Moos & Anor, R (on the application of) v Police of the Metropolis

Preventive police action to avert a breach of the peace is lawful only where the apprehended breach is imminent. Imminence is fact-sensitive, but the concept must not be diluted into a mere risk of future disorder. Any action must be necessary, reasonable and proportionate, taken as a last resort, and no more intrusive than required. Police must consider proper advance preparations and available alternatives, particularly where peaceful third parties are affected. Containment of one group may be justified to prevent an imminent breach associated with another group, but only in truly extreme and exceptional circumstances. A later dispersal may be justified where a demonstration unlawfully blocks a major highway.

The claimants sought judicial review of police decisions made during two demonstrations in the City of London on 1 April 2009. The principal challenge concerned the containment of the Climate Camp demonstration in Bishopsgate, imposed while a more violent demonstration at the Royal Exchange was being dispersed. The claimants also challenged release arrangements, the use of force, and conditions imposed under section 14 of the Public Order Act 1986.

The central questions were whether the Climate Camp containment and associated pushing operation were necessary and proportionate responses to an apprehended imminent breach of the peace, and whether the later dispersal of those continuing to block Bishopsgate was lawful.

1. Preventive containment. The common law power to prevent a breach of the peace, read with Article 5 of the Convention, required a reasonably apprehended imminent breach. Imminence was flexible and had to be judged in context, but remained an essential threshold. Preventive action had to be necessary, reasonable and proportionate, used only as a last resort where no other means existed. The stringent approach in Laporte v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105 and the exceptional circumstances recognised in Austin v Commissioner of Police of the Metropolis [2009] 1 AC 564 governed the issue (paras 56–60).
2. The Climate Camp itself had not generated equivalent disorder to the Royal Exchange demonstration. The prospect that some Royal Exchange protestors might later reach or mix with the Climate Camp amounted to a risk, but not an imminent breach sufficient to justify full containment at 7.07pm. The distances and circuitous routes were material. The containment was therefore unlawful, although a temporary northern cordon might have become justified when Royal Exchange protestors actually approached at about 9.30pm (paras 58–60, 64).
3. Alternatives and force. The police should have considered less intrusive measures, including cordons at the relevant side streets. The operation forcing a crowd 20 to 30 metres north was unnecessary and disproportionate. The evidence also showed unduly inflexible release decisions and insufficiently precise instructions and training concerning reasonable force and shield strikes. Those matters did not, however, require declarations in the present judicial review concerning individual incidents (paras 60–62).
4. Later dispersal. The decision to terminate the Climate Camp and clear Bishopsgate under section 14 of the Public Order Act 1986 was justified. The demonstration had continued for nearly 12 hours and those remaining intended to block a major thoroughfare overnight. The police were entitled, if necessary, to use force to clear the highway. Individual excessive-force allegations were matters for individual complaints rather than this judicial review (para 63).
5. The claimants succeeded in establishing that the Climate Camp containment and the pushing operation were unlawful, subject to the later temporary northern containment becoming justified. No declarations were presently made concerning release arrangements or the use of force generally (para 64).