McClure & Anor, R (on the application of) v The Commissioner of Police of the Metropolis

Police may take preventive crowd-control action at common law where they reasonably apprehend an imminent breach of the peace. Imminence is context-sensitive, but the action must be necessary, reasonable and proportionate. Containment affecting an otherwise largely peaceful crowd can be lawful where the officer reasonably apprehends that a nearby violent crowd will imminently join it, and containment is reasonably believed to be the only or least intrusive effective means of prevention. The court must assess the officer’s belief objectively by reference to information known and perceived at the time, without hindsight. It must not substitute its own view of when the breach would occur.

The claimants sought judicial review of strategic Metropolitan Police decisions during two G20-related demonstrations. The Divisional Court held that containment of the Climate Camp and the associated push north were unlawful, while rejecting other complaints: [2011] EWHC 957 (Admin), [2011] HRLR 24.

The Commissioner appealed those two findings. The Court of Appeal considered whether the officer reasonably apprehended an imminent breach of the peace from the anticipated mixing of the largely peaceful Climate Camp with disorderly Royal Exchange demonstrators, whether containment was necessary and proportionate, and whether the push north was lawful.

1. Appeal allowed. The Divisional Court had applied the wrong approach when assessing whether a breach of the peace was imminent. Its operative reasoning formed its own view of imminence rather than assessing whether the responsible officer’s apprehension was reasonable in light of what he knew and perceived at the time.
2. At common law, preventive action requires a reasonable apprehension of an imminent breach of the peace where no breach has yet occurred. Imminence is judged in context, rather than by a fixed number of minutes. The action must be necessary, reasonable and proportionate. Where peaceful third parties are affected, the police must reasonably believe that no other, less intrusive means will prevent the imminent breach. These principles were derived from R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55 and applied consistently with Austin v Commissioner of Police of the Metropolis [2007] EWCA Civ 989.
3. On the facts, the officer’s apprehension was reasonable. The Climate Camp was not wholly peaceful, the adjacent Royal Exchange demonstration had involved serious disorder, the crowds were substantial and close together, and the officer reasonably feared that violent elements would mix when the Royal Exchange crowd was dispersed. The anticipated breach was therefore imminent in the relevant contextual sense.
4. Containment was the least drastic available means of preventing the feared serious breaches of the peace. The fact that the Climate Camp’s conduct alone did not justify containment did not prevent containment being justified by the immediate risk created by the combination of the two crowds.
5. The push north was a reasonable and proportionate implementation of lawful containment. The contrary conclusion depended on the erroneous conclusion that containment itself was unjustified, and the decision had been made by the sub-commander whose unchallenged evidence explained its purpose.
6. The court’s discussion of the relationship between common-law containment and Article 5 of the European Convention on Human Rights did not require determination of the Commissioner’s further claimant-specific argument.

1. Court of Appeal (Civil Division) allowed the Commissioner’s appeal and held that the Climate Camp containment and push north had not been shown to be unlawful.
2. Administrative Court (Divisional Court), in [2011] EWHC 957 (Admin), [2011] HRLR 24, held that the Climate Camp containment and push north were unlawful strategic decisions.