The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. The officer acted saying that he feared a breach of the peace was imminent, and that a preventative measure falling short of detention was appropriate.
Held: The claimant’s appeal succeeded. State authorities have a positive duty to take steps to ensure that lawful public demonstrations can take place, and that any prior restraint on freedom of speech requires ‘the most careful scrutiny’. The officer’s interference with the claimants’ rights was not in accordance with law. The authorities did not provide a test of reasonableness, but one of imminence. Exercise of the right to freedom of assembly and exercise of the right to free expression are often closely associated.
The common law entitled and bound police officers and citizens alike to seek to prevent, by arrest or action short of arrest, any breach of the peace occurring in their presence or which they reasonably believed was about to occur. If no breach of the peace had actually occurred, a reasonable apprehension of an imminent breach of the peace was required before any form of preventive action was permissible.
Lord Bingham said: ‘Any prior restraint on freedom of expression calls for the most careful scrutiny . . The Strasbourg Court will wish to be satisfied not merely that a state exercised its discretion reasonably, carefully and in good faith, but that it applied standards in conformity with Convention standards and based its decision on an acceptable assessment of the relevant facts . .’
. . and ‘I would acknowledge the danger of hindsight, and I would accept that the judgment of the officer on the spot, in the exigency of the moment, demands respect. But making all allowances, I cannot accept the chief constable’s argument. It was entirely reasonable to suppose that some or all of those on board the coaches might wish to cause damage and injury to the base at RAF Fairford, and to enter the base with a view to causing further damage and injury. It was not reasonable to suppose that even these passengers simply wanted a violent confrontation with the police, which they could have had in the lay-by. Nor was it reasonable to anticipate an outburst of disorder on arrival of these passengers in the assembly area or during the procession to the base, during which time the police would be in close attendance and well able to identify and arrest those who showed a violent propensity or breached the conditions to which the assembly and procession were subject. The focus of any disorder was expected to be in the bell-moth area outside the base, and the police could arrest trouble makers then and ther. .’
Lord Mance said: ‘In my opinion, that proposition and the statements on which it relies are to be rejected. So too the suggestion that imminence is a flexible concept, different degrees of which may justify different forms of preventive action. I regard the reasonable apprehension of an imminent breach of the peace as an important threshold requirement, which must exist before any form of preventive action is permissible. . . The requirement of imminence is relatively clear-cut and appropriately identifies the common law power (or duty) of any citizen including the police to take preventive action as a power of last resort catering for situations about to descend into violence. That is not to suggest that imminence falls to be judged in absolute and purely temporal terms, according to some measure of minutes. What is imminent has to be judged in the context under consideration, and the absence of any further opportunity to take preventive action may thus have relevance.’
Lord Rodger dealt with the concept of imminence, saying: ‘This does not mean that the officer must be able to say that the breach is going to happen in the next few seconds or next few minutes. That would be an impossible standard to meet, since a police officer will rarely be able to predict just when violence will break out. The protagonists may take longer than expected to resort to violence or it may flare up remarkably quickly. Or else, as in O’Kelly v Harvey the breach of the peace may be likely to occur when others arrive on the scene and there is no way of knowing exactly when that will happen. There is no need for the police officer to wait until the opposing group hove into sight before taking action. That would be to turn every intervention into an exercise in crisis management. As Cooke P observed in Minto v Police, ‘it would be going too far to say as a matter of law that the powers of the police at common law can be exercised only when an instantaneous breach of the peace is apprehended’ . .’
Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood, Lord Mance
[2006] UKHL 55, Times 14-Dec-2006, [2007] 2 WLR 46, [2007] 2 All ER 529, [2007] 2 AC 105, (2006) 22 BHRC 38
Bailii
Public Order Act 1936, Public Order Act 1986, Criminal Justice and Public Order Act 1994, European Convention on Human Rights 10 11
England and Wales
Citing:
At First Instance – Laporte, Regina (on the Application of) v Gloucestershire Constabulary and others Admn 19-Feb-2004
The court considered a claim for judicial review of a police officer’s decision to turn back a number of coaches. Each coach contained passengers en route to join a demonstration at an RAF base in Gloucestershire, the officer honestly and reasonably . .
Appeal From – Laporte, Regina (on the Application of) v Gloucestershire Constabulary and others CA 8-Dec-2004
The claimant had been in a bus taking her and others to an intended demonstration. The police feared breaches of the peace, and stopped the bus, and ordered the driver to return to London, and escorted it to ensure it did not stop.
Held: The . .
Cited – Humphries v Connor 1864
The plaintiff walked the streets of Swanlinbar, Co Cavan, wearing an orange lily, an action which was ‘calculated and tended to provoke animosity between different classes of Her Majesty’s subjects’, according to the defendant’s pleadings. Several . .
Aberrant – Piddington v Bates 1960
Two entrances to a printing works were picketed by striking printers. A police officer decided that there should be no more than two pickets at each entrance. The defendant wished to join the two pickets at the rear entrance. The officer said two . .
Cited – King v Hodges 1974
The court considered that a police officer’s powers were exercisable when he reasonably believed that a breach of the peace was about to take place. . .
Cited – Albert v Lavin QBD 1980
The defendant (A) and the prosecutor (L), an off duty constable not in uniform, awaited a bus. A pushed past the queue, whose members objected. L stood in his way. A pushed past onto the step of the bus, turned, grabbed L’s lapel and made to hit . .
Cited – Regina v Howell (Errol) CACD 1981
The court considered the meaning of the legal concept of a breach of the peace.
Held: The essence is to be found in violence or threatened violence. ‘We entertain no doubt that a constable has a power of arrest where there is reasonable . .
Cited – Foulkes v Chief Constable of Merseyside Police CA 9-Jun-1998
A man was locked out of the matrimonial home which he owned jointly with his wife, following a family dispute. The police told him, as was the fact, that his wife and children did not want him to re-enter the house and the police suggested that he . .
Cited – Albert v Lavin HL 3-Dec-1981
An off duty and out of uniform police officer attempted to restrain the defendant jumping ahead of a bus queue. The defendant struggled, and continued to do so even after being told that of the officer’s status. He said he had not believed that he . .
Cited – Moss v McLachlan QBD 1985
There had been violent conflict between members of different unons in the context of the miners’ strike. The police had found it difficult to maintain the peace. The appellants were four of about sixty striking miners intent on a mass demonstration . .
Cited – Duncan v Jones KBD 1936
The appellant was about to make a public address in a situation in which the year before a disturbance had been incited by her speaking. A policeman believed reasonably that a breach of the peace would occur if the meeting was held, and ordered the . .
Cited – Ezelin v France ECHR 26-Apr-1991
The free speech of protesters should not be curtailed simply because of the unlawful behaviour of one or two individuals. The court considered that ‘that the freedom to take part in a peaceful assembly – in this instance a demonstration that had not . .
Cited – Steel and Others v The United Kingdom ECHR 23-Sep-1998
The several applicants had been arrested in different circumstances and each charged with breach of the peace contrary to common law. Under the Magistrates’ Court Act 1980, the court can bind over a Defendant to keep the peace, if the Defendant . .
Cited – Minto v Police 1987
When considering a police officer’s assessment that a breach of the peace is imminent, the question of immediacy is in part a question of degree and is highly relevant to the reasonableness of the action taken.
A refusal or failure to . .
Cited – Ollinger v Austria ECHR 29-Jun-2006
. .
Cited – Christian Democratic People’s Party v Moldova ECHR 14-Feb-2006
. .
Cited – Ziliberberg v Moldova ECHR 1-Feb-2005
The court observed that: ‘the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society.’ it is possible to distinguish between interferences . .
Cited – Williamson v Chief Constable of the West Midlands Police CA 21-Feb-2003
The claimant had been arrested by an officer entering his house to investigate a breach of the peace, then held for two nights. The police believed that he posed no continuing threat, but believed he had to be brought before the magistrates before . .
Cited – Plattform Arzte Fur Das Leben v Austria ECHR 21-Jun-1988
It is the duty of member states to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully. . .
Cited – Djavit An v Turkey ECHR 20-Feb-2003
Hudoc Judgment (Merits and just satisfaction) . .
Cited – Hashman and Harrup v The United Kingdom ECHR 25-Nov-1999
The defendants had been required to enter into a recognisance to be of good behaviour after disrupting a hunt by blowing of a hunting horn. They were found to have unlawfully caused danger to the dogs. Though there had been no breach of the peace, . .
Cited – The Sunday Times v The United Kingdom (No 2) ECHR 26-Nov-1991
Any prior restraint on freedom of expression calls for the most careful scrutiny. ‘Freedom of expression constitutes one of the essential foundations of a democratic society subject to paragraph (2) of Article 10. It is applicable not only to . .
Cited – Redmond-Bate v Director of Public Prosecutions Admn 23-Jul-1999
The police had arrested three peaceful but vociferous preachers when some members of a crowd gathered round them threatened hostility.
Held: Freedom of speech means nothing unless it includes the freedom to be irritating, contentious, . .
Cited – O’Kelly v Harvey CA 1883
The plaintiff, a nationalist Member of Parliament, sued the defendant for assault and battery. There was to be a meeting of the Land League. On the day before, a placard summoned local Orangemen to oppose it. The defendant, a justice of the peace . .
Cited – Wise v Dunning KBD 1902
A protestant preacher in Liverpool was held to be liable to be bound over to keep the peace upon proof that he habitually accompanied his public speeches with behaviour calculated to insult Roman Catholics. His actions had caused, and were liable to . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
Cited – Cumming and others v Chief Constable of Northumbria Police CA 17-Dec-2003
The six claimants sought damages for wrongful arrest and false imprisonment. Each had been arrested on an officer’s suspicion. They operated CCTV equipment, and it appeared that tapes showing the commission of an offence had been tampered with. Each . .
Cited – Regina v Nicol and Selvanayagam QBD 10-Nov-1995
The appellants appealed a bind-over for a finding that each appellant had been guilty of conduct whereby a breach of the peace was likely to be occasioned. The appellants, concerned about cruelty to animals, had obstructed an angling competition by . .
Cited – McLeod, Mealing (deceased) v Metropolitan Police Commissioner CA 3-Feb-1994
The plaintiff appealed against the dismissal of her claims for trespass and breach of duty by the defendant’s officers. In divorce proceedings, she had been ordered to return certain household goods to her husband, but had failed yet to do so. The . .
Cited – Silver v United Kingdom ECHR 1980
(Commission) Complaint was made as to the censorship of prisoners’ correspondence. The censorship of prisoners’ correspondence was ancillary to prison rules restricting the contents of correspondence. The Commission, therefore, and the Court had to . .
Cited – Regina v Brown 15-Jul-1841
(Bedford Assizes – (Crown Side)) Constable Herbert complained that the defendant had not assisted him when called on to do so when he tried to halt a riot.
Held: Baron Alderson said: ‘The offence imputed to the defendant consists in this – . .
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – Chorherr v Austria ECHR 25-Aug-1993
The applicant was one of two arrested demonstrating against the Austrian armed forces at a military parade. They had rucksacks on their backs, with slogans on them. The rucksacks were so large that they blocked other spectators’ view of the parade. . .
Cited – Regina v Chief Constable of Sussex Ex Parte International Trader’s Ferry Ltd CA 28-Jan-1997
A restriction placed by a chief constable on the police support he would make available to support a lawful trade was reasonable, even though it might amount to trade interference. The allocation of resources available to the Chief Constable was for . .
Cited – Dibble v Ingleton 1972
A motorist was suspected of driving under the influence of alcohol and was required to provide a specimen of breath. He claimed that he had consumed alcohol only a few minutes earlier and the constable had to wait until 20 minutes had elapsed before . .
Cited – O’Kelly v Harvey 1882
(Court of Appeal in Ireland) The plaintiff, a nationalist Member of Parliament, sued the defendant for assault and battery. There had been a meeting which was to be held on 7 December 1880. On the day before, a placard appeared summoning local . .
Cited – Regina v Chief Constable of Sussex, ex Parte International Trader’s Ferry Limited HL 2-Apr-1998
Chief Constable has a Wide Discretion on Resources
Protesters sought to prevent the appellant’s lawful trade exporting live animals. The police provided assistance, but then restricted it, pleading lack of resources. The appellants complained that this infringed their freedom of exports under . .
Cited – Beatty v Gillbanks QBD 13-Jun-1882
The appellants assembled with others for a lawful purpose, and with no intention of carrying it out unlawfully, but with the knowledge that their assembly would be opposed, and with good reason to suppose that a breach of the peace would be . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
Cited by:
Cited – Austin and Another v Commissioner of Police of the Metropolis CA 15-Oct-2007
The claimants appealed dismissal of their claims for false imprisonment and unlawful detention by the respondent in his policing of a demonstration. They had been held within a police cordon in the streets for several hours to prevent the spread of . .
Cited – Tabernacle v Secretary of State for Defence Admn 6-Mar-2008
The court considered the validity of bye-laws used to exclude protesters from land near a military base at Aldermarston.
Held: The byelaw which banned an ‘camp’ was sufficiently certain, but not that part which sought to ban any person who . .
Cited – Gillies v Procurator Fiscal, Elgin HCJ 1-Oct-2008
The police went to the defendant’s flat to find her boyfriend. She refused them access, but when they saw him, the police officers called out that he was under arrest under the 1995 Act, and forced their way past the door and the defendant. The . .
Cited – Hall and Others v Mayor of London (on Behalf of The Greater London Authority) CA 16-Jul-2010
The appellants sought leave to appeal against an order for possession of Parliament Square on which the claimants had been conducting a demonstration (‘the Democracy Village’).
Held: Leave was refused save for two appellants whose cases were . .
Cited – Moos and Another, Regina (on The Application of) v Commissioner of the Police of The Metropolis Admn 14-Apr-2011
The claimants, demonstrators at the G20 summit, complained of the police policy of kettling, the containment of a crowd over a period of time, not because they were expected to to behave unlawfully, but to ensure a separation from those who were. . .
Cited – Castle and Others v Commissioner of Police for The Metropolis Admn 8-Sep-2011
The claimants, all under 17 years old, took a peaceful part in a substantial but disorderly demonstration in London. The police decided to contain the section of crowd which included the claimants. The claimants said that the containment of children . .
Cited – Howarth v Commissioner of Police of The Metropolis QBD 3-Nov-2011
howarth_cmpQBD2011
The claimant sought judicial review of a decision to search him whilst travelling to a public protest in London. A previous demonstration involving this group had resulted in criminal damage, but neither the claimant nor his companions were found to . .
Cited – McClure and Another, Regina (on The Application of) v The Commissioner of Police of The Metropolis CA 19-Jan-2012
The Commissioner appealed against a decision that certain aspects of its crowd control procedures exercised during a public protest were unlawful.
Held: The appeal succeeded. The issue came down to whether the commanding officer genuinely held . .
Cited – City of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .
Cited – The Mayor Commonalty and Citizens of London v Samede (St Paul’s Churchyard Camp Representative) and Others CA 22-Feb-2012
The defendants sought to appeal against an order for them to vacate land outside St Paul’s Cathedral in London which they occupied as a protest.
Held: The application for leave to appeal failed. The only possible ground for appeal was on the . .
Cited – Wright v Commissioner of Police for The Metropolis QBD 11-Sep-2013
The claimant sought damages for false imprisonment and infringement of his human rights in the manner of the defendant’s management of a demonstration in which he was involved. The issue was whether ilce action was justified on the basis that the . .
Cited – Hicks and Others, Regina (on The Application of) v Commissioner of Police for The Metropolis SC 15-Feb-2017
The claimants had wanted to make a peaceful anti-monarchist demonstration during the wedding of the Duke and Duchess of Cambridge. They complained that the actions of the respondent police infringed their human rights by preventing that . .
Lists of cited by and citing cases may be incomplete.
Police, Human Rights, Torts – Other
Leading Case
Updated: 01 November 2021; Ref: scu.247396