Laporte & Anor v The Commissioner of Police of the Metropolis [2014] EWHC 3574 (QB)

Case No HQ12X00694

[2014] EWHC 3574 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31/10/2014

Before

MR JUSTICE TURNER

Between

JANE LAPORTEClaimants

NICOLAS CHRISTIANClaimant

THE COMMISSIONER OF POLICEDefendant

OF THE METROPOLISDefendant

Phillippa Kaufmann QC and Martha Spurrier (instructed by Bhatt Murphy) for Claimants

George Thomas and Cecily White (instructed by Metropolitan Police Service) for Defendant

Hearing Hearing dates: 30 th June to 18 th July 2014

Judgment

INTRODUCTION

[1]The claimants in this case seek(i) damages against the defendant for assault and battery, false imprisonment and malicious prosecution and

(ii) a declaration that he has violated their rights under Articles 10 and 11 of the European Convention on Human Rights.

A PRELIMINARY OBSERVATION

[2]At the outset, I would wish to say something about the way in which I propose to attempt to meet the challenge, which arises in acute form in this case, of producing a satisfactory judgment which is also one of manageable length. I have considered a very substantial quantity of material. The parties in this case have produced opening and closing written submissions which run to a combined length of about 280 pages all of which I have read carefully. These documents contain long and detailed catalogues of inconsistencies and implausibilities which each side contends have the effect of weakening the evidence of the witnesses called by the other. As one might expect, the documents also contain a substantial number of examples of material alleged to enhance the credibility of their own witnesses. Whilst paying tribute to the level of industry to which these well intentioned and articulate submissions attest I resist the temptation to try to reconcile and resolve all of the subordinate issues which have thereby been generated. As the Court of Appeal held in Customs and Excise Commissioners v A and Another [2003] Fam. 55:

“82 A judge's task is not easy. One does often have to spend time absorbing arguments advanced by the parties which in the event turn out not to be central to the decision-making process… 83 However, judges should bear in mind that the primary function of a first instance judgment is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. The longer a judgment is and the more issues with which it deals the greater the likelihood that: (i) the losing party, the Court of Appeal and any future readers of the judgment will not be able to identify the crucial matters which swayed the judge; (ii) the judgment will contain something with which the unsuccessful party can legitimately take issue and attempt to launch an appeal; (iii) citation of the judgment in future cases will lengthen the hearing of those future cases because time will be taken sorting out the precise status of the judicial observation in question; (iv) reading the judgment will occupy a considerable amount of the time of legal advisers to other parties in future cases who again will have to sort out the status of the judicial observation in question. All this adds to the cost of obtaining legal advice. 84 Our system of full judgments has many advantages but one must also be conscious of the disadvantages.”

[3]I have tried to balance those advantages and disadvantages in what follows by giving reasoned decisions on those issues of fact which I consider to be central but without dealing with every peripheral issue the resolution of which would not in any event impact on my essential findings or upon the outcome of the claims.

BACKGROUND

[4]Much of the background to the circumstances giving rise to these claims is not in dispute. A considerable amount of relevant and contemporaneous material has been captured on films and still photographs taken on mobile telephones, together with footage recorded on CCTV cameras. It is therefore possible to narrate, at least in general terms, the events of the occasion in question without generating undue controversy.

[5]On 24th February 2011, Haringey London Borough Council (“the Council”) planned to hold a full council meeting at Haringey Civic Centre at which it was to debate proposed cuts to the Council’s budget and services. A budget had to be agreed by midnight. The meeting was due to start at 7.30pm. The public were to be allowed to attend in the public gallery on the second floor. This provided seating for eighty people and overlooked the council chamber which was on the first floor. Space in the public gallery was to be allocated on a “first come first served” basis.

[6]Representatives of both the Council and the Metropolitan Police were aware in advance of a planned public protest against the cuts to be held outside the building. They had not, however, anticipated that the protestors might thereafter take further and disruptive action inside the building. Thus the Defendant’s intention was that the protest, provided it remained peaceful, would be policed by a small number of local officers comprising one inspector, two sergeants and six police constables. The officer supervising the operation was Inspector French.

[7]The plan was that twelve members of staff employed by the Council would be on duty in the reception area to search the bags of people entering the building and to direct members of the public up to the public gallery and councillors to the main chamber. A spiral staircase led from the foyer to the council chamber via a galleried footbridge. It was intended that this would be the route taken by councillors and staff. Members of the public were to use the main stairs, which, incidentally, provided access to all three floors, to get to the public gallery. Two officers were to be deployed inside the building to facilitate the safe movement of members of the public up the main stairs to the public gallery and to prevent them from gaining access to the footbridge leading to the council chamber.

[8]By 7.10pm a considerable number of protesters had gathered outside the Civic Centre chanting noisily and waving placards. When the doors were opened many of them surged into the building. Almost immediately it became apparent that the plan to control access to, and to direct access within, the building was not going to work.

[9]Some protesters made their way up the main staircase but a number of them went up the spiral staircase. Three officers on the first floor footbridge, Inspector French, Acting Police Sergeant Kneebone and PC Bloomfield, were vainly attempting to direct protestors to the main staircase. Soon, a crowd had gathered on the footbridge. They were chanting:

“Whose town hall? Our town hall!”

[10]The doors to the council chamber from the first floor landing were closed but many of the protesters were undeterred by this. Some began to chant:

“Let’s go in!” and “Push forward.”

Police officers formed a cordon in front of the doors and asked the protesters to move back. By this stage, the situation had, to say the least, got completely out of hand. The sheer weight of numbers of the protesters pushing forwards in a relatively confined space gave rise to a real risk that people would be injured in the crush.

[11]In response to the deteriorating situation, and about ten minutes after the protesters had first entered the building, Inspector French requested that Territorial Support Group (“TSG”) officers should be deployed. The TSG is a uniformed unit of the Metropolitan Police specialising in public order containment.

[12]The doors to the council chamber eventually gave way. The force involved was sufficient to cause one of the officers to be pressed so hard against them as to break the glass. Some protestors then moved forward to occupy the chamber. After a few seconds, the police were able to re-establish the cordon but only after a significant number of protestors had already entered the council chamber itself.

[13]By this time, councillors had started to gather in the council chamber ready to start the meeting. Soon, the leader of the Council, Claire Kober, emerged and warned the protesters that if the disturbance were to continue then it might become necessary to hold the meeting behind closed doors. It is difficult to tell how many members of the crowd would have heard what she had to say, so loud was the chanting at this stage. Some were shouting repeatedly for her resignation. Others were just making inarticulate noise. There can, however, be no doubt that it would have been impossible for the council meeting to take place so long as the protest continued to involve the occupation of the chamber accompanied by noisy shouting and ululation.

[14]The councillors in the chamber then went outside via a fire exit. They were later let back into the building and they reassembled in the third floor staff canteen area. The canteen is not an area of the building that is open to the general public. It is accessed from a landing at the top of the main staircase via a set of magnetically locked doors which can be released with a swipe card issued to those with a right of access. The councillors’ intention was to reconvene the meeting away from the public because of the serious disruption and disorderly behaviour in the council chamber.

[15]The First Claimant, Ms Laporte, suspected that the councillors were using the protest as a pretext upon which to hold their meeting in private and believed that they should not be allowed to avoid the continued scrutiny of members of the public. She went to the third floor to see if the councillors were planning to hold their meeting there. Satisfied that they were, she then returned to the public gallery to tell other protestors.

[16]A number of them, including the Second Claimant, Mr Christian, made their way up to the third floor where their access to the canteen was blocked by the locked doors. They started to bang on the closed doors. Five local police officers soon appeared on the other side of the doors and one of them gestured to the protesters through the glass panels that they were not allowed in. The protesters optimistically and unsuccessfully tried to persuade the officers to let them through.

[17]Eventually, three of the five officers, confident in the unfounded belief that the locked doors would continue to hold the protesters at bay, proceeded back down the corridor in the direction of the canteen leaving only two of their colleagues at the door.

[18]The situation then changed dramatically when someone set off the fire alarm, the effect of which was automatically to release the magnetic lock to the doors. The protesters saw their opportunity and took it. They pushed past the two police officers whose obvious but hopeless intention was to hold them back. Over a period of about forty seconds or so the officers were overwhelmed by the momentum of the protesters. These protesters, about fifteen in number, then streamed down the corridor which led to the canteen where the councillors were to be found.

[19]It was thirteen minutes past eight. This was the moment upon which the protesters had achieved the furthest extent of their incursion. But the tide was about to turn.

[20]At the point beyond a second set of double doors where the corridor widens into the canteen area, eight local officers made a further attempt to halt the progress of the protesters and tried, with some success, to push them back. It was very shortly after this that officers of the TSG led by Inspector Wakeford arrived on the scene. About twenty of them advanced to the third floor while the protesters were still in the corridor leading to the canteen. Inspector Wakeford shouted:

“Breach of the peace!”

He ordered his officers to “take one person each”. As the police were moving the protesters out of the corridor, Ms Laporte is seen on film shouting:

“What the fuck are you doing?”

[21]The details of what followed are in dispute. The video evidence shows that the police officers were, at the very least, physically ushering the protestors down the main stairs. There is an issue as to the extent of the force used and the extent to which such force met with resistance on the part of the protesters.

[22]Eventually, the police succeeded in expelling the protesters from the building and securing the doors against any further attempt to gain access. By this time, two of the protesters had been arrested, Ms Laporte and Mr Christian. The hotly contested circumstances in which they came to be arrested and subsequently detained and prosecuted form the subject matter of their respective claims.

[23]However, before I turn to the details of the events relating specifically to the claimants, it is necessary for me to address an important issue as to whether the actions of the police in using force to move the protesters down the corridor and down the stairs thereafter were lawful. The claimants’ position is that the actions of the police in using force to remove the protesters, even from the canteen, were unlawful and that they had certainly gone beyond the bounds of legitimacy when they were bundling them down the stairs. The defendant, in contrast, asserts that it was entirely permissible for the police not only physically to expel the protesters from the upper floors down the main staircase but also out of the building completely.

[24]I must, therefore, consider each of the grounds upon which the defendant seeks to maintain that the officers were entitled to deploy force both before and after the protesters were out of the corridor.

POWER TO EXCLUDE AND EJECT FROM MEETINGS

[25]At common law, a local authority was at liberty to decide as a matter of unfettered discretion who could and who could not attend its meetings. In Tenby (Corp) v Mason (1908) 6 L.G.R. 233 the Court of Appeal held that a local authority had a power not only to exclude members of the public and the press generally from attending and reporting upon its meetings but also, on the particular facts of the case, to choose which individual members of the press could or could not attend. Cozens-Hardy M.R. held unequivocally at p. 240:

“…no member of the public…has a right to attend meetings of the council unless by express or implied permission of the council itself.”

[26]This unpopular decision led to the passing of the Local Authorities (Admission of the Press to Meetings) Act 1908. However, the 1908 Act was concerned solely with the rights of the press and it was not until 1960, upon the enactment of the Public Bodies (Admission to Meetings) Act 1960, that the general public was afforded a statutory right of attendance. Section 1 (1), as originally enacted, provided:

“Admission of public to meetings of local authorities and other bodies. (1) … any meeting of a local authority or other body exercising public functions, being an authority or other body to which this Act applies, shall be open to the public.”

[27]Nevertheless, this right was not an absolute one. Section 1(8) of the 1960 Act provided:

"The provisions of this section shall be without prejudice to any power of exclusion to suppress or prevent disorderly conduct or other misbehaviour at a meeting."

[28]Section 1(8) of the 1960 Act has now been superseded by section 100A of the Local Government Act 1972 with respect to local authority meetings but the operative wording remains materially unchanged:

“This section is without prejudice to any power of exclusion to suppress or prevent disorderly conduct or other misbehaviour at a meeting.”

[29]Neither section 100A of the 1972 Act nor section 1(8) of the 1960 Act purported to create a power of exclusion which had not previously existed. Each had been drafted on the assumption that such a power had been available under the common law. However, since the common law had equipped councils to exclude anyone they liked from their meetings, and for whatever reason, the task of defining the parameters of a narrower residual power of exclusion to suppress or prevent disorderly conduct or other misbehaviour was necessarily to be based on relatively limited authority relating mostly to circumstances in which attendees originally entitled to be present at meetings had thereafter been expelled for disruptive behaviour.

[30]In Doyle v. Falconer (1866) L.R. 1 P.C. 328, the Privy Council was concerned with the issue as to whether or not a colonial legislative house had power to punish one of its members for contempt. No such power was held to exist but its absence did not preclude the lawful expulsion of any disorderly member from the house. As Sir James Colvile observed: “If the good sense and conduct of the members of colonial legislatures prove, as in the present case, insufficient to secure order and decency of debate, the law would sanction the use of that degree of force which might be necessary to remove the person offending from the place of meeting, and to keep him excluded. The same rule would apply, a fortiori, to obstructions caused by any person not a member and whenever the violation of order amounts to a breach of the peace, or other legal offence, recourse may be had to the ordinary tribunals."

[31]Lucas v. Mason (1875) L.R. 10 Ex. 251 concerned a disturbance which had arisen at a public meeting. The chairman ordered the stewards to bring forward those responsible. They wrongly concluded that the plaintiff was involved and proceeded to drag him over some benches to the front of the gallery as a result of which he suffered personal injury. The plaintiff brought a claim against the chairman for damages. The central issue was whether or not the chairman was vicariously liable for the acts of the stewards but the facts of the case provided an opportunity for some consideration of the extent of the power (or indeed, duty) to maintain discipline at public meetings. Pollock B. held at p. 254:

"It is no doubt the duty of the chairman of a meeting, where a large body of people are gathered together, to do his best to preserve order, and it is equally the duty of those who are acting as stewards or managers to assist him in so doing, but the nature and extent of this duty on both sides cannot be very closely defined a priori, and must necessarily arise out of, and in character and extent depend upon, the events and emergencies which may from time to time arise."

[32]These cases, although relevant to the task of defining the scope of the common law power of exclusion, suffer from two serious and obvious drawbacks. Firstly, the observations made on the scope of the common law power of exclusion are both obiter and thus provide little more than forensic contextual assumptions (albeit of high authority) upon which the points actually in dispute were resolved. Secondly, they were decided in an era in which the prevailing judicial approach to conflicting rights was arguably significantly different to that which now pertains nearly 150 years later.

[33]Nevertheless, these two cases formed the basis of the decision in the more recent decision of R v Brent HA Ex p. Francis [1985] Q.B. 869. In that case, the Health Authority had convened meetings to debate cuts in its budget each of which had been interrupted by serious disturbances caused by members of the public who had exercised their right to attend under the 1960 Act. Eventually, the Authority passed a resolution that the next meeting would be held in private. A member of the public then sought to challenge this decision by way of judicial review. Having considered the cases of Doyle and Lucas, Forbes J. concluded:

“The purpose of giving the public the right to attend meetings is so that they can inform themselves of what is going on. They are not given the right to disrupt meetings and, of course, the right is not a right to participate in anything that is going on, but merely to observe and hear what is going on. It is since 1960 that the all too prevalent habit has grown up of political opponents of one kind or another getting their supporters to descend on public meetings to disrupt them by rowdy and noisy behaviour, and shouting down all the arguments which the opponents do not wish to hear. I have come to the conclusion that there simply must exist such a common law power. If this statutory body has a duty to perform, it must perform its duty. If it becomes apparent that it cannot perform its duty without excluding the public then, it seems to me, there is a general power … to exclude the public…”

[34]One authority to which the court in Brent was not referred was that of Marshall v Tinnelly (1937) 81 S.J. 902. That case involved a meeting of the committee of the Feltham Urban District Council of which the respondent was a member. During the course of the meeting, he made frequent interruptions whereupon he was suspended from the committee by unanimous motion. When called upon by the chairman to leave the chamber he refused. Three members, including the chairman, then proceeded physically to eject him. The respondent alleged that this amounted to an assault and, indeed, those who had evicted him were subsequently found guilty of assault by the justices. However, on appeal by way of case stated Lord Hewart C.J., with whom the other members of the court agreed, held that the respondent’s refusal to leave meant that he was thereafter a mere trespasser and that his subsequent removal was as gentle as the circumstances permitted and thus lawful.

[35]Passing reference may also be made to the case of Re British Union for the Abolition of Vivisection

[1995] 2 BCLC 1

in which the court was persuaded to exercise its powers under section 371 of the Companies Act 1985 to convene an extraordinary general meeting at which only 13 of the 9,000 or so members would be entitled to attend. The remainder were to be entitled to vote by postal ballot alone. The motivation behind this successful application was to avoid a recurrence of serious problems which had arisen at an earlier extraordinary general meeting which had degenerated into a disorderly tumult in which the police had had to intervene for fear of a breach of the peace. The court made this direction despite the fact that a postal vote was entirely foreign to the voting provisions of the existing constitution and that members would be precluded from hearing oral debate.

[36]The cases of Brent and those preceding it undoubtedly confirm the existence of a common law “power of exclusion” falling with the scope of section 100(A) of the 1972 Act. Indeed, the sub-section would be rendered nugatory had such a power not existed. However, in order to resolve the dispute arising in this case it is necessary to go further and analyse in more detail the nature and extent of the power in question.

[37]Much emphasis has been placed in argument before me upon the issue as to whether the double doors giving access from the third floor corridor to the landing marked a point beyond which the use of force by police officers was no longer permissible. I have reached the conclusion that, in the context of the residual power to exclude, the doors in this case have no particular significance and that the common law power is not limited to mere physical exclusion of persons from the actual room or chamber in which the relevant meeting is being or is to be held.

[38]Firstly, section 1(8) is concerned with “any power of exclusion” so long as its justifiable purpose is “to suppress or prevent disorderly conduct or other misbehaviour at a meeting”. The power is not expressed to be limited in geographical application to the room in which the meeting is being held.

[39]Secondly, cases may well arise in practice in which exercising an effective power of exclusion can only be achieved, for example, by preventing the relevant protester or protesters from entering or re-entering the whole or part of the building (and not just the room in the building) in which the meeting is being held. The law does not require the disproportionate deployment of constant vigilance, security or deterrent force at the very portals of a meeting room in circumstances in which the legitimate object of transacting business undisturbed can only adequately be achieved by broadening the parameters of physical exclusion to extend to the whole building or land over which the organisers have the necessary possessory rights to found a claim in trespass. I note, in passing, that section 52 of the Courts Act 2003 expressly empowers a court security officer to exclude or remove any person from a court building, or a part of a court building, for the purposes of enabling court business to be carried on without interference or delay, maintaining order or securing the safety of any person in the court building. This section does not, of course, apply to the circumstances of this case but provides a useful parallel.

[40]I have stressed the concept of trespass. It formed the common law basis for the legitimacy of the acts of exclusion in the cases of both Tenby and Marshall. Section 1(8) of the 1972 Act precludes a council from exercising what would otherwise have been its virtually untrammelled right at common law to refuse or revoke a licence to be on its premises even where the consequence would be to exclude members of the public from its meetings. Where, however, the purpose of exclusion is to suppress or prevent disorderly conduct or other misbehaviour at a meeting, the law relating to trespass may properly be invoked. Issues may arise in other cases as to the extent to which the common law power may be exercised independently of the law relating to trespass where, for example, the organisers of a meeting do not have the requisite possession of the land from which it would be necessary to exclude those intent upon disruption. However, there is no issue in this case that the Council was in possession of the Civic Centre as a whole and the scope of the common law power of exclusion, where it cannot be exercised parasitically upon the remedies available under the law relating to trespass, does not here fall to be considered.

[41]The claimants contend that they had a right to remain in the public area beyond the double doors leading to the canteen corridor.

[42]In practice, there were always parts of the Civic Centre to which members of the public were afforded access during normal hours as a matter of course. Indeed, it had always been intended on the evening in question that people would be permitted to enter the foyer and to make their way up to the public gallery via the main staircase. This state of affairs did not, however, confer upon protesters an irrevocable right to remain within the building thereafter regardless of the occurrence of disorderly conduct or other misbehaviour threatening to disrupt the meeting.

[43]In CIN Properties Ltd v Rawlins and others [1995] 39 EG 148, the appellant operated a shopping centre in Wellingboroughwhich the general public were generally encouraged to visit. The respondents, however, were not welcome because they went to the mall not to shop but to collect signatures in support of their campaign to preserve a local playing field from development. The respondents alleged that the operators of the shopping centre had no right to exclude them.

[44]The Court of Appeal rejected the respondents’ contention that the centre was a quasi-public space in respect of which the rights of the occupiers to exclude them were thereby limited. This decision survived an appeal to the European Court of Human Rights, Appleby v United Kingdom (2003) 37 E.H.R.R. 783, in which the court held:

“46 The Court would observe that, though the cases from the United States in particular illustrate an interesting trend in accommodating freedom of expression to privately owned property open to the public, the US Supreme Court has refrained from holding that there is a federal constitutional right of free speech in a privately owned shopping mall. Authorities from the individual states show a variety of approaches to the public and private law issues that have arisen in widely differing factual situations. It cannot be said that there is as yet any emerging consensus that could assist the Court in its examination in this case concerning Art.10 of the Convention. 47 That provision, notwithstanding the acknowledged importance of freedom of expression, does not bestow any freedom of forum for the exercise of that right. While it is true that demographic, social, economic and technological developments are changing the ways in which people move around and come into contact with each other, the Court is not persuaded that this requires the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property (Government offices and ministries, for instance). Where however the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation could arise for the State to protect the enjoyment of Convention rights by regulating property rights. The corporate town, where the entire municipality was controlled by a private body, might be an example.”

[45]In Porter v The Commissioner of Police for the Metropolis (unreported, 20 October 1999 CA), the claimant, provoked by the failure of an electrician to attend her new flat to connect the electricity supply on a pre-arranged date, went to the showroom of the electricity supplier, the London Electricity Board (LEB), to remonstrate with the staff. She thereafter refused to leave until her grievances had been settled on her terms. After security officers had unsuccessfully tried to persuade her to go, the deputy manager asked the police to remove her from the premises. They too tried to persuade her to leave before physically ejecting her from the premises.

[46]The plaintiff thereafter claimed damages asserting that she had a right to remain on the premises because she had never become a trespasser. The showroom was open to customers to facilitate the performance by the LEB of its statutory duty as a public supplier of electricity. It followed from this obligation that the LEB could not, at will, revoke the plaintiff's licence to enter and remain in the showroom and accordingly could not eject or arrange for her ejection unless she was acting unreasonably.

[47]Judge L.J. rejected the idea that any limits upon the right of the occupier (however defined) could apply to the circumstances of that case. He left open the issue as to whether this area of the law is susceptible to significant modification by incremental development of the common law or whether the relevant principles are now so well established that legislation would be required for the purpose.

[48]I respectfully adopt the same approach to the circumstances of this case. Whatever future developments (if any) may occur in respect of the law relating to rights of access to “quasi-public” spaces I am entirely satisfied that they would not be such as to prevent a council from exercising its powers as the lawful occupier of property to exclude members of the public for the proper purpose of maintaining order at public meetings.

[49]I am further satisfied that it would not be necessary for a council in the exercise of its common law power preserved by section 100(A) of the 1972 Act to restrict exclusion only to those who themselves had actually been guilty of or who threatened disorderly conduct or other similar misbehaviour. If a council has power, as in the case of Brent, pre-emptively to deny access generally to all members of the public to its premises before disorder has arisen then a fortiori it is entitled to do in appropriate cases after disorder has already broken out.

[50]In Porter Judge L.J. found that, when the plaintiff persisted in her refusal to leave voluntarily, the police were ultimately entitled to lay hands on her and physically remove her from the showroom against her wishes.

[51]May L.J. held at page 17:

“Conventional law says that a proprietor of premises is entitled to use reasonable force to eject a trespasser. He is entitled to use self-help to achieve this. He may ask one or more individuals to help. Forcible ejection will, of course, be unlawful if the person ejected is not a trespasser or if the amount of force used is excessive. If, in the course of being ejected, the trespasser is violent, there may be a breach of the peace justifying the trespasser’s arrest.”

[52]In Porter it was bravely argued on behalf of the plaintiff that even if an occupier has a right to use force to eject trespassers from his premises thisright cannot be exercised on his behalf by the police. May L.J. rejected this argument in the following terms at page 23:

“The second ground of appeal is that the judge was wrong to hold that the police officers were lawfully entitled to act as agents of the LEB in using physical force to eject the appellant. Mr Blaxland accepts that individuals who are not police officers can, at the invitation of a proprietor, lawfully help the proprietor, using reasonable force, to eject a trespasser. But he submits that public policy should mean that police officers should not be lawfully able to do so. He submits that the public policy should be that police officers should not interfere with the liberty of the subject other than as part of their police powers. The police would be in an invidious position, if they are to take sides in a private dispute. I have no hesitation in rejecting this submission…In principle, I think that there is every reason why the law should encourage those who are lawfully entitled to eject trespassers to ask the police to help them to do so. The dangers of individual self-help are obvious and it is far preferable for people to receive help from trained police officers than to look to friends, neighbours or passers by. In addition, since forcible ejection is inherently likely to lead to violent resistance, the police would be at hand to prevent or restrain violence in accordance with the law.”

[53]From these authorities and upon the application of basic principles, the following propositions may be derived: i) Those running a public meeting, including local authorities, have a common law power (or perhaps duty in certain circumstances) to exclude attendees whose disorderly conduct or other misbehaviour disrupts or threatens to disrupt the business of the meeting. ii) This power extends to the exclusion of all members of the general public in those cases where the attendance of the public as a whole is liable to give rise to disorderly conduct or other misbehaviour which would disrupt or threatens to disrupt the business of the meeting. iii) The power to exclude, particularly where it is directed at all or most members of the public, will and must be exercised particularly sparingly and only in the absence of a reasonably viable alternative but, in appropriate cases, can be used either in advance of the meeting (as in Brent) or on the occasion of the meeting itself. iv) The power may be exercised by the deployment of such force (if any) as may be necessary and proportionate to achieve and maintain the exclusion of those against whom it is directed. v) It is not necessary that a breach of the peace should have occurred or be imminent to justify laying hands on a trespasser; although in any given case passive resistance may often become active and result in a subsequent breach of the peace. vi) If the police are called upon to assist in the exercise of the common law power they are acting lawfully in the use of force so long as such force is necessary and not excessive.

[54]In this case, I am in no doubt that the events of the evening were such as to entitle the Council to exercise its power to exclude all of the protesters from the Civic Centre. The following features are of particular importance: i) The extent of the disruption was very serious. The physical occupation of the council chamber was achieved by the use of brute force deployed against uniformed police officers. ii) So long as this occupation continued, it effectively prevented all legitimate council business from being carried out there. iii) The Leader of the Council gave those occupying the chamber the opportunity to leave and to allow the meeting to commence under the threat that if they did not do so the meeting could be held in private. She was shouted down and the occupation continued. iv) There was a real and constant risk that determined protesters would attempt to frustrate the orderly conduct of business wherever in the building the council tried to meet, as was exemplified by the subsequent incursion into the canteen corridor. v) The disorderly conduct had been proceeding for at least 45 minutes before action was taken to exclude the protesters from the building.

[55]In the circumstances of this case, the Council was entitled to conclude that no steps short of physically excluding all members of the public from the Civic Centre would be adequate to ensure that the meeting would not be disrupted by disorderly behaviour.

[56]The police had been invited to the Civic Centre by the Council for the specific purpose of facilitating the maintenance of order to enable the meeting to take place. Implicit in this invitation was the authority given to the police to exercise such common law or statutory powers as were necessary and proportionate to achieve this purpose. Furthermore, for as long as the meeting was not intended to be heard in public, the protesters had no remaining legitimate reason to remain in the Civic Centre. Their status had become jurisprudentially equivalent to that of Mrs Porter in her last stand in the electricity showroom.

[57]Moreover, I am satisfied that it was not necessary that any given officer should have had specifically in mind the common law power to suppress or prevent disorderly conduct or other misbehaviour at a meeting in order to legitimise the use of proportionate force to achieve the object of allowing the meeting to proceed.

[58]In R (on the application of Rutherford) v Independent Police Complaints Commission

[2010] EWHC 2881 (Admin)

, Ouseley J. held at para. 18:

"Accordingly, at the time at which the police officers acted as they did, with the belief they had, the police officers were empowered to act as they did. The power existed and they were justified in using it. There is no requirement at common law for them to be aware of the legal origin of the power they were exercising in order for the exercise of the power to be lawful. A legally accurate identification of the precise legal power under which a police officer acts is not, in the absence of specific provision to that effect, a requirement of its lawful exercise. There is no requirement to call the statutory provision or the correct section or subsection to mind at the moment a police officer exercises any power of stop, arrest or search in order for its exercise to be lawful. An act is not unlawful because a police officer does not ask himself or forgets which power he had, provided that he had the power to do what he did with the knowledge and belief which he had. No authority exists for Mr Thomas' proposition that knowledge of the legal origin of the power being used at the time it is used is necessary for its lawful exercise. I am not surprised that no authority exists; the proposition is untenable."

[59]I respectfully agree. Inspector Wakeford responded to the situation on the basis that he was dealing with a breach of the peace but, on the basis of my analysis of the law relating to exclusion and trespass, there did not have to be a breach of the peace before reasonable force could be applied.

[60]It follows that I am satisfied that the local and TSG officers were entitled to use such force (if any) as was reasonably required to achieve the object of ending the continuing threat to the proper transaction of business at the council meeting by treating the protesters as trespassers. In the circumstances of this case it was, for the reasons I have given, proportionate and necessary to exclude the protesters not only from the third floor corridor but from the building as a whole. There was some confusion in the evidence as to what individual officers may have understood their instructions to have been and, in particular, whether the protesters were simply to be removed from the corridor, down to the foyer or from the building. However, whatever any officer might have intended at time of the initial contact with the protesters in the corridor I am satisfied that the decision to move them down the stairs and then out of the building was a lawful one and proportionate to the legitimate goal of allowing the Council meeting to proceed. There was no viable alternative.

[61]In the light of my findings on the issue of civil trespass, I do not consider that it is necessary to adjudicate on the alternative suggestion advanced on behalf of the defendant that the protesters were guilty of the offence of aggravated trespass contrary to section 68(1) of the Criminal Justice and Public Order Act 1994.

[62]Additionally, Mr Thomas on behalf of the defendant has drawn my attention to the Public Meeting Act 1908 section 1 of which provides:

“Penalty on endeavour to break up public meeting. Any person who at a lawful public meeting acts in a disorderly manner for the purpose of preventing the transaction of the business for which the meeting was called together shall be guilty of an offence…”

[63]However, this provision provides relatively little assistance to this court in identifying the proper scope of the common law power to exclude protesters from public meetings. I make the following observations: i) The common law power had been recognised long before the creation of the criminal offence. The latter is thus not the jurisprudential parent of the former. ii) The exercise of the common law power, in contrast to the operation of the statute, does not depend on proof of the intention of the perpetrator or perpetrators to prevent the transaction of the business for which the meeting was called. On the contrary, it is the consequences and potential consequences of their actions objectively judged which are important in the common law context and no evidence of any particular intention is required before exclusion can be justified. iii) The effect of the lawful pre-emptive exclusion of all members of the public in Brent was inevitably to exclude even those who would have not have acted in a disorderly manner in any event and who would thus not have fallen within the parameters of the 1908 Act.

[64]What can be said about the 1908 Act, however, is that, by categorising certain efforts to break up public meetings as being sufficiently injurious to the public interest as to amount to a crime (and, moreover, one in respect of which a sentence of imprisonment can be imposed) it emphasises the need to ensure that the proper conduct of lawful meetings is not to be frustrated by deliberate disruptive conduct. In case it might be thought that the contextin which Parliament was legislatingin 1908 may not reflect a balance of priorities appropriate to the twenty first century, reference can be made to later similarly worded statutes including, most recently, paragraph 7 of Schedule 13 to the Scottish Independence Referendum Act 2013 which created an offence in almost identical terms applicable to meetings held in connection with the referendum concerning Scottish independence. Preventing the meetings of lawfully elected representatives by disruptive conduct is not democracy. It is anarchy.

BREACH OF THE PEACE – THE LAW

[65]However, in case I am wrong about the application or scope of the common law power of exclusion to suppress or prevent disorderly conduct or other misbehaviour at a meeting, I now turn to the next basis upon which the use of force on the stairs is said by the defendant to be justified. The defendant contends that the officers were entitled to act as they did in response to an ongoing or imminent breach of the peace. The claimants deny that, at the material time, there was either.

[66]In R(Laporte) v Chief Constable of Gloucestershire

[2007] 2 AC 105

Lord Bingham held:

“27. The legal concept of a breach of the peace, although much used, was for many years understood as a term of broad but somewhat indeterminate meaning. In R v Howell (Errol) [1982] QB 416, the Court of Appeal heard detailed argument on the meaning of the expression, an issue raised by the facts of the case. The court concluded that the essence of the concept was to be found in violence or threatened violence. It ruled, at p 427: We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant.” 28 In Steel v United Kingdom (1998) 28 EHRR 603 , the five applicants had all been arrested for breach of the peace and contended, as one of the grounds of their applications to the authorities in Strasbourg, that breach of the peace was too ill-defined a concept to meet the requirement that the ground of their arrest be “prescribed by law” within the meaning of article 10(2) of the European Convention . This complaint was successfully repelled by the British Government…The accuracy of this definition has been generally accepted, and was not in issue before the House. A breach of the peace is not, as such, a criminal offence, but founds an application to bind over.”

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

[67]In Albert v Lavin

[1982] AC 546

, Lord Diplock observed at 565:

“…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.”

[68]In R(McClure and Moos) v The Commissioner of Police of the Metropolis

[2012] EWCA Civ 12

the Court of Appeal held at para. 36 that :

“(1) For a police officer to take steps lawful at common law to prevent an apprehended breach of the peace, the apprehended breach must be imminent; (2) Imminence is not an inflexible concept but depends on the circumstances; (3) If steps are to be justified, they must be necessary, reasonable and proportionate; (4) Depending on the circumstances, steps which include keeping two or more different groups apart may be necessary, reasonable and proportionate, if a combination of groups is reasonably apprehended to be likely to lead to an imminent breach of the peace; and (5) Again depending on the circumstances, where it is necessary in order to prevent an imminent breach of the peace, action may lawfully be taken which affects people who are not themselves going to be actively involved in the breach.”

THE EVIDENCE RELATING TO BREACH OF THE PEACE

[69]The determination of the issue as to whether there was an ongoing or imminent breach of the peace at the time of the arrival of the TSG has been complicated by a number of factors: i) The events in question unfolded at different times and in different parts of the building often in crowded and confused conditions in which no single witness would be in a position to make a confident assessment of everything or even most of what was going on. ii) Inevitably, to varying degrees, protester witnesses were inclined to interpret events in the way most favourable to their own standpoints and police witnesses were inclined towards justifying their actions retrospectively by overstating the seriousness of the state of affairs at the Civic Centre. iii) Emotions at the time were running high on both sides and objectivity was further impaired as a result. iv) The incident took place about three and a half years before these claims came to court by which time recollections could be expected to have been weakened and rendered more unreliable by the passage of time.

[70]Inevitably, a considerable proportion of the trial was spent in perfectly legitimate cross examination by both sides, the purpose of which was to establish that the protester witnesses and police officers respectively were unreliable and inaccurate in their recollections of the events of the evening.

[71]It is not my intention to rehearse each and every respect in which the evidence of the individual witnesses was either resilient to or undermined by the workings of the adversarial process. To embark on such a task would be disproportionate and would add unnecessarily to an already lengthy judgment. I will, however, summarise the position.

[72]With respect to the protester witnesses I find, by way of example, a number of points of criticism properly to have been made out by the defendant.

[73]The protester witnesses all expressed themselves in their witness statements in a way which was economical with the truth as to the circumstances of their invasion of the corridor. I am satisfied that these statements were in their own words in compliance with CPR 32 PD 18.1. It was clear from the video footage that sustained and heavy physical force was used to overcome the resistance of the officers in the corridor. Yet this was alluded to in their respective witness statements simply as the crowd “moving” or” making its way” down the corridor. Their explanations under cross examination for this omission were generally unsatisfactory. Mr King, one of those who invaded the corridor, asserted that he made no mention of the force used against the police because he did not consider it to be relevant. His daughter, Esther, also present at the time, maintained that she did not regard this at the time to have been an important matter to have been included in her statement. Mr Over, another protester, persisted in saying that when making the statement he did not consider the use of force against the police to have been relevant.

[74]The protester witnesses also demonstrated the strength of their feeling in other ways which were likely to contaminate the level of objectivity they could be expected to bring to bear upon their appraisal of the situation. Mr King considered that the use of force and passive resistance was entirely justified and his comments to a passer by outside the building after the incident reveal a level of pride in having, he thought, stopped the meeting. I do not doubt the genuineness of the convictions and strength of feeling of Mr King or any of the other protesters but I am unable to escape the conclusion that the very fervour of their beliefs seriously undermined the chances of their forming an impartial view as to the seriousness of the situation which had developed in the Civic Centre.

[75]On the other hand, the police witnesses were, in some cases, overplaying the seriousness of the incident at least as strenuously as the protesters were underplaying it.

[76]With respect to the evidence of the local officers, and in particular, PC Bloomfield and Acting Police Sergeant Kneebone, the accounts which they gave in their witness statements were considerably more detailed in some respects than those which they had given earlier under section 9 of the Criminal Justice Act 1967. Much of this detail went to the seriousness of the events upon which the breach of the peace issue fell to be determined. There is force in the claimants’ contention that it is surprising that such detail, if accurate, was not incorporated in the earlier statements made when matters were bound to have been fresher in the officers’ minds. As with the protester witnesses, I do not find that there is any element of deliberate dishonesty revealed by the content of the witness statements in this regard. Nevertheless, I am satisfied that that I must treat the additional detail with come caution.

[77]The criticisms levelled against the TSG officers are more serious.

[78]I am satisfied that, after the event, efforts were made to ensure that the TSG officers produced in their notes of the incident a consistently gloomy picture of the situation which they had earlier faced at the Civic Centre. It is not disputed that it is entirely appropriate for officers, in general, to confer in making their notes in order to preserve, at the very least, a coherent chronology of events. Nevertheless, each officer must record his or her own individual recollection rather than follow a “party line”. There are respects in which I have concluded that officers allowed their individual accounts to be contaminated either by information received from Inspector Wakeford or others thereby distorting their own recollections.

[79]Firstly, the TSG officers all recorded after the event that they had responded to an urgent assistance call from officers inside the Civic Centre. However, all calls are intended to be recorded on a computerised system known as CAD. The operator of the system on the evening in question recorded no request for urgent assistance. He or she recorded two requests for assistance from the two officers in the corridor but neither was labelled as urgent. No officer was called to give evidence that it was he or she who made the urgent call and no audio recordings have been produced. I conclude that there was no urgent call but that Inspector Wakeford inaccurately referred to an urgent call as the officers were conferring in making their notes and that the power of suggestion was such that unreliable hearsay was all too swiftly and undeservedly promoted to the status of direct personal recollection.

[80]Secondly, in their notebook accounts, seven of the TSG officers described themselves as running into the building and through the reception area. The CCTV evidence reveals that their progress was generally somewhat slower than this. By the time the officers came to make their witness statements, they had seen the CCTV footage and their accounts of the speed with which they entered and proceeded through the Civic Centre were trimmed accordingly.

[81]Thirdly, many of the officers recalled seeing significant numbers of protesters active outside the Civic Centre at the time of their arrival. No such activity is to be seen in the clear view provided by the CCTV footage at the material time.

[82]Fourthly, six of the TSG officers recorded that the fire alarm was still sounding and this was adding to the confusion as they were escorting the protesters down the stairs from the third floor landing. Again this is contradicted by the film footage which reveals that the alarm had stopped sounding some considerable time earlier at a time when the TSG officers were going through the foyer and before they had even reached the corridor.

[83]Fifthly, I am satisfied that the descriptions given by many of the TSG officers of the level of resistance and aggression shown by the protesters are overstated. I accept that the film footage would only record a proportion of what was occurring but it would be too much of a coincidence if, by chance alone, none of the more extreme examples of obstructive, aggressive and violent behaviour relied upon had been captured.

CONCLUSION ON BREACH OF THE PEACE

[84]I have been able to deal with my assessment of the reliability of the cloud of witnesses in this case in relatively brief form because I am satisfied that I can place greater and somewhat firmer reliance on the film footage and still photographs in assisting me in the task of determining whether a breach of the peace was occurring or was imminent at the time of the arrival and subsequent involvement of the TSG officers.

[85]I am in no doubt that a breach of the peace occurred when some of the protesters forced their way into the Council Chamber. It matters not that no intentional blows may have been struck. The deliberate, sustained and forceful surge against the local officers was likely to cause harm to the officers and protesters alike. The strength of the push was sufficient to cause the glass in the door to fracture and, at the very least, the more diminutive local officers in particular were bound to have been put in reasonable fear for their personal safety. I accept that it would be generally accurate to conclude, at least for the most part, that the protesters regarded the police more as obstacles than targets. But harm is harm, whether inflicted intentionally or by way of purely collateral damage.

[86]I am equally satisfied that there was a breach of the peace when the group of fifteen or so protesters forced their way into the corridor against the sustained but futile resistance of the two officers whose duty it was to exclude them. The fact that harm was likely to be done can be concluded from the following factors: i) The protesters were in a state of high emotion generated by their implacable hostility to what they regarded to be an imminent act of treachery on the part of the Council. ii) The number of protesters was quite sufficient to give rise to the real risk that mutual psychological reinforcement would lead some of them to act in a way reckless as to the harm that might ensue and which they would not otherwise have contemplated if they had been acting alone or in a less febrile context. iii) The protesters had deliberately breached the doors knowing that they were not permitted in the corridor and they were prepared to use, and did in fact use, physical force against police officers to achieve their aim. This gives a strong indication of their strength of purpose, the power of which was likely to blunt any sense of danger or awareness that their actions were likely to cause harm. iv) The disorder was occurring in a confined space in which the risk of mischance causing harm was increased. One of the protesters is seen to fall in the mêlée and could easily have been hurt as a result. It is fortunate that she was not.

[87]By the time the TSG officers came on the scene the situation was under a greater degree of control than it had been just before but I am still satisfied that a breach of the peace was in fact occurring. In the seconds before the TSG officers arrived, the local officers had succeeded in ushering and pushing the protesters out of the canteen and part of the way down the corridor. Nevertheless, the situation remained extremely volatile. The local officers had needed to deploy physical force to remove some of the protesters and although some were now making their own way towards the doors to the corridor others were, at the very least, moving with deliberate slowness as an act of passive resistance. May L.J. observed in Porter:

“Purely passive, limp non-cooperation would not constitute a breach of the peace...”

This, however, was said in the context of a situation in which there had been no earlier threat of harm. It would, in my view, be artificial to apply with specious exactitude a second by second assessment of a rapidly developing situation concluding that, for five seconds here or five seconds there, a breach of the peace was or was not taking place. Further, it is to be noted that at para. 29 of Laporte, Lord Bingham drew a distinction between cases where any breach of the peace (having occurred) is likely to be renewed and cases where no breach has yet occurred but is likely to occur. It may not matter whether this distinction is to be regarded primarily as being jurisprudential or merely evidential. The conclusion to be drawn is that the court is more likely to sanction police intervention in the context of ongoing disorder where a breach of the peace has already broken out once than where, as in Laporte, no such breach had yet taken place.

[88]It must be remembered that a breach of the peace is actually occurring even where no harm has yet taken place so long as harm is likely to be done to a person. There is, therefore, an element of pre-emptive risk assessment involved in the application of the test as to whether or not a breach of the peace is actually occurring even before one comes, if necessary, to consider the issue as to whether such a breach, if not occurring, is imminent.

[89]In this case the seriousness of the rapidly developing situation in the corridor and canteen had not been significantly or conclusively abated by the brief progress which had subsequently been made by the local officers in expelling the protesters part of the way down the corridor to the doors. There remained a likelihood of harm. A breach of the peace was still, in my view, in progress and it was reasonable for Inspector Wakeford and the other officers to reach this conclusion when they arrived.

[90]Even if I were wrong in this assessment, I am satisfied that there were reasonable grounds for the police officers to anticipate either a recurrence of a breach of the peace or, if no breach had yet occurred, an imminent risk of a breach of the peace. I remind myself that the court’s function is not to form its own view as to imminence but to decide whether or not Inspector Wakeford, in the light of what he knew and perceived at the time, was reasonable in his fear of an imminent breach of the peace.

[91]Despite the legitimate criticisms which have been levelled at the way in which TSG officers later embellished their accounts to make the situation at the Civic Centre seem more serious then it really was, I remain satisfied that, even after the patina of exaggeration has been scoured off, there yet remains ample evidence of an ongoing or imminent occurrence or recurrence of a breach of the peace.

THE POSITION OF THE CLAIMANTS

[92]In my view the claimants were both acting in a disruptive manner which was directly threatening the viability of the Council meeting. They were participating in a breach of the peace in the corridor leading to the canteen or, alternatively, were involved in an imminent threat of a breach of the peace. Thus I find that neither can complain that force, per se, was deployed against them for the purpose of allowing the meeting to go ahead without disruption and to bring to an end the breach of the peace or the possibility of an occurrence or recurrence thereof. Any such force, however, would have to have been reasonable and proportionate.

[93]The police, as I have found, were acting lawfully in expelling the protesters not only from the corridor but also down the stairs and ultimately out of the building and in using reasonable force to achieve this. This finding, however, leaves open the question as to whether the force actually used against the claimants was reasonable.

REASONABLE FORCE – MS LAPORTE

[94]My assessment of Ms Laporte was that she was essentially an honest witness but one who struggled not to see things through the distorting lens of her own firm convictions. I am also satisfied that it is likely that, with the passage of time, her interpretation and recollection of events has hardened and become more entrenched in her own favour and that of the protesters in general.

[95]The basis for my finding that some caution must be exercised in accepting the accuracy and objectivity of Ms Laporte’s evidence takes into account the points made by the defendant in his written closing submissions but, in particular: i) She betrayed an undue scepticism of the motives of the police and the Council members which was not supported by the evidence. For example, she dismissed the efforts of Claire Kober to persuade the protesters to allow the meeting to go ahead as half-hearted. Having seen the film footage, I am bound to disagree. It is difficult to see what more Ms Kober could reasonably have done. ii) She understated her own role in the incursion into the canteen corridor saying in her witness statement that:

“It took me by surprise and very quickly I was pushed from behind up against an officer. The crowd then made its way down the corridor.”

The film footage shows her to have been at the front of the protesters at this point and reveals a concerted and determined use of force by the protesters against the police officers. I am satisfied that she has attempted to minimise her involvement in the invasion of the corridor and her inconsistent explanations of her conduct and state of mind at the time are attempts to rationalise her behaviour after the event. This is conduct which, if she had been able to maintain a more objective perspective, she may well subsequently have regretted. For example, her speculation that she thought that the police officers might have willingly let them through was implausibly optimistic and, at best, reveals an element of self-delusion. iii) I was unpersuaded that Ms Laporte’s overriding state of mind was one of anxiety and fear for her safety as she was going down the stairs. Her pleaded case was that she did as she was instructed and moved down the stairs trying to do so carefully to avoid falling. It became clear in the course of cross-examination, however, that Ms Laporte resented that fact that the police were expelling the protesters and she was deliberately going slower than her natural pace in order to lay down a marker. If she had been seriously concerned about the risk of injury she would not have increased the danger by acting in a way which was calculated to encourage the police to continue to push her forwards. iv) The level of Ms Laporte’s emotional response to the police action is revealed by the film footage showing her shouting at a police officer on the third floor landing:

“What the fuck are you doing?”

This, together with her demeanour at the time, reveals that her state of mind was not likely to be conducive to a cool and rational appraisal of how her actions were liable to be interpreted by the police officers on the stairs.

[96]It is also to be noted that she gave a no comment interview after caution and her first recorded account was that set out in her letter of claim of 19 June 2012. Thus there was plenty of time over which her memory of events was liable to degenerate into more of an ex post facto rationalisation of her conduct than an accurate recollection.

[97]It is clear from the concessions she made in cross examination that, as she was going down the stairs, Ms Laporte was deliberately pressing at the boundaries of conduct which might lead to her arrest. She wanted to make her point by going intentionally slowly but without being seen to be so obstructive as to precipitate her arrest. In the end, this risky balance was one which she failed to maintain.

[98]Before I turn to analyse the sequence of events on the stairs which was to lead to the arrest of Ms Laporte I must emphasise that it occurred over the course of a very short time indeed. With depressing predictability, the film footage and still photos do not capture the central moments so I have to rely primarily upon the accounts of eye witnesses. The accounts of these witnesses are, in many cases, coloured by the attitudinal perspective from which their authors viewed the incidents, irreconcilably inconsistent with the accounts of other witnesses, inconsistent with their own earlier accounts and impaired by the passage of time. The result is a Gordian knot of evidential complexity.

[99]Ms Laporte was engaging in what she believed to have been a justifiable degree of passive resistance by deliberately going slowly. The police officers, on the other hand, believed that they were entitled to use reasonable force to remove her and the other protesters at a proportionate speed. Inevitably, therefore, Ms Laporte would be likely to resent the pushes she received as being an unacceptable intrusion on her liberty and the officers would, equally readily, conclude that she was acting improperly and unlawfully in deliberately obstructing them. Against this background it is not surprising that Ms Laporte presents the fact that she used the handrails as a sign that she was supporting herself for safety’s sake and equally unsurprising that the police interpreted it as a means by which she would anchor herself momentarily to resist attempts to move her down the stairs at a reasonable pace. Similarly, the police case was that Ms Laporte was deliberately holding onto other protesters not for the sake of her own safety but to hamper her progress down the stairs.

[100]I do not consider it necessary to resolve the issue as to the extent to which the police conclusions on these issues were accurate. Importantly, however, I do not consider that they were unreasonable. Neither were they the fruits of malicious fabrication. The point of central importance is that Ms Laporte was, albeit to a limited extent, resisting the police officers and that mutual hostility was bound to colour their respective interpretations of their actions and, with the passage of time, the recollections of those who witnessed what happened were also contaminated in varying degrees by the polarisation of their sympathies.

[101]In summary, Ms Laporte’s case is that she was making her slow progress down the stairs over the course of which she had been repeatedly pushed by PC Ball, when she was grabbed painfully by one PC Thomas who pulled her left arm behind her back and forced her down the stairs to the next landing where she was taken to the floor and later handcuffed. In contrast, PC Ball says that Ms Laporte swung her fist at her and, as she ducked out of the way, it made light contact with her met vest.

[102]It is significant, in this regard, that Ms Laporte concedes, to her credit, that there was a moment on the stairs when she turned around to face PC Ball who was behind her. She says that she gestured at her to stop pushing by holding out her hand palm open and she made contact with the officer’s met vest. PC Ball, in contrast, stated that she was the victim of a deliberate assault.

[103]I am satisfied that the incident described by Ms Laporte is the same one which led to her arrest. Ms Laporte contended that there was a delay between her contact with PC Ball and the intervention of PC Thomas during which period she had proceeded down the rest of the top flight of stairs, into and out of the public gallery and most of the way down the next flight of stairs. I consider that she is wrong about this. There is a photograph of Ms Laporte which indisputably shows her being restrained on the second floor landing. For this to be consistent with Ms Laporte’s account, she would have to have been taken back up the stairs by the officers from the point at which she was first detained yet nowhere in her witness statement does she contend that she was moved in any direction but downwards. Furthermore the location of the incident is consistent with the account of another protester, Esther King, who would not have had any motive to undermine Ms Laporte’s version of events.

[104]It follows that I am satisfied that Ms Laporte was mistaken in her recollection that, shortly before her detention, she had attempted to access the public gallery which was located downstairs from the position depicted in the photograph to which I have referred. She has some support from the evidence of PC Downing on this issue but he accepted that he could have been mixed up.

[105]It is also said on behalf of the claimant that, with the exception of PC M’Baye, other officers at the top of the stairs did not see any confrontation between Ms Laporte and PC Ball. I have to bear in mind, however, that this was a developing and confused situation and I find it perfectly possible that the attention of the officers was not focussed specifically on the point at which the incident took place at the relevant time.

[106]In the circumstances of this incident I can readily understand that PC Ball could reasonably have interpreted the actions of Ms Laporte to be a deliberate assault even if Ms Laporte’s intention had merely been to make a gesture of resistance. The claimants rely upon a number of inconsistencies in the accounts of PC Thomas and PC Ball relating to their descriptions of the circumstances of PC Thomas’ intervention. These inconsistencies relate, for example, as to whether Ms Laporte was holding on to the handrail, whether and how she may subsequently have spun round and PC Thomas’ position on the stairs or the landing at the material time. For the most part, I am satisfied that such inconsistencies are readily attributable to the passage of time and the tendency of the memory innocently but inaccurately to reconstruct events particularly those which occur in confused circumstances and over a very short period. There are, however, some particular points which merit more detailed consideration.

[107]Firstly, although PC Ball has an unblemished record, the behaviour of PC Thomas had earlier been the subject of a complaint by one Mr Tallis arising out of a completely separate incident which occurred in Parliament Square in May 2009. Footage of the incident in question was admitted in evidence. It shows PC Thomas administering a knee strike to Mr Tallis. PC Thomas explained his actions as being in response to Mr Tallis struggling to prevent him from applying a conventional police hold. I am unable, on the limited evidence available, to conclude that PC Thomas’ response was deliberately disproportionate but he is in my view properly to be criticised for failing subsequently to record the fact that he perpetrated a knee strike in his later note of the incident. I find that PC Thomas knew that he should have made a note but considered that life would be easier for him if he omitted to do so. I do not infer from this, however, that he was thereby attempting to cover up the use of force which he well knew to be excessive. I must therefore bear in mind that PC Thomas has, in the past, shown himself capable, for the sake of expediency, of deploying a level of economy with the truth. This does not mean, however, that he is, therefore, liable to resort to wholesale fabrication to cover up a deliberate and violent abuse of power. Accordingly, I exercise the requisite degree of caution when assessing his evidence but I do not find that the strength of the evidence relating to Mr Tallis’ complaint requires me, without more, to dismiss it as being inevitably mendacious.

[108]Secondly, a transcript of the booking procedure at the police station purports to record that PC Ball reported that Ms Laporte went to punch her in the face but “quite literally caught (inaudible) eyelash so I stood back…” The custody record stated:

“subject restrained to leave and resisted, swung at officer catching her gface (sic) lightly.”

[109]I have to admit that I had the utmost difficulty in hearing the words recorded on the tape of the booking procedure many of which were virtually obliterated by the background noise. But assuming, as I must, that the words on the transcript in so far as they were thought to be audible are accurate, I am not satisfied that they undermine the credibility of PC Ball on this issue. I take into account the fact that when she wrote her notes of the incident within two hours, she specifically referred to the point of impact as her chest. I also note that she has always said that the intended destination of the blow was her face which may have generated some confusion in the retelling. Moreover, it is difficult to discern a plausible motive for PC Ball to record in her notes that the blow fell on her chest if it had been on her face thereby, if anything, reducing rather than embellishing the seriousness of the allegation. Finally, the description of contact between Ms Laporte’s hand and PC Ball’s vest is also more consistent with Ms Laporte’s account. I conclude, therefore, that the imperfectly recorded conversation at the police station during the booking procedure is not such as to lead me seriously to doubt PC Ball’s credibility on the fact of and location of the contact.

[110]Thirdly, PC Ball’s notes include a curious footnote which reads:

“Laporte tried without my awareness … to take a swing at me.”

This was in addition to the blow which she said had connected. She explained this entry in evidence on the basis that it was PC Thomas who had told her about this attempt when they were sitting opposite each other when writing their accounts in their notebooks. The claimants rely upon this entry as evidence of deliberate and improper collusion. Although, I take the view that PC Ball should not have recorded in her note book matters of which she had no direct knowledge unless this had been made crystal clear, the fact that she specifically qualifies her entry with the words “without my awareness” leads me to believe that this was not an attempt after the event to exaggerate the details of her account. Had this been her intention, the obvious course for her would have been to pretend that the recollection was from her own observations but she did not.

[111]On Ms Laporte’s account, PC Thomas and PC Ball used excessive force against her on the stairs. PC Thomas grabbed her left upper arm and forced it behind her forcing her forwards and down the stairs. It was painful and she was not sure of her balance. She was scared that he might break her arm and complained but he said that the more she complained the more he would do it. PC Ball grabbed her right arm and she was told to get on the floor. She said she felt the weight of a foot upon her rucksack and her upper arm before she was handcuffed and she complained that the handcuffs were painful and that the rucksack was making it worse. Only eventually was the rucksack removed but the cuffs were thereafter reapplied. Subsequently she was held against the wall and told that she had been arrested for assaulting a police officer. Later, on her account, still in agony from the handcuffs, she and Mr Christian were led out of the back of the Civic Centre where press photographers took pictures of them.

[112]Notwithstanding this account, I am not satisfied that Ms Laporte was treated with excessive force. I draw attention to the following factors: i) Her recollection and interpretation of events was coloured by her anger and resentment at the involvement of the TSG. She believed that they had no right to expel the protesters and her restraint in the witness box can be contrasted with the footage showing her shouting profanity on the third floor landing. ii) She showed a readiness to reach conclusions which cast the darkest light on the motives and actions of police officers where other interpretations were, on a more objective analysis, perfectly plausible. For example, by the use of the adjective “eventually” in describing the process by which her rucksack was removed in her witness statement, the clear impression was given that there was undue delay in the process. However, the evidence as a whole demonstrated no such culpable delay. iii) Her evidence in relation to the amount of force deployed was not compellingly supported by photographic evidence which was produced during the course of the trial relating to marks on the left arm and wrists which was, at best, ambiguously indistinct. iv) She made no formal complaint about her treatment either before or immediately after the criminal proceedings in which she was acquitted. This was done, she said, on the advice of her solicitor but I find her to be an intelligent and strong minded individual who would have been well able to form an independent view of whether to make a formal complaint. v) There was a long delay between the occurrence of the incident and the first account from Ms Laporte concerning what she alleges happened during the course of which it is likely that her recollection would have become more polarised and generally less reliable. vi) People in the vicinity were openly recording what was occurring on mobile phones and on camera. As it happens, the first photograph of the incident was not taken until after Ms Laporte had been taken to the floor but officers acting in an overtly excessive display of force would run the risk that this would have been captured for all the world to see with potentially devastating effects on their careers and the attendant likelihood of criminal proceedings and conviction.

[113]I am also satisfied that Ms Laporte was told that she had been arrested and why at the first practicable moment as the handcuffs were being reapplied. To the extent that Ms Laporte claims that she was not told until later, this is explicable by the fact that she was shouting at the material time whether in protest or for her rucksack to be removed or both.

MR CHRISTIAN

[114]My assessment of the credibility of Mr Christian does not differ markedly from my assessment of Ms Laporte. The reliability of his evidence is undermined by the following factors: i) He was evidently passionate about the justice of his stance and continued to chant loudly after the breach of the peace which led to the occupation of the council chamber. I pass no comment upon whether his conduct, of itself, amounted to a breach of the peace at this stage but merely observe that his continued chanting emphatically demonstrated where his sympathies lay and how strong they were. ii) In common with Ms Laporte, his account in his witness statement of his progress and that of the other protesters down the canteen corridor omits any mention of the sustained use of force against police officers and paints the picture of a gentle and unimpeded promenade. There is some doubt about what, if any part, he played in the physical pushing but he was a direct witness to these events and participated in the common purpose by chanting and making his way with other protesters beyond the second set of doors leading into the canteen area. iii) His accounts of what occurred are not wholly consistent. In his letter of claim he asserted that he had turned back as he was proceeding along the corridor and he noticed that protesters ahead of him were being pushed back by the local officers. The film footage and photographs, however, reveal that he actually made it into the canteen and was waving his placard there for some time before he was made to leave by the officers. In fact, he was one of the last to retreat. iv) Mr Christian said in cross examination that but, for the intervention of the police, he would simply have showed his placard to the councillors in the canteen and would have left of his own accord. I simply do not accept this as being even remotely likely. The extent of his earlier determination coupled with the evidence of the films as to the extent of his reluctance to leave after he had shown his placard expose this as a piece of retrospective wishful thinking.

[115]Mr Christian’s account of his detention in his witness statement records how he was going downstairs when he saw officers violently pushing Ms Laporte to the floor. He instinctively turned his body around to try to go up the stairs to witness the incident and to make sure she was OK. Before he even had the chance to make his way up the stairs a police officer grabbed his left hand and twisted it behind his back. He forced him to bend forwards and marched him to the next half landing. He felt knee strikes to his stomach at least three times and two punches towards his chest. He was pushed unresisting to the floor where he was restrained by three or four officers. He was handcuffed and then brought to his feet.

[116]The defendant’s pleaded case on this issue is to the effect that Mr Christian made a concerted effort to break past the police behind him. He appeared to be trying to reach Ms Laporte whose first name he had shouted out. His arms were flailing and he was kicking out at the police. One of the kicks hit PC Downing on the shin. PC Downing and PC Light were struggling to control Mr Christian and PC Carnegie joined in and attempted to restrain him with a gooseneck hold on his arm and two attempted knee strikes the first of which missed and the second struck only a glancing blow. As the group reached the landing area, he was told that he was under arrest for assaulting a police officer and to prevent a breach of the peace. PS Kelly then came to help push Mr Christian to the ground.

[117]I reject Mr Christian’s account that he did no more than turn around. He had seen someone he knew and whose sympathies he strongly shared being taken to the floor by police officers and his stated intention as recorded in his prepared statement was:

“I was concerned for her safety and instinctively turned to go up and offer my help.”

I find that Mr Christian had started up the stairs in an attempt to reach Ms Laporte. I make the following observations: i) It has already been demonstrated on the film footage that Mr Christian advanced much further into the canteen area and stayed there longer than he recalled in his witness statement. It is entirely plausible, therefore, that his recollection as to how far his attempts to help Ms Laporte had gone before the police intervened is similarly impaired. ii) It is less likely that the police would have reacted as forcefully as they did in restraining Mr Christian had he done no more than simply turn around. Of course, even trained police officers are, on occasion, capable of gratuitous unprovoked force. Nevertheless, with the particular advantage I have had of assessing these officers give evidence I am satisfied that they would not have behaved in the way alleged. iii) There is no dispute that officers were indeed taking Ms Laporte to the ground and, particularly as he had not seen the events leading up to this, it is not surprising that Mr Christian’s reaction was instinctive (as he, himself, put it) rather than considered. Mr Christian had known and worked with Ms Laporte and would have been motivated to act, as he saw it, to help her. Emotions were already running high and although I readily accept that Mr Christian is not by nature a violent man I am satisfied that his imperative was to reach Ms Laporte. I do not find that his intention was deliberately to engage in fighting with the police but I am satisfied that he was prepared to use some force to get past them and back up the stairs. There was no real likelihood that the officers would simply stand by and let him through and, in order to stand any chance of achieving his object, he would have to have made it as difficult as possible for them to stop him. I am satisfied that he was flailing his limbs about with this purpose in mind and that in doing so he struck PC Downing a blow with his foot to the shin. PC Downing concluded that this was a deliberate act. I am not satisfied that it was deliberate in the sense that Mr Christian had specifically directed his blow to connect with the officer’s leg. I am, however, satisfied that Mr Christian was showing a transient reckless disregard for the likely consequences of his vigorous attempts to reach Ms Laporte and that the officer genuinely and reasonably believed the blow to have been intentional.

[118]I do not accept Mr Christian’s account of excessive force used by the police officers. I take particular note of the following: i) On the day after the incident, Mr Christian made a prepared statement about the events in question with the assistance of a solicitor. This account omits any reference to being punched. I would have expected that if Mr Christian had any recollection, at this stage, of having been punched he would have recorded it. It would still have been very fresh in his mind and of undoubted significance. I do not find the fact that he was distressed and worried at the time to provide a sufficiently convincing explanation for his omission. ii) Mr Christian’s evidence, both in relation to the knee strikes and punches, was unclear. He said he could see the knee strikes to his stomach but not the fists to his chest. This account, if accurate, is hard to explain but it is, on the other hand, consistent with a reconstructed memory of blows which did not actually take place and the infliction of which had therefore left no coherent visual image in Mr Christian’s mind. iii) Any officer attempting to punch Mr Christian to the chest would have to have bent right down in order to do so. For an officer intent upon using casual and gratuitous violence such a move would have been as elaborate as it would have been inexplicable. iv) Mr Christian accepted that the blows complained of were not causing him strong pain in the immediate aftermath of these events as he was walked towards the wall to which he was faced. There was no physical evidence of any injury. v) The evidence of other protesters was not very helpful to Mr Christian’s account. Mr Over described the punches as having been struck when Mr Christian was standing or stooping and not when bent over. Miss Hewitt had the impression that Mr Christian, her partner, was being beaten up but could not recollect any particular assaults at all. Ms Phillips did not see either punches or knee strikes. vi) Again, the use of sustained and manifestly excessive force would run the risk that it would be recorded on film with extremely serious consequences for the officers concerned. vii) PC Carnegie accepts that he attempted to strike Mr Christian with his knee albeit with limited success. In the rapidly developing and confusing sequence of events it is not too difficult to see how his actions may have been perceived and/or subsequently recalled as a deliberate and unwarranted physical attack.

[119]In the circumstances, I am satisfied that Mr Christian’s arrest was lawful and that he was told about the fact of his arrest and the reason for it as soon as was practicable. Doubtless the handcuffs which were applied were uncomfortable but their use was proportionate and Mr Christian was not treated with excessive force.

CUSTODY

[120]The claimants were taken to Hornsey Police station where they were booked in shortly before 10pm. Ms Laporte was detained for a little under 23 hours. Mr Christian was detained a little over 22 hours. The contemporaneous records reveal that during this time the claimants were booked in and processed, the statements of the officers at the scene were completed and collated and CCTV footage from inside the Civic Centre was obtained and viewed. Whilst in custody, each claimant had a consultation with a solicitor and interviews were conducted. The cases were referred for a charging decision and the claimants were each duly charged and released.

[121]In the circumstances, I accept the defendant’s submission that the length of time in police custody was not excessive and that the claim for false imprisonment fails.

MALICIOUS PROSECUTION

[122]The claimants were charged with the offences of assaulting a police officer in the execution of his (or her) duty. The case came before the Haringey Magistrates’ Court in September 2011. The prosecution collapsed following successful submissions that there was no case for either Ms Laporte or Mr Christian to answer.

[123]However, the significance of these acquittals is not as great as may appear at first blush. The half time adjudication was based on a finding by the District Judge that the prosecution had not satisfied the court that the officers in question were acting in the execution of their duty at the material time. The case of Porter in which the majority in the Court of Appeal considered that officers assisting in the lawful expulsion of trespassers were acting in the course of their duty was not drawn to the judge’s attention. The dismissal of the charges did not carry with it the implication that the officers’ accounts had been found to have been unworthy of belief but merely that, as a matter of law, they were not acting in the execution of their duty at the material time.

[124]On my assessment of the evidence the officers had an honestly held belief that they had been assaulted in the execution of their duty and that therefore one of the essential ingredients of the tort of malicious prosecution is not made out.

ARTICLES 10 AND 11 ECHR

[125]

Article 10 of the European Convention on Human Rights

provides:

“Freedom of expression 1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

[126]In Appleby the European Court of Human Rights held, in a passage to which I have already made reference in this judgment, that Article 10 does not bestow any freedom of forum for the exercise of such a right which gives rise to the automatic creation of rights of entry to all publicly owned property. If a bar on access to property were to have the effect of preventing any effective exercise of freedom of expression or the essence of the right is destroyed then the state may fall under a positive obligation to regulate property rights accordingly.

[127]The Court went on to hold that largely identical considerations arose under Article 11.

[128]I am entirely satisfied that, in the circumstances of this case, the protesters had not been improperly prevented from exercising their rights of freedom of expression. It is necessary in a democratic society to protect the machinery of local government from being brought to a standstill by serious and deliberately disruptive conduct no matter how well intentioned the objects of those responsible for such conduct.

CONCLUSION

[129]For the reasons given above, I reject the claims of each of the claimants and give judgment for the defendant.