Tipping the balance

The police practice of taking and retaining photographs of demonstrators, and subjecting those photographed to special attention when they had never engaged in any criminal conduct, has given rise to growing concerns (see Solicitors Journal 153/15, 21 April 2009).

Another aspect of policing of demonstrations which likewise attracts controversy is the stopping and detaining of large numbers of demonstrators so as to prevent them approaching the intended venue of their demonstration.

This practice would seem an unlawful interference with the traditional common law right of citizens to pass along the highway, as well as with international human rights provisions about freedom of assembly (Art.21 of the International Covenant on Civil and Political Rights (ICCPR); Art. 11 ECHR). This was indeed thought to be so until Moss v McLachlan [1985] IRLR 76, which upheld the legality of the police practice, during the 1984 miners' strike, of stopping coach-loads of would-be picketers miles from the mine they planned to picket, on the ground that they were likely to commit a breach of the peace on arrival at their destination. This decision legitimised a practice which in one case led to coaches being stopped by police and forced to turn around in a completely different part of England from their intended destination.

Stopped, searched, sent back

Moss was effectively overruled in 2006 by the House of Lords in R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55 (full story at Solicitors Journal 150/48, 15 December 2006), which concerned a protest against the Iraq war outside RAF Fairford, Gloucestershire. At Lechlade, near Fairford, a chartered coach of demonstrators was stopped by police and searched. A small number of items found on board were suitable for illegal protests. Although there was no link between the passengers other than their intended attendance at the demonstration, the police required all of them to return to London on the coach '“ some 80 miles '“ flanked by a police escort. No passenger was allowed to disembark until the coach arrived in London, even to use the toilet, thereby causing distress and embarrassment to some passengers.

Ms Laporte, a person of good character on the coach who had no connection with direct action protest groups, challenged this decision by way of judicial review. The chief constable defended his action on the ground that if the coach had been permitted to proceed to Fairford, a breach of the peace would have occurred because of the presence on the coach of members of the Wombles '“ a violent direct action group.

The Divisional Court and Court of Appeal agreed that the police action in forcing the coach to return to London was disproportionate and unlawful. However, the House of Lords went further in holding that the police refusal to permit the coach to proceed from Lechlade to Fairford was also unlawful. Noting that its decision in Albert v Lavin [1982] AC 546 had established that the power of arrest to prevent a breach of the peace could only lawfully be exercised where a breach of the peace was thought to be 'imminent', the lords concluded that, because the chief constable had admitted that there was no risk of a breach of the peace immediately on arrival at Fairford, there was no legal ground for refusing to permit the coach to proceed there.

Laporte is an important decision liberalising this area of the law and giving additional protection to peaceful demonstrators. Some of this protection may however be lost following the recent House of Lords' decision in Austin v Metropolitan Police Commissioner [2009] UKHL 5 (full story at Solicitors Journal 153/4, 3 February 2009).

Kettled by police

Austin was a false imprisonment action arising from the police practice which has recently become known as 'kettling', whereby demonstrators are retained within a police cordon and not permitted to leave.

This type of detention can arise in two situations. The first involves express arrest of demonstrators, as happened in Hong Kong (whose public order law and police practice closely follow the English model) during a World Trade Organisation meeting on 18-19 December 2005, when police, after an attempt to divert the route of a large demonstration by means of loudhailers in reliance on a statutory power had failed, purported to arrest the entire demonstration and kept all members of it cordoned in the road with no toilet facilities for some eight hours before taking them to police stations for processing and in some cases charging with public order offences (all ultimately dismissed '“ see HKSAR v Yun Il-Kwan, 30 March 2006).

Austin, however, concerned the second situation, where a power of arrest (which entails telling the arrested person what they are being arrested for) is not invoked, but the members of the demonstration are simply detained inside a police cordon for a lengthy period.

This practice has so far been extremely rare. Austin involved detention of demonstrators inside a cordon at Oxford Circus on 1 May 2001, and the Court of Appeal noted in its judgment in 2007 that there had been no comparable case before or since. The demonstration was moreover one which was at times violent. The demonstrators represented a variety of causes, but included groups intent on looting shops in Oxford Street. The court found that some 40 per cent of those detained inside the cordon were potentially likely to commit a breach of the peace. The demonstrators did not have any identifiable organisers and the prior notification requirement in s.11(7) of the Public Order Act 1986 had not been complied with. There were other large groups of demonstrators, including violent demonstrators, outside the police cordon. In these circumstances the police argued that they had no alternative but to detain those detained inside for a period of about seven hours, and this surprising contention was accepted at trial by Tugendhat J.

Around 400 of those caught within the police cordon were individually released, including mainly people who were not demonstrators and people who had been taken ill. However, Ms Austin's request to leave after two hours inside the cordon, so that she could collect her baby from a crèche, was refused. Ms Austin was agreed to have been a wholly peaceful demonstrator against globalisation. A second claimant, Mr Saxby, was not a demonstrator but a visitor to London who had been accidentally caught within the cordon, had asked to be allowed to leave but was also refused permission.

Justifiable actions

An oddity in the case was that neither claimant was able to identify the officers who had refused them permission to leave. As individual police officers in the cordon had discretion to permit individuals to leave, the absence of any indication of who the officers were who had refused permission greatly weakened the claims.

The judge accepted police evidence that in the volatile situation the police were facing it was impossible for them to distinguish between peaceful and violent demonstrators. He therefore held that the police had reason to believe that all those detained within the cordon were likely to commit breaches of the peace and that they were therefore entitled to detain them.

Between the first instance hearing and the Court of Appeal hearing, the House of Lords judgment in Laporte was handed down. Following Laporte, the Court of Appeal in Austin did not accept that the police had reasonable grounds to expect an imminent breach of the peace on the part of all persons within the cordon or on the part of Ms Austin or Mr Saxby. However, it upheld the judgment on the ground that necessity required the police to act as they had done in order to fulfil their duty to preserve the peace. This conclusion was upheld by the House of Lords.

The situation faced by the police on 1 May 2001 was an abnormal one far removed from most demonstrations. The fact remains that Ms Austin, who had committed no offence, was detained for seven hours in the rain without access to water, food, toilet facilities or shelter.

The Austin judgments emphasise police concern that the crowd situation threatened public safety as well as public order, with references to the death of Kevin Gately in Red Lion Square in 1974 and to the Hillsborough disaster. However, Lord Neuberger went so far as to compare the situation with detention of innocent persons by police in order to protect their safety while a deranged gunman was on the loose, and stated that people who went on a demonstration should be deemed to consent to detention in the street for seven hours if police crowd control arrangements necessitated it.

Such unreasonable 'deemed consent' would emasculate the right to demonstrate. While forced detention without arrest for an hour might in extreme circumstances be justifiable, detention for seven hours, so that demonstrators are reduced to using the toilet in the street, is not. The Neuberger approach would also logically mean that not only demonstrators but anyone who happened to be in the wrong place at the wrong time could expect to be detained in the street for hours if this suited police operational crowd control requirements. This approach does not strike a reasonable balance between the needs of public order and the rights of the citizen. It is to be hoped that at least this part of the House of Lords' judgment is rejected by the European Court of Human Rights.