The Queen (on the Application of Hannah McClure and Joshua Moos) v The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls |
| Judgment Date | 19 January 2012 |
| Neutral Citation | [2012] EWCA Civ 12 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2011/1253 |
| Date | 19 January 2012 |
[2012] EWCA Civ 12
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sir Anthony May PQBD and Sweeney J
CO/6790/2009
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Hughes
and
Lord Justice Sullivan
Case No: C1/2011/1253
Monica Carss-Frisk QC and David Pievsky (instructed by the Metropolitan Police) for the Appellant
Michael Fordham QC and Iain Steele (instructed by Bindmans) for the Respondent
Hearing dates: 13 and 14 December 2011
Introductory
This is the judgment of the court (to which all members have made substantial contributions) on an appeal brought by the Commissioner of Police of the Metropolis ('the Commissioner') against a decision of the Divisional Court (Sir Anthony May PQBD and Sweeney J). By that decision, the Divisional Court decided that, in certain respects, the crowd control carried out by the Metropolitan Police in connection with two demonstrations (known, at least in these proceedings, as the Royal Exchange demonstration and the Climate Camp), which took place in the City of London on Wednesday, 1 April 2009, did not constitute 'lawful police operations'— [2011] EWHC 957 (Admin), [2011] HRLR 24, para 64.
The decision was made in the context of judicial review proceedings brought by the claimants, who were both involved in the Climate Camp, to challenge a number of the policing decisions made in connection with the handling of the crowd which attended the two demonstrations. From an early stage it has rightly been accepted that judicial review proceedings in this case are appropriate only to the consideration of the strategic decisions. If there are allegations of excessive force or other tortious behaviour against individual, or groups of, police officers, in the course of the operations consequent on those decisions, those allegations must be made in ordinary Queen's Bench Division actions and their rights or wrongs are not the concern of this case.
The Divisional Court, which heard the evidence of Chief Superintendent Johnson, the officer in overall charge of the policing operation, rejected a number of complaints about his strategic decisions but, as mentioned, it upheld two. The Commissioner appeals in respect of the two complaints which were upheld. The claimants do not pursue those which were rejected. In the result, the principal outstanding issue has been whether, on the facts of this case, a decision to deploy the tactic of containment (or 'kettling' as it is sometimes, somewhat derogatorily known) was or was not lawful when applied to one part of the day's demonstrations.
Like several other protests which took place on 1 or 2 April 2009, the two demonstrations were held against the background of a G20 summit held in London on 2 April. There was a degree of co-ordination between some of those who were involved with those demonstrations and protests, via websites and no doubt in other ways. The Royal Exchange demonstration was targeted on an area outside the Royal Exchange and the Bank of England, and had been styled the 'Financial Fools' protest. The Climate Camp was established outside the Climate Exchange Building in Bishopsgate, about a quarter of a mile away, and had been styled the 'Fossil Fools' protest.
The 'Fossil Fools' protest had its origins in earlier environmental protest camps under the same title; police intelligence suggested that those had involved small numbers and had not become violent. The two demonstrations had each been advertised in various places including a website styled 'G20 Meltdown'. Neither demonstration had any identifiable leader with whom the police could have had discussions. The police had asked in advance where in Bishopsgate the Climate Camp would be set up but had been given no answer.
By the afternoon of 1 April, Mr Johnson estimated that there were between 4000 and 5000 people attending each of the two demonstrations. Those numbers were significantly higher than police intelligence had anticipated, and reserves had to be called up. It was an ordinary working day for those employed in London or visiting on business; there were also tourists to consider.
The Royal Exchange demonstration was disorderly to the point of serious violence. The Climate Camp was markedly less disorderly; violence was only intermittent and significantly less serious than at the Royal Exchange. Some of those who took part in the Climate Camp brought tents and cooking equipment and were intent on staying the night. The Camp completely blocked Bishopsgate, a four lane highway running roughly north-south and constituting a major thoroughfare into and out of the City. The Camp's southern edge was a barricade erected by the protesters and formed of bicycles and other metallic objects.
Shortly after midday, Mr Johnson decided that it had become necessary for the crowd at the Royal Exchange to be managed by containing it—i.e. by stationing a police cordon at each of the several possible points of egress. There has never been any suggestion in these proceedings that this decision was unlawful; there is no challenge to the police's perception that it was necessary and proportionate in order to prevent the spread of breaches of the peace. The containment was followed in the evening by a progressive dispersal of the Royal Exchange demonstration, which was accomplished whilst public transport was still running. That again is not alleged in these proceedings to have been an unlawful or improper procedure.
Mr Johnson believed that the dispersal would give rise to the real likelihood of an imminent breach of the peace if, as he judged likely, the two crowds then mingled, particularly if some of the violent elements from the Royal Exchange demonstration made their way to the Climate Camp or were joined by people from it. Accordingly, he decided that the crowd at the Climate Camp should be contained at the time of the dispersal of the Royal Exchange demonstration. As part of the execution of the Climate Camp containment, the local sub-commander deployed a line of policemen physically to move the crowd's southern edge and barricade some 25 metres up Bishopsgate so as to remove the possibility of ingress to or egress from the Climate Camp via two alleyways, one on either side of Bishopsgate and running east and west from it; this has been labelled 'the push north'.
It is these two linked actions, the Climate Camp containment and the push north, which the Divisional Court held were unlawful, and which are now the subject of this appeal. It is appropriate to describe the evidence relating to the decision to contain the Climate Camp and the decision to push north in more detail, as it is crucial to the outcome of this appeal.
The relevant facts in more detail
We gratefully take the detailed relevant history from the full and careful judgment of the Divisional Court.
Mr Johnson, who was, as mentioned, responsible for the policing of the two demonstrations, travelled between them, and also to and from a command headquarters. Just after midday, he decided to contain the Royal Exchange demonstration, which had, according to his contemporaneous log, become 'highly excitable' and threatened to cause 'serious injury', and appeared to be likely to result in 'groups running amok in the City of London, damage to property + people attacked'. Containment did, to a substantial extent, if not completely, achieve its end in the sense of containing the crowd, but it did not prevent further violence from the Royal Exchange demonstration during the course of the day. That violence included an attack on a branch of the Royal Bank of Scotland in Threadneedle Street (which was looted and set on fire), setting off of smoke bombs, throwing of missiles, and the occupation and damaging of an unoccupied building.
As at 12.35, around the time it became necessary to contain the Royal Exchange crowd, the Climate Camp was reported to Mr Johnson as constituting a large, but not hostile, crowd blocking Bishopsgate. In contradistinction to the position outside the Royal Exchange, he decided not to contain the Climate Camp at that stage, but rather to put in place loose 'filter cordons' at either end of the crowd, to prevent it from spreading further. Such filter cordons allowed people to pass through in small numbers. Later in the day one officer, apparently at the centre of the crowd, noted that there was a 'party atmosphere' at the Climate Camp, although that was not reported to Mr Johnson. The Climate Camp was not, however, entirely free from violence. At 13.30 it was reported that the crowd had greatly increased in size, that bottles and coins were thrown at the police officers, and that three police carrier vehicles had been damaged ('wrecked' was the description subsequently used by Mr Johnson in his evidence). Some eighteen minutes later, it was reported that sections of the crowd were putting on masks, a sign that disorder was possibly being contemplated. Mr Johnson had relayed to him the opinion of his local sub-commander, Chief Inspector Dale, that the loose cordons would not be likely to maintain complete control, at least if the situation were to worsen.
Mr Johnson decided, however, that containment ought not, at that stage, to be ordered, on the basis that that decision would be reconsidered if necessary. His contemporaneous log recorded: 'Decided...
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