R (on the application of Laporte) v Chief Constable of Gloucestershire

The House of Lords held that the police acted unlawfully in preventing a coachload of protesters travelling to a lawful demonstration where there was no reasonable and bona fide apprehension that a breach of the peace was imminent. The common-law power and duty to prevent a breach of the peace require a reasonably held belief that a breach is imminent; preventive measures short of arrest are not lawfully available where that threshold is not met. The interference with rights of freedom of expression and assembly under articles 10 and 11 of the European Convention was therefore not "prescribed by law" and was disproportionate in the circumstances. The decision explains the relationship between common-law breach-of-the-peace powers and statutory public-order powers (notably the Public Order Act 1986 and the Criminal Justice and Public Order Act 1994).

Background and facts:

• The claimant, a peaceful anti-war demonstrator, travelled by coach from London to attend a demonstration at RAF Fairford on 22 March 2003. Intelligence suggested a hard-core activist element (the "Wombles") might be present and the police had extensive policing plans.
• Three coaches were stopped at a lay-by at Lechlade (some miles from Fairford), searched under section 60 and 60AA Criminal Justice and Public Order Act 1994, and some items were seized. Senior police direction led to the coaches being prevented from proceeding to Fairford and escorted back to London; passengers were prevented from leaving the coaches until arrival in London.

Procedural history and relief sought:

• The claimant sought judicial review challenging (1) the preventive decision to stop the coaches and prevent travel to the demonstration, and (2) the forcible return and effective detention on the coach back to London. Permission was granted. The Divisional Court rejected complaint (1) but upheld complaint (2) ([2004] EWHC 253 (Admin)). The Court of Appeal upheld the Divisional Court ([2004] EWCA Civ 1639; [2005] QB 678).
• The claimant appealed to the House of Lords; the Chief Constable cross-appealed against the finding on complaint (2).

Issues framed:

• Whether the police action at Lechlade preventing travel to Fairford was lawful at common law and compatible with articles 10 and 11 ECHR (including whether such interference was "prescribed by law").
• Whether the common-law power to prevent a breach of the peace is governed by a flexible reasonableness test or requires a reasonable belief of imminence.
• Whether the forcible return / detention on the coach was lawful.

Court's reasoning and disposition:

• The House of Lords analysed the common-law power to prevent a breach of the peace and relevant authorities (including Albert v Lavin, R v Howell, Moss v McLachlan). The court concluded that the threshold for preventive action is a reasonable apprehension that a breach of the peace is imminent; a general test of mere reasonableness does not suffice to permit preventive interference with peaceful demonstrators.
• The House emphasised that parliamentary statutory schemes for regulating processions and assemblies (Public Order Act 1986 etc.) show that wide prior restraints on demonstration are matters for legislation rather than judicial extension of the common law.
• Applying those principles, the House held that the Chief Constable's order to prevent the coaches proceeding to Fairford was not "prescribed by law" and was disproportionate under articles 10 and 11, because no imminent breach was reasonably apprehended at Lechlade and less intrusive alternatives (for example removal of identified troublemakers or allowing coaches to proceed under the existing policing plan) were available.
• The claimant's appeal (challenge to prevention of travel) was allowed and a declaration of unlawfulness granted; the Chief Constable's cross-appeal (seeking to overturn the conclusion on the return/detention) was dismissed, leaving the lower courts' conclusion on detention intact.

Appeal allowed. The House of Lords held that the common-law power to prevent a breach of the peace requires a reasonable and bona fide apprehension that a breach is imminent; police action at Lechlade preventing the claimant proceeding to a lawful demonstration was not "prescribed by law" and in any event was disproportionate under articles 10 and 11 ECHR. The Chief Constable's cross-appeal was dismissed.

Divisional Court (Administrative Court) [2004] EWHC 253 (Admin) (May LJ and Harrison J): rejected challenge to stopping coaches, upheld challenge to detention on return; Court of Appeal [2004] EWCA Civ 1639; [2005] QB 678 (Lord Woolf CJ, Clarke and Rix LJJ): upheld Divisional Court on prevention issue and addressed detention; House of Lords [2006] UKHL 55 (this judgment): appeal allowed on prevention issue, cross-appeal dismissed.