Susannah Mengesha v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Mr Justice Wyn Williams |
| Judgment Date | 18 June 2013 |
| Neutral Citation | [2013] EWHC 1695 (Admin) |
| Docket Number | Case No: CO/2209/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 June 2013 |
[2013] EWHC 1695 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Mr Justice Wyn Williams
Case No: CO/2209/2012
Mr Michael Fordham QC and Mr Iain Steele (instructed by Christian Khan) for the Claimant
Mr Dijen Basu (instructed by Directorate of Legal Services, Metropolitan Police Service) for the Defendant
Approved Judgment
Hearing date: 2 nd May, 2013
On 30 November 2011, amongst those attending a public sector trade union march was the claimant, acting, with others, as a legal observer. She is a law graduate and was a member of the "Bar in the Community" scheme at the Bar Pro Bono Unit. In the afternoon the police observed trespass and damage taking place in Panton House close to the Haymarket. At 3.50 p.m. Chief Superintendent Wise authorised containment in Panton Street which, at its western end, runs into the Haymarket. No one disputes but that the containment was justified because serious damage and a breach of the peace had occurred and officers reasonably apprehended an imminent further breach of the peace. Chief Inspector Taylor was containment manager. About 100 people were contained, amongst whom was the claimant.
Since containment is only lawful to prevent an imminent breach of the peace in circumstances where there are no other means by which that imminent breach can be obviated, the police must review and assess the grounds of containment and bring it to an end once an imminent breach of the peace is no longer anticipated. At that time an authorisation under s.60 of the Criminal Justice and Public Order Act 1994 was in place. This permitted constables in uniform to stop any pedestrian and search him for offensive weapons or dangerous instruments, whether or not there were grounds for suspecting that that person was carrying such weapons or articles (s.60(4)(a) and (b)). At about 4.24 p.m. Chief Inspector Taylor, the containment manager, considered that the risk of an imminent breach of the peace was diminishing, but took the view that those within the containment area should be searched as part of a controlled and disciplined release from containment. Again, there is no dispute but that the search of those under the provisions of s.60 was lawful.
For the purposes of the search, six officers were deployed at the exit of Panton Street to funnel those leaving the containment to a place where the searches could be conducted. At 4.58 p.m., once the resources were in place, Chief Inspector Taylor directed those contained along the funnel to the point of search and release with the aid of illuminated dot matrix signs reading "you are being released, turn left".
It was at this point that the events took place which form the subject matter of this claim for judicial review. At 5.05 p.m. Chief Superintendent Wise decided that those who were being released from the containment would be filmed and asked for their details. He took the view that that would help in any subsequent post-incident investigation to identify persons involved in criminal acts. He adds, in his statement, "this would prevent the containment being maintained for a protracted period of time, whilst offenders were identified within the crowd". Chief Inspector Taylor was not party to that decision. Those who filmed and questioned persons being released were not under his command.
On moving from Panton Street where she had been contained, the claimant was held in a separate area, surrounded by police officers, and filmed. She was asked to give her name and address and date of birth. She attempted to ask what police power was relied upon authorising the police to film her and ask her details. Those questions were not answered until she had been filmed and given her details. The claimant describes the process as being oppressive, aggressive and intimidating. But the manner in which the film was taken and questions asked is not central to this claim.
At the heart of this claim lies the contention that the identification of those who had been contained in Panton Street was required of each individual as the price of being permitted to leave. It is not disputed by the Commissioner that to require an individual to give personal details and to submit to filming for the purpose of identification as the condition for release from containment is not lawful. It will be necessary to analyse the legal foundation for this correct concession. But the dispute in this case centred on whether, as a matter of fact, the Commissioner is correct in asserting that the claimant voluntarily gave her particulars and submitted to filming. To resolve this issue it is necessary to set out further factual details.
The claimant had received the impression from the lead legal observer, Michael Goold, that the police were requiring identification details and submission to filming in exercise of a statutory power. At 5.12 p.m. Michael Goold, a law graduate and pupil barrister, asked a police officer if those being contained could leave. He was told that they would be allowed to leave one at a time and that "people were required to have their details and images taken before being released". At about 5.22 p.m. he witnessed two young demonstrators being pushed back into the containment. They said they had been sent back because they had refused to give their names to the police. When he himself was filmed and asked for his details he was informed that he was being required to give those details pursuant to s.50 of the Police Reform Act. This empowers a constable in uniform who has reason to believe that a person has been acting in an anti-social manner to require a person to give his name and address. The Commissioner does not now rely upon that power. But it is of significance that the police at the time believed that they were seeking details of identification and filming those leaving the containment in pursuance of a statutory power. Another legal observer worker has also made a written statement saying that officers told him that they were legally entitled to search him and take details. That this was the belief of the officers is also confirmed by the evidence of the claimant that at 4.30 p.m. an officer addressed the crowd and stated that everyone would be required to have their face photographed and their details taken if they wanted to leave.
The evidence, in my view, is overwhelming that those leaving the containment were required to give their details and to be filmed before they were allowed to be released. That is confirmed by Chief Superintendent Wise's own statement that containment would be prolonged for a protracted period had not those details been provided and that filming taken place. I should record that no evidence has been adduced by the Commissioner to contradict the evidence that a named officer had announced that everyone would be required to be identified as the price of release. Nor has any officer conducting the process made a statement that he or she believed that the identification procedure was merely voluntary. The Commissioner asked the court to view a video of the claimant which, it was suggested, would show that she was submitting to the process voluntarily. My assessment was that the video showed the contrary. It confirmed to me that all those taking part, whether the police or those who had been contained, were behaving under the impression that there was no choice as to whether they should give their details and be filmed for the purposes of identification.
That impression would have been reinforced by the circumstances. The demonstrators and legal observers were lawfully contained. They had no choice as to whether to leave Panton Street until they were gradually and in a controlled manner discharged. They were lawfully funnelled towards the point where they were to be lawfully searched. The police were entitled to require them to be searched as they left. Interposed between the containment and the search was the process of identification, by giving names and addresses and dates of birth, and being filmed. The very circumstances suggest that that was part of containment lawfully imposed and search lawfully required. Indeed, as I shall have cause to remark, initially the response of the Commissioner was to assert that the process of identification was "part and parcel" of the containment. The circumstances...
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