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

Police may take reasonable preventive measures short of arrest where a senior officer honestly and reasonably apprehends a real risk of a breach of the peace in close proximity in time and place. The required degree of imminence may be less than that required for arrest. Measures must remain reasonable, proportionate and sufficiently discriminating, having regard to practical realities and the number of persons involved.

Short-lived physical restraint to prevent an immediately apprehended breach may fall outside Article 5. Detention lasting substantially beyond that immediate danger requires arrest and production before a magistrate. Forced detention and return lasting two and a half hours therefore exceeded the lawful power.

The claimant travelled by coach from London to a demonstration at RAF Fairford. Gloucestershire police stopped three coaches near Lechlade, searched them under sections 60 and 60AA of the Criminal Justice and Public Order Act 1994, seized items and ordered the coaches to return to London under police escort.

The claimant accepted the legality of the searches and seizures but challenged the prevention of her attendance, her detention and her enforced return. She relied on Articles 5, 10 and 11 of the Convention and sought declarations and damages. The court considered whether the preventive action was lawful and proportionate, and whether the common-law power to prevent a breach of the peace authorised her detention during the return journey.

1. Judicial review and intensity of review. Judicial review was an appropriate procedure. The court accepted the defendant’s untested evidence because its factual accuracy and good faith were not challenged. Because Convention rights were engaged, the court conducted rigorous and intensive review, including close examination of the factual justification for the police decision.
2. Preventive measures short of arrest. A constable may take reasonable steps to prevent a breach of the peace. Following Moss v McLachlan [1985] IRLR 76, the relevant features were an honest and reasonable belief in a real risk of breach, close proximity in time and place, reasonable preventive measures, and an assessment of imminence by reference to the action proposed. Practicality and the number of persons involved may also be relevant. The imminence required for preventive action may be less than that required for arrest.
3. Chief Superintendent Lambert reasonably and honestly believed that allowing the coaches to proceed would lead to breaches of the peace. He was entitled to prevent the coaches proceeding. Although individualised decision-making is required in principle, it was impractical in the circumstances to discriminate between a large number of uncooperative passengers. That part of the claim failed.
4. Detention and Article 5. Article 5(1)(b) did not authorise detention to secure compliance with a general negative obligation not to breach the peace. Article 5(1)(c) did not apply because the detention was not for the purpose of bringing the passengers before a competent legal authority. The common-law power recognised in Albert v Lavin [1982] AC 546 permits only transitory detention to prevent an immediately apprehended breach. The person must be released unconditionally once the immediate danger has passed, unless arrested and taken before a magistrate.
5. The claimant’s enforced return was unlawful because no immediately apprehended breach by her justified transitory detention; detention for approximately two and a half hours went far beyond transitory detention; and the detention was wholly disproportionate. A declaration was granted and the claim was entitled to proceed to an inquiry as to damages.

This was a first-instance judicial review claim in the Administrative Court. The court rejected the challenge to preventing the coaches proceeding to Fairford, but granted relief concerning the detention and enforced return to London.