Laporte, R (on the application of) v Gloucestershire Constabulary & Ors

The police may take reasonable preventive action at common law where a breach of the peace is reasonably apprehended. The required imminence depends on all the circumstances. A real risk in close proximity is not a separate or conflicting test, and greater distance or time usually calls for more restrained action. Preventive action may affect people not individually shown to intend unlawful conduct where distinguishing them is impracticable, but it must remain necessary and proportionate. Compelling a group to return under police escort, preventing them from leaving their coaches for about two and a half hours, was a disproportionate last-resort measure. Less intrusive steps, including an order not to proceed backed by possible arrest, were available. Articles 10 and 11 permit proportionate action to prevent disorder.

The claimant travelled by coach to an anti-war demonstration at Fairford air base. Following intelligence concerning hard-line activists and searches under the Criminal Justice and Public Order Act 1994, a senior police officer concluded that passengers were likely to cause a breach of the peace. He prevented the coaches from proceeding and ordered their return to London under police escort.

On judicial review, the Administrative Court held that preventing the claimant from proceeding to Fairford was lawful, but that her enforced return was unlawful. The Chief Constable appealed and the claimant cross-appealed. The central issues were the imminence required for preventive action, whether action could be taken against a group without individual differentiation, and whether the enforced return was justified and proportionate at common law and under the ECHR.

Disposition. The Court, giving a collective judgment, dismissed both the Chief Constable’s appeal and the claimant’s cross-appeal. The declarations made by the Administrative Court therefore stood: preventing the claimant from proceeding to Fairford was lawful, but forcibly returning her from Lechlade to London was unlawful.

1. Common-law power. The police share with members of the public a common-law duty to take reasonable steps to prevent an apprehended breach of the peace. Appropriate steps may include detention in suitable circumstances: Albert v Lavin [1982] A.C. 546. The rights protected by Articles 10 and 11 of the ECHR are fundamental but qualified. Restrictions and common-law powers must be scrutinised for legality, reasonableness and proportionality.
2. Imminence. Arrest must be distinguished from preventive action short of arrest, including temporary detention. Whether a breach is sufficiently imminent depends on all the circumstances. The real-risk and close-proximity approach in Moss v McLachlan [1985] I.R.L.R. 76 is consistent with the imminence requirement. Greater distance or time normally requires more restrained action. On the facts, directing the passengers to reboard and instructing the driver not to proceed to Fairford was necessary and proportionate.
3. Group action. Preventive action is justified by the need to prevent the apprehended breach, rather than proof that every affected person has committed an offence. Where the group is uncooperative and individual identification is impracticable, action may risk affecting an innocent person, provided the response remains reasonable and proportionate. There was ample evidence supporting the officer’s apprehension and decision.
4. Compelled return. Escorting the coaches back to London, while preventing passengers from leaving them for approximately two and a half hours, was a substantial interference with individual liberty. Such action should be a matter of last resort. Less intrusive alternatives were available, including a lawful order to the drivers not to proceed, monitoring compliance and warning that arrest would follow disobedience. The compelled return was therefore disproportionate and unjustifiable at common law. Voluntary compliance with such an order would have been materially different.
5. Article 5. The lay-by measures did not constitute detention at common law or under Article 5. The court declined to determine further whether Article 5 applied to the compelled return, because the appeal was resolved under domestic common law.

• Court of Appeal (Civil Division) dismissed the Chief Constable’s appeal and the claimant’s cross-appeal. The Administrative Court’s declarations stood.
• Administrative Court on 19 February 2004 declared the enforced return unlawful, refused a declaration that preventing the claimant from proceeding to Fairford was unlawful, and adjourned the issue of damages pending the appeal.