R (Laporte) v Chief Constable of Gloucestershire
| Jurisdiction | England & Wales |
| Judge | Lord Chief Justice |
| Judgment Date | 08 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1639 |
| Docket Number | Case No. 2004/0608 and 2004/0615 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 December 2004 |
[2004] EWCA Civ 1639
The Lord Chief Justice of England and Wales
Lord Justice Clarke and
Lord Justice Rix
Case No. 2004/0608 and 2004/0615
CO/2902/2003
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Lord Justice May and Mr. Justice Harrison
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Michael Fordham (instructed by Bindman & Partners) for the Appellant
Mr Simon Freeland QC and Mr Jeremy Johnson (instructed by the Force Solicitor, Gloucestershire Constabulary) for the Respondent
Mr Edward Faulks QC and Mr Simon Readhead (instructed by the Force Solicitor, Thames Valley Police) for the first Interested Party
Mr John Beggs and Miss Amy Street (instructed by Directorate of Legal Services, Metropolitan Police) for the second Interested Party
Mr Jason Coppel (instructed by Liberty) for the Intervener
This is the judgment of the Court.
Introduction
This judgment deals with an issue of importance. The issue relates to the ability of the police to take action to avoid a breakdown in law and order as a result of a demonstration. This still depends, at least in part, on the police's duty, which they share with members of the public, at common law to take action to prevent breaches of the peace. The limits on this common law power are by no means clear. This makes it difficult for the police to know what steps they can and cannot take, without unlawfully infringing the civil rights of individual members of the public, to avoid losing control of demonstrations with the consequential risk of causing personal injuries and damage to property.
The appeal arises out of a decision of the Administrative Court (May LJ and Harrison J) given on 19 February 2004. That Court had to decide whether police action in connection with a demonstration against the war in Iraq was lawful. The Claimant was partly successful in the proceedings. The Chief Constable of Gloucestershire Constabulary was the Defendant. He appeals against the judgment insofar as the outcome was favourable to the Claimant. The Claimant cross-appeals against the judgment insofar as she was unsuccessful. Both parties were given permission to appeal by the court below because of the importance of the issues involved.
There are also two interested parties, the Chief Constable of Thames Valley Police and the Commissioner of Police of the Metropolis. Liberty sought permission to intervene by way of written submissions only and was granted permission to do so on 15 September 2004. The Chief Constable of Thames Valley Police and the Commissioner of Police of the Metropolis were represented at the hearing of the appeal. We have taken into account the submissions made on behalf of the interested parties and the Intervener in coming to our decision.
The Factual Background
The facts are fully set out in the judgment of the court below. For the purposes of the appeal the following facts are relevant:
(a) Fairford is an air base near Cirencester. It was used heavily by the US Air Force in the build-up to and early stages of the Iraq war. Its perimeter runs for approximately 13 miles, parts of which were not secure.
(b) Between 14 December 2002 and 22 March 2003, there were a number of demonstrations at Fairford against the war in Iraq. On 26 January, 1500 protesters were present, and on 23 February, 500 were present. During the protests there were incursions onto the site resulting in numerous arrests, damage to the perimeter fence and runway lights, and £40,000 damage to vehicles. On 18 March, an individual was found hiding near the site with ingredients for a suspected incendiary device.
(c) On 15 February 2003, several groups advertised an intended protest demonstration at Fairford on 22 March 2003. One group that advertised was called "Disobedience Against War." On 20 February 2003, military action against Iraq began.
(d) The staging of a lawful assembly at Fairford on 22 March 2003 was authorised by the police under sections 12 and 14 of the Public Order Act 1986. However, Gloucestershire Police subsequently received intelligence indicating that hard-line protesters were intent on being present at that demonstration. They therefore prepared detailed plans which were intended to ensure that the protest would pass peacefully. There was a chain of command. Gold Commander was the Assistant Chief Constable with overall strategic control. Under him was the Silver Commander, Chief Superintendent Lambert ("Mr. Lambert"), who was responsible for tactical aspects of the operation, and under him Bronze Command, being those police officers responsible for operational matters on the ground.
(e) The police objectives were twofold: (a) preventing violence; and (b) facilitating peaceful protest. Coach-loads of protesters were expected from all over the country. The police plan involved escorting coaches to pre-determined drop-off points and allowing protesters to continue on foot to the prescribed route of the march. The police had circulated publicity about the arrangements warning that those who deviated from the arrangements risked arrest.
(f) The Wombles are an activist group. Their acronym stands for White Overalls Movement Building Libertarian Effective Struggles. Members of the Wombles were present at Fairford on the 23 February 2003 when there was serious disorder. The main gate of the base was forced open and there was a major incursion into the base. The Wombles have a website which states that they promote anarchist ideas. A message posted on their website on 11 March 2003, under the heading "Smash USAF Fairford! Info on coaches,"stated:
"The first [time] we went there 50 people entered the base, the second time the main gates were pulled down, what happens on March 22nd at USAF Fairford is up to you. Are we going to passively spectate while hundreds of thousands of Iraqis are murdered or are we going to be actively involved in changing history and stopping this war by any means necessary? Book a place on the coach and find out!"
(g) Mr. Lambert made a statutory stop and search authorisation under section 60 of the Criminal Justice and Public Order Act 1994 on 21 March 2003, the day before the demonstration. At 10.45 a.m. on 22 March 2003, Gloucestershire Police received further specific intelligence in relation to members of the Wombles being on board: "3 coaches and a van are en route from London carrying items and equipment to disrupt [the] protest today and gain entry to the airbase."
(h) Acting upon that intelligence and pursuant to the authorisation in place, at 12.50 p.m. on 22 March 2003, the police stopped, boarded and searched four vehicles matching the description at a lay-by on the A417, near the town of Lechlade. This included the Claimant's coach. The lay-by was less than 5 kilometres by road from the perimeter of Fairford, and approximately 2 kilometres on foot.
(i) Mr. Lambert then made a removal of disguises authorisation under section 60AA of the 1994 Act and one arrest was made. But on the instructions of Mr. Lambert, there were to be no further arrests (unless other offences were apparent) as he did not consider a breach of the peace to be sufficiently imminent at that stage.
(j) Discovered on the three coaches were: "some protective clothing, spray paint, two pairs of scissors, a smoke bomb and five shields". May LJ noted in his judgment (at paragraph 16) that those items were "in the main protective or useful to conceal identity [but] there were few items capable of being used offensively." Protective (white) clothing was the known uniform of the Wombles, but other protesters had been encouraged to wear similar clothing for symbolic reasons (to look like civilian weapons inspectors). Other items retrieved included a balaclava, a crash helmet, a wood saw, a hammer, two knives and garden clippers, but the lower court made no positive finding that these articles had been seized from the coaches, and the Claimant contends that these items did not play any role in the decisions taken by the police.
(k) May LJ noted (at paragraphs 15 and 16) that passengers "tried to conceal their identities", that "nobody accepted responsibility for [the items]"and that the Claimant "refused to give her name and address when she was asked [and] gave no good reason for not co-operating". There is evidence that an officer of the Metropolitan Police recorded the presence of eight named individuals whom he readily recognised as members of the Wombles and that "the police knew that transport arrangements had been advertised not only on the Wombles website, but also elsewhere." Mr. Fordham, on behalf of the Claimant, criticises the police for not asking more questions, but it is by no means clear that further questioning would have revealed any further relevant information.
(l) Following the seizure of those items, Mr. Lambert concluded that the coach passengers were heading for Fairford and were likely to cause a breach of the peace. At 2 p.m., he gave instructions that the coaches and passengers were to be escorted back to London. This happened and the Claimant disembarked from a coach at Shepherd's Bush at 4.54 p.m., approximately two and a half hours later.
Mr. Lambert's Reasoning for taking the Action he did
In his statement, Mr. Lambert says that he discussed the operation with the Gold Commander, and it was "agreed that the...
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