters were allowed to proceed. There was no proper basis for supposing that all those on the coaches which were stopped were hard core activists. The police knew that transport arrangements had been advertised not only on the Wombles website but also elsewhere. They knew that travel arrangements had been made in a number of ways. There was no proper basis for supposing that all those on the coaches were Wombles.[33]Mr Lambert’s decision was partly based on the articles seized from the coaches. He had already decided that the coaches would be turned back if offending articles were found. In fact, the nature of the articles found scarcely measured up to his own criteria for doing so. In the context of any attempted incursion into RAF Fairford, for practical purposes none of the articles seized were to be regarded as offensive. Two pairs of scissors would not make much impression on the perimeter fencing of the air base. Mr Fordham submits that there is no record of Mr Lambert considering the nature of the items actually seized. He had plainly decided to turn the coaches round before they were stopped and whatever was found on them. Ironically, since the articles were seized, if the coaches had proceeded, the articles would not have been available for use at Fairford.[34]Mr Fordham contrasts the facts in the present case with those in Cumming v Chief Constable of Northumbria Police [2003] EWCA Civ 1844. In that case, the police arrested a group of 6 council employees on suspicion of perverting the course of justice by tampering with a CCTV tape recording. The employees had been narrowed down to 6 who had the opportunity to commit the offence. Latham LJ said at paragraph 41:
“Where a small number of people can be clearly identified as the only ones capable of having committed the offence, I see no reason why that cannot afford reasonable grounds for suspecting each of them of having committed that offence, in the absence of any information which could or should enable the police to reduce the number further.”
Brooke LJ was very uneasy about the case. He said that it seemed very strange that the law could raise no protest when 5 loyal employees of the council could be arrested and detained for an offence which the police reasonably believed only one of them must have committed. Despite his unease, Brooke LJ agreed with Latham LJ’s analysis.[35]Mr Fordham submits that in the present case the police made no attempt, by questioning or facial recognition, to distinguish between those who might be hard core activists and those who were not. The claimant’s evidence is that the police did not question her about anything found on the coach nor about her intentions at the demonstration. There is evidence from the police themselves that the leading Wombles activists were well known to officers within the Metropolitan Police and that an officer of the Metropolitan Police, who was helping at Lechlade, recorded eight named individuals whom he readily recognised.[36]Mr Fordham submits that the enforced return of the coach passengers to London constituted unlawful detention. He relies on his submissions that the police did not apprehend any imminent breach of the peace and that the facts did not justify as proportionate an indiscriminate approach. It would not have been lawful to arrest the coach passengers in the lay-by. It was not lawful to detain them without arresting them. Since the claimant was not arrested, she did not have the safeguard of being taken before a magistrate as soon as this was reasonably practicable. Since her detention was not for the purpose of bringing her before a magistrate, the requirement of lawfulness under Article 5(1)(c) of the Convention was not satisfied. The police did not bring the claimant before a magistrate and her detention was not for that purpose. Mr Fordham further submits that, even if an apprehended breach of the peace at Fairford was a justified reason for turning the claimant and other coach passengers away, forced return from Gloucestershire to London was wholly disproportionate and detention during a coach journey lasting more than two hours was disproportionately long.[37]Mr Freeland on behalf of the defendant submits that at common law police officers have the power to take all reasonable steps to prevent a breach of the peace. This includes, not only a power of arrest, but a power of detention using reasonable force short of arrest. He relies on Albert v Lavin. In addition to the passage from the opinion of Lord Diplock which I have already referred to, Mr Freeland refers to the judgment of Hodgson J in the Divisional Court at page 553 where he said:
“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: .… 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.”
Mr Freeland refers to DPP v Meaden [2003] EWHC 3005 (Admin) and DPP v Morrison [2003] EWHC 683 (Admin) as analogous examples of common law powers to restrict a person’s freedom of movement without arresting them.[38]Mr Freeland submits that the circumstances in which a breach of the peace may be apprehended vary infinitely, and that whether the apprehended breach of the peace is “imminent” or “about to happen” (to use the words of Lord Diplock in Albert v Lavin) will depend on all the circumstances. I accept this submission so far as it goes, but there must be a limit beyond which the concept of imminence will not stretch. I also consider that it may be relevant to consider what actions on their part the police are seeking to justify, and what preventive steps are practical. Preventing a single person from committing a breach of the peace is a different thing from preventing a large number of people from doing so. Different preventive measures may be justified in each case and this in turn may lend colour to what is properly apprehended as imminent. Mr Freeland submits that, when a coach contains passengers who are expected to resort to violence on reaching their destination, that is a sufficient basis for preventing them reaching the destination by stopping them at a convenient place which in the context of motor travel by road is close to the destination and where the preventive measures can be taken in an orderly way. He draws attention to the similarities between the present case and Moss. On the facts of the present case, he submits that a breach of the peace was properly to be regarded as imminent.[39]In my view, there are difficulties with this submission. It is necessary to distinguish between arrest and preventive action short of arrest. On the facts of the present case, Mr Freeland struggles to submit persuasively that any apprehended breach of the peace justifying arrest was imminent at the time when the coaches were in the lay-by. Mr Lambert’s own assessment at the time had been that it was not. He did not consider that anticipated circumstances in the lay-by would justify the arrest of the passengers in the coaches. In my view, he was correct in this. His view was that arrest would have been justified if they had reached RAF Fairford itself. If in law the circumstances which justify preventive measures short of arrest, which interfere with a person’s freedom under Articles 10 and 11 of the Convention, are the same as those which justify arrest, it is difficult to justify the preventive measures in the present case. On the other hand, Moss is an authority providing strong support for Mr Freeland’s case that the preventive measures in the present case falling short of detention were legitimate. To comply with Articles 10(2) and 11(2) of the Convention, restrictions of this kind have to be prescribed by law and necessary in the democratic society in the interests of public safety or for the prevention of disorder or crime. 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. 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, 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 uncooperative 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.[42]As to the enforced return of the coach passengers to London, Mr Freeland submits that the apprehended breach of the peace was imminent within the terms of Moss and that there was no basis upon which the police might distinguish between one passenger and another. The intelligence, which was credible, related to the coaches as a whole and the passengers were uncooperative when they were asked about their identities and the ownership of the items seized. Mr Freeland submits that in the circumstances the enforced return to London was a proportionate, necessary and reasonable step to prevent the apprehended breach of the peace. In the absence of oral evidence, the court should not speculate about other possibilities, such as taking steps to stop the coaches from approaching the air base by other routes if they chose to do so.[43]Mr Freeland submits that the law does not impose a straight jacket where the only option is arrest. It would have been impractical and disproportionate to arrest 120 people and take them before a magistrate. Detaining them on the coach for so long as was necessary to remove them from the area and prevent them joining the demonstration was a more proportionate and practical choice. Mr Freeland urges numerous features of the evidence as justifying Mr Lambert’s conclusion that a breach of the peace would occur if the coaches were allowed to travel to Fairford. I have already indicated that in my view the court should proceed on the basis that Mr Lambert honestly and reasonably held this view. My only minor gloss is that the nature of the articles seized from those on the coaches does not seem to me to add much to the intelligence available to Mr Lambert before the coaches arrived, which he himself did not consider would justify arresting the coach passengers when they were stopped at some distance from the air base.[44]As to Article 5 of the Convention, Mr Freeland submits that the claimant’s detention was readily justified under Article 5(1)(b) which allows arrest or detention to secure the fulfilment of any obligation prescribed by law. He refers to DPP v Meaden [2003] EWHC 3005 (Admin) as an example of permissible detention short of arrest to prevent a person walking around his own home whilst it was being lawfully searched. In that case, there was a warrant which authorised a search of premises and persons for controlled drugs and documents connected with drug offences. The court held that, to be meaningful, the authority given by the warrant had to enable the search to be effective. It could not be effective if the occupiers of the premises were permitted to move about freely while the search was going on. It was entirely reasonable that officers should seek, by no more force than was necessary, to restrict the movements of those in occupation of the premises while they were searched. Rose LJ accepted in paragraph 26 of his judgment that this might not come within Article 5(1)(c) of the Convention, but said that it might well be within Article 5(1)(b). But it did not seem to him that Article 5 added anything to the common law principles which were in his view determinative in the case before the court.[45]On the face of it, detention “to secure the fulfilment of any obligation prescribed by law” does not in the context happily encompass a negative obligation not to act in breach of the peace. I would expect that part of Article 5(1)(b) to refer to positive obligations prescribed by law. Since in appropriate circumstances a breach of the peace is within the ambit of “offence” in Article 5(1)(c), it would be surprising if the same matters were encompassed within Article 5(1)(b) to justify detention which was not for the purpose of bringing the person detained before a competent legal authority. This is confirmed to be correct in the judgment of the European Court of Human Rights in Engel. The case concerned provisional arrest under the Netherlands military discipline procedure. “Provisional arrest may be effected either in the interest of an investigation or in order to prevent disorder” (see paragraph 26 of the judgment). In paragraph 69, the court stated:
“The court considers that the words “secure the fulfilment of any obligation prescribed by law” concern only cases where the law permits the detention of a person to compel him to fulfil a specific and concrete obligation which he has until then failed to satisfy. A wide interpretation would entail consequences incompatible with the notion of the rule of the law from which the whole Convention draws its inspiration. It would justify, for example, administrative internment meant to compel a citizen to discharge, in relation to any point whatever, his general duty of obedience to the law.”
The court held that provisional arrest more resembled that spoken of in Article 5(1)(c) of the Convention, but that in the case before the court it did not fulfil one of the requirements of that provision because Mr Engel’s detention had not been “effected for the purpose of bringing him before the competent legal authority”. The same point is to be found as the opinion of the Commission in paragraph 9 of the court’s judgment in Lawless.[46]In my judgment, therefore, the detention of the coach passengers while they were escorted back to London did not come within Article 5(1)(b) of the Convention. Nor, on the face of it, was it justified under Article 5(1)(c) because it was not effected for the purpose of bringing the persons detained before a magistrate. This might arguably suggest that there is a conflict between Article 5(1)(c) and the common law power and duty of detention short of arrest which Albert v Lavin enunciates and illustrates. The apparent conflict may, however, be readily resolved. The power and duty to use reasonable force to detain someone to prevent an immediately apprehended breach of the peace, although it may be described as transitory detention, is scarcely detention within the scope of Article 5. It is perhaps analogous to using reasonable force in self defence. It is a defence to an allegation of assault. There should be and, in my judgment, is no obligation to bring a person thus prevented from breaching the peace before a magistrate, provided he is released unconditionally as soon as the immediate apprehension of breach of the peace is past. But detention beyond that period will not be justified unless there is an arrest followed by bringing the person arrested before a magistrate. How long transitory detention of this kind without arrest may lawfully last will depend on the facts of the case, but it cannot be for long. This view of the law is consonant with the passage in the judgment of Dyson LJ in Williamson which I have quoted in paragraph 22 above. It is also consonant with paragraph 58 of the judgment of the European Court of Human Rights in Brogan, where the court said:
“The fact that a detained person is not charged or brought before a court does not in itself amount to a violation of the first part of Article 5(3). No violation of Article 5(3) can arise if the arrested person is released “promptly” before any judicial control of his detention would have been feasible.”
[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.[48]I appreciate this view of the law may cause difficulties for the police in circumstances such as those at Fairford on 22nd March 2003, and there is no proper basis for impugning Mr Lambert’s intention or motive. But the detention on the coaches which he instructed was not, in my judgment, lawful. The claimant is entitled to a declaration to that effect and an inquiry as to damages. Harrison J: I agree.

Cited in 4 later judgments