R (Laporte) v Chief Constable of Gloucestershire Constabulary

The common-law power to prevent a future breach of the peace arises only where a constable reasonably apprehends that a breach is imminent. This threshold applies to arrest and to less intrusive preventive action. A general assessment of reasonableness cannot replace it.

Once the threshold is met, the police may take only measures reasonably necessary and proportionate to prevent the breach. Restrictions on peaceful expression and assembly must be prescribed by law and no more extensive than the legitimate aim requires. Peaceful demonstrators do not lose their rights because others may later act violently. Indiscriminate restraint is unlawful where less restrictive measures remain available.

The claimant was a peaceful anti-war protester travelling by coach to a lawful demonstration at RAF Fairford. After searching three coaches near Lechlade and finding a small number of suspect items, the police prevented almost all the passengers from proceeding and forcibly returned them to London.

The Divisional Court, in [2004] EWHC 253 (Admin), held that preventing the coaches from proceeding was lawful but that the enforced return to London was unlawful. The Court of Appeal, in [2004] EWCA Civ 1639, upheld both conclusions.

R (Laporte) v Chief Constable of Gloucestershire Constabulary concerned whether the common law permitted preventive action before a breach of the peace was imminent, whether indiscriminate action against peaceful passengers was justified, and whether the interference complied with articles 10 and 11 of the European Convention.

1. Disposition. The House unanimously allowed the claimant's appeal and dismissed the Chief Constable's cross-appeal. It declared unlawful both the prevention of the claimant's onward journey and her enforced return to London. Any ancillary relief was remitted to the Divisional Court.

2. Common-law threshold. Lord Bingham gave the leading speech. Lord Rodger, Lord Carswell, Lord Brown and Lord Mance agreed that preventive power arises only when a breach of the peace is reasonably apprehended to be imminent or about to occur. The requirement applies equally to arrest and action short of arrest. The courts below had erred by adopting a sliding scale under which lesser restraint could be imposed at an earlier stage. Imminence is contextual and does not require violence within seconds or minutes, but the threatened event must be in the near future.

3. Application. Lord Bingham held that the police commander had expressly concluded that no breach was imminent at Lechlade. Extensive arrangements remained available at Fairford to control the demonstration and identify actual troublemakers. The police therefore had no common-law power to prevent the coaches from continuing. Lord Rodger and Lord Mance reached the same conclusion. The action was premature and created the very difficulty relied upon to justify indiscriminate restraint.

4. Necessity and proportionality. Lord Bingham and Lord Rodger held that articles 10 and 11 protected the claimant's peaceful participation in the demonstration. The police bore the burden of showing that their interference was prescribed by law and no more than necessary to prevent disorder. Known troublemakers could have been targeted, or the coaches could have proceeded under the substantial policing arrangements already established. Lord Carswell agreed that the least restrictive course had not been demonstrated. The blanket restriction was therefore disproportionate.

5. Peaceful persons and anticipated disorder. Lord Rodger accepted that, in an exceptional case, necessary preventive action may affect persons who are not themselves threatening violence. Lord Brown and Lord Mance emphasised that this possibility, if available, is confined to cases where no other means can preserve the peace. The police must ordinarily protect lawful protest and direct their measures against those threatening disorder. Any wider power to prevent innocent citizens attending demonstrations would require legislation.

1. House of Lords: In R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55 , the House unanimously allowed the claimant's appeal, dismissed the Chief Constable's cross-appeal and declared both challenged courses of police action unlawful.
2. Court of Appeal: In [2004] EWCA Civ 1639 , reported at [2005] QB 678 , the court dismissed both the claimant's cross-appeal concerning prevention of the onward journey and the Chief Constable's appeal concerning the enforced return.
3. Divisional Court: In [2004] EWHC 253 (Admin) , reported at [2004] 2 All ER 874 , the court rejected the challenge to preventing the coaches from proceeding but held the detention and enforced return to London unlawful.