R Joshua Moos and Hannah McClure v The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 14 April 2011 |
| Neutral Citation | [2011] EWHC 957 (Admin) |
| Docket Number | Case No: CO/6790/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 April 2011 |
[2011] EWHC 957 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
Mr Justice Sweeney
Case No: CO/6790/2009
Michael Fordham QC and Iain Steele (instructed by Bindmans) for the Claimant
Monica Carss-Frisk QC and David Pievsky (instructed by Met. Police) for the Defendant
Hearing dates: 22 nd, 23 rd and 24 th March 2011
This is the judgment of the Court
Introduction
On 1 st April 2009, there were two large demonstrations in the City of London. They were in protest against the G20 Summit, which was to take place in London on the following day, when there were to be further demonstrations. The first of the two demonstrations on 1 st April 2009 was outside the Royal Exchange towards the Bank of England. The second was a quarter of a mile or so away in Bishopsgate outside a building called the Carbon Exchange. This was referred to as the Climate Camp. The Royal Exchange "meltdown" demonstration was disorderly to the point of serious violence. At one point, a branch of the Royal Bank of Scotland in Threadneedle Street was attacked and set on fire and computers were damaged. The Climate Camp demonstration was less disorderly and only intermittently and to a much lesser extent violent. Some of those who took part in the Climate Camp demonstration brought tents and cooking equipment and put their tents up in the road intent on staying there overnight. This demonstration completely blocked Bishopsgate, a four lane highway constituting a major thoroughfare into and out of the City to the North- East.
There quite soon came a time when the police decided to deal with the Royal Exchange demonstration by containing it within a police cordon which blocked all five of the ways out. This was followed towards the evening by a dispersal procedure by which the Royal Exchange demonstrators were allowed to leave in small numbers, and they did so. This Royal Exchange containment is not criticised in these proceedings as unlawful. At the same time as they began the Royal Exchange dispersal, the police decided to contain the Climate Camp demonstration within Bishopsgate. They did this, not because they believed that, if it was uncontained, the Climate Camp demonstration alone would result in an imminent breach of the peace, but because they believed that otherwise the more violently disposed demonstrators from the Royal Exchange would join ("hijack") the Climate Camp and that breaches of the peace would thereby occur.
The main claim in these judicial review proceedings is that the containment of the Climate Camp was unnecessary and unlawful and the court is asked so to declare. Other more specific complaints of unlawfulness are made which criticise police action at and in relation to the Climate Camp.
Collins J, in giving permission to bring these proceedings, questioned the appropriateness of a judicial review claim, suggesting that a witness action might be more appropriate. He was persuaded to give permission for judicial review, but observed that the claim would have to be limited to examine the actions and decisions of senior police officers. The court would not entertain claims that individual more junior police officers acted improperly if this was not the result of more general senior decision or instruction.
The first and main police witness was CS Michael Johnson who was the Bronze officer operationally in charge of the police operation for both demonstrations. He made a long witness statement and directions were given enabling him to be cross-examined, as he was, on five limited topics. He made a contemporaneous log of events during the day. There were witness statements also from three sub-bronze officers, Chief Inspectors John Dale, Neil Moscrop and Michael Dod, each of whom also had logs. There were statements from three claimants, one of whom, Chris Abbott, ceased to be a claimant in the course of the proceedings, and statements from 28 more junior police officers.
The police were aware that demonstrations were likely on 1 st April 2009, but had little or no prior contact with those organising them, being told that the Climate Camp was a non-hierarchical organisation.
The Law
It is convenient at the outset to refer to two House of Lords authorities. Laporte v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105 concerned a protest at an RAF airbase in Gloucestershire used by the US Air Force. Passengers in coaches from London intending to travel to the protest were intercepted by police before they reached their destination. The intercepting police concluded that some of those on the coaches were intent on causing a breach of the peace. They were not arrested, but were made to return to the coaches which were escorted by the police back to London. On appeal against decisions of lower courts that preventing participation in the demonstration had been necessary and proportionate, the House of Lords held that 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. There had been no indication of any imminent breach of the peace when the coaches were intercepted, nor was it considered likely to occur. The action preventing the claimant and others from continuing to the demonstration had been an interference with their right to demonstrate at a lawful assembly which was not prescribed by domestic law.
All the judgments in Laporte emphasise that the common law power and duty to take reasonably necessary steps to prevent an apprehended breach of the peace depends on the apprehended breach being imminent. Lord Mance, for instance, at paragraph 141 regarded the reasonable apprehension of an imminent breach of the peace as an important threshold requirement, which must exist before any form of preventive action is permissible at common law. Where a reasonable apprehension of an imminent breach of the peace exists, then the preventive action taken must be reasonable and proportionate. Lord Mance then said later in the same paragraph:
"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."
To like effect is Lord Rodger of Earlsferry at paragraph 69, where he said that there is no need for the police officer to wait until an opposing group hoves into sight before taking action. That would be to turn every intervention into an exercise of crisis management. See also Lord Brown of Eaton-under-Heywood at paragraph 114, who added that even when a breach of the peace is reasonably judged imminent, the police must still take no more intrusive action than appears necessary to prevent it.
Lord Carswell said at paragraph 102:
"I agree with your Lordships that the imminence or immediacy of the threat to the peace is an essential condition, which should not be diluted. As Lord Rodger has pointed out, para 67, the test has to be applied in the conditions of today, which may include the availability of better information to police officers on the ground about the way in which events are unfolding. I do consider, however, that it can properly be applied with a degree of flexibility which recognises the relevance of the circumstances of the case. In particular it seems to me rational and principled to accept that where events are building up inexorably to a breach of the peace it may be possible to regard it as imminent at an earlier stage temporarily than in the case of other more spontaneous breaches."
Lord Rodger said at paragraph 84 that provided there was no other way of preventing an imminent breach of the peace, under the common law a police officer could stop a coachload of protesters from proceeding further, even although those on board included entirely peaceful protesters. Lord Rodger had said at paragraph 82 that, as O'Kelly v Harvey (1882) 10 LR Irl 285; (1883) 14 LR Irl 105 shows, where it is necessary in order to prevent a breach of the peace, at common law police officers can take action (in that case dispersing a meeting) which affects people who are not themselves going to be actively involved in the breach – see also Lord Rodger at paragraph 78.
Their Lordships considered the case of Moss v McLachlan [1985] 1 RLR 76, Lord Rodger in these terms in paragraph 70:
"The closest parallel to the present case is Moss v McLachlan [1985] IRLR 76, a test case brought by the National Union of Mineworkers to clarify the law on police road blocks. These were in widespread use during the miners' strike which was in progress at the time. In April 1984 the police stopped cars carrying striking miners as they left the motorway at a point near four collieries in the Nottingham coalfield where work was continuing. The miners in the cars were intending to picket one or more of the pits. Two of the pits were between a mile and a half and two miles...
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