The Queen (on the application of Brian Hicks and Others) v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RICHARDS |
| Judgment Date | 18 July 2012 |
| Neutral Citation | [2012] EWHC 1947 (Admin) |
| Docket Number | Case Nos: CO/7109/2011, CO/7183/2011, |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 July 2012 |
[2012] EWHC 1947 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
and
Mr Justice Openshaw
Case Nos: CO/7109/2011, CO/7183/2011,
CO/7219/2011, CO/7241/2011
CO/7241/2011
CO/7219/2011
CO/7183/2011
CO/7109/2011
and
Karon Monaghan QC and Ruth Brander (instructed by Bhatt Murphy) for the Hicks claimants
Alex Bailin QC and Ruth Brander (instructed by Bindmans LLP) for M and the Pearce claimants
Stephen Cragg (instructed by Tuckers) for the Middleton claimants
Sam Grodzinski QC and Mark Summers (instructed by Metropolitan Police Legal Services) for the Commissioner in the Hicks, M and Pearce claims
Russell Fortt for the Commissioner in the Middleton claim
Hearing dates: 28 May – 2 June 2012
| TABLE OF CONTENTS | |
| Para | |
| INTRODUCTION | 1 |
| THE POLICING CONTEXT | 11 |
| General background | 11 |
| The command structure | 13 |
| The police strategy and briefing documents | 17 |
| The immediate background to the arrests and searches | 25 |
| THE FACTS OF THE INDIVIDUAL CASES | 30 |
| The Hicks claim | 30 |
| Mr Hicks | 30 |
| The Starbucks claimants | 34 |
| The second zombie claimant | 46 |
| The Charing Cross claimants | 54 |
| The M claim | 72 |
| The Pearce claim | 85 |
| The Middleton claim | 103 |
| THE LEGAL FRAMEWORK | 120 |
| Freedom of expression and assembly | 120 |
| Breach of the peace | 128 |
| Other matters | 140 |
| THE ALLEGATION OF AN UNLAWFUL POLICY OR PRACTICE | 142 |
| THE HICKS CLAIM | 156 |
| Ground 1: unlawful policy or practice | 156 |
| Ground 2: no imminent breach of the peace | 158 |
| Ground 3: arrest was disproportionate | 171 |
| Ground 4: fettering of discretion | 173 |
| Ground 5: breach of Convention rights | 178 |
| THE M CLAIM | 193 |
| Ground 1: unlawful policy or practice | 194 |
| Ground 2: unlawful stop and search | 195 |
| Ground 3: unlawful arrest | 198 |
| Ground 4: unlawful taking of DNA, etc. | 209 |
| Ground 5: unlawful retention of DNA, etc. | 217 |
| THE PEARCE CLAIM | 227 |
| Ground 1(a): ulterior motive | 228 |
| Ground 1(b): search for material outside warrants | 239 |
| Grounds 2 and 3: breach of Convention rights | 248 |
| THE MIDDLETON CLAIM | 250 |
| Ground 1: warrant obtained by misleading information etc. | 251 |
| Ground 2: magistrates erred in issuing warrant | 258 |
| Ground 3: breach of ss.15 and 16 of PACE | 264 |
| Ground 4: breach of Convention rights | 269 |
| CONCLUSION | 270 |
INTRODUCTION
This is the judgment of the court on four linked claims for judicial review concerning the lawfulness of the policing of events at the time of and immediately prior to the Royal Wedding on 29 April 2011. All four claims are brought against the Commissioner of Police of the Metropolis, to whom we will refer simply as "the defendant" even though one of the claims also names Bromley Magistrates' Court (which issued a relevant search warrant) as a defendant. A central issue is whether the defendant operated a policy, or practice on the ground, of equating intention to protest with intention to cause unlawful disruption and adopted an impermissibly low threshold of tolerance for public protest, resulting in the unlawful arrest of persons who were viewed by his officers as being likely to express anti-monarchist views. The individual claims raise numerous further issues concerning the lawfulness of the actions taken by the defendant's officers. Those issues engage the law relating to breach of the peace, general principles of public law, specific statutory powers and several articles of the European Convention on Human Rights.
This judgment is far longer than we would have wished. Its length is explained both by the number of issues raised and also, and very importantly, by the fact that an assessment of the lawfulness of the numerous individual arrests and searches in issue requires detailed consideration of the particular factual circumstances of each.
We will refer to the four claims as "the Hicks claim", "the M claim", "the Pearce claim" and "the Middleton claim" respectively and, save to the extent necessary for consideration of common issues, will deal with them in that order. It is helpful to summarise them at the outset, in order to indicate the overall shape of the case.
The Hicks claim relates to fifteen named claimants who were arrested at various locations in central London on the day of the Royal Wedding. They break down into four distinct groups by reference to the circumstances of the arrests: Mr Hicks himself (claimant 1), "the Starbucks claimants" (claimants 2–5), "the second zombie claimant" (claimant 6) and "the Charing Cross claimants" (claimants 7–15). They contend that their arrests were unlawful on the following grounds:
(1) (a) the defendant operated an unlawful policy or practice on the ground of pre-emptively arresting those (including the claimants) who were viewed by his officers as being likely to express anti-monarchist views, without proper regard for the lawful preconditions for such arrests; (b) the defendant operated an impermissibly low threshold of tolerance for public protest in central London on the day of the Royal Wedding;
(2) the arresting officers did not (at the material time or at all) apprehend an imminent breach of the peace and/or there were no reasonable grounds for apprehending an imminent breach of the peace;
(3) the decisions to arrest the claimants were a wholly disproportionate response to any perceived threat;
(4) the defendant unlawfully fettered the discretion of his officers on the ground by instructing them (via commanding officers) to pre-emptively arrest the claimants;
(5) the defendant's actions in arresting and detaining the claimants breached their rights under arts. 5, 8, 10, 11 and 14 ECHR.
The M claim relates to a youth, aged 16 at the material time, who was stopped, searched and arrested in central London and was detained for nine hours before being released without charge. He complains about the stop and search and the arrest, and also about the taking of his DNA, fingerprints and photographs at the police station and the subsequent refusal to destroy that material. The grounds of claim are:
(1) (a) the defendant operated an unlawful policy or practice on the ground and/or exercised his powers for an ulterior motive, in pre-emptively stopping and searching and arresting those (including the claimant) whom he suspected of seeking to express anti-monarchist views, without proper regard to the lawful preconditions for such searches and arrests; (b) the defendant operated an impermissibly low threshold of tolerance for the public expression of anti-monarchist views;
(2) the stop and search of the claimant was unlawful in that (a) it was conducted pursuant to an unlawful policy or practice on the ground and/or it was an exercise of police powers for an ulterior purpose, namely the suppression of embarrassing, unpopular or unwelcome (but not unlawful) protest, (b) there were no reasonable grounds for suspecting the claimant to be in possession of items to be used for destroying or damaging property; (c) it was contrary to his rights under arts. 5, 8, 10, 11 and 14 ECHR;
(3) the claimant's arrest was unlawful in that (a) it was conducted pursuant to an unlawful policy etc., (b) there were no reasonable grounds for suspecting the claimant to be committing or to be about to commit a criminal offence, (c) there were no reasonable grounds for believing that it was necessary to arrest the claimant for any of the reasons set out in s.24(5) of the Police and Criminal Evidence Act 1984 ("PACE"), (d) the decision to arrest the claimant was disproportionate, (e) it was contrary to his rights under arts. 5, 8, 10, 11 and 14 ECHR;
(4) the taking of the claimant's DNA, fingerprints and photographs was unlawful in that (a) the power to take such material is contingent on there having been a lawful arrest but the claimant's arrest was unlawful for the reasons given above, (b) the defendant operated a blanket policy in respect of the decision to take the claimant's material and failed to exercise any discretion, (c) if, contrary to the claimant's primary submission, the defendant exercised discretion in deciding to take the claimant's material, the exercise of that discretion was Wednesbury unreasonable and contrary to the claimant's rights under art. 8 ECHR;
(5) the refusal to destroy the claimant's DNA, fingerprints and photographs is unlawful in that (a) the power to retain such material is contingent on there having been a lawful arrest, (b) the defendant has failed to give any or any proper consideration to the claimant's request that his material be destroyed, (c) if, contrary to the claimant's primary submission, the defendant exercised discretion in deciding to retain the claimant's material, he did so in accordance with unlawful guidance.
The Pearce claim relates to two claimants, Hannah Pearce and Shirin Golsirat, who were living at the material time at...
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