Hicks & Ors, R (on the application of) v Commissioner of Police for the Metropolis

Pre-emptive police action to prevent an imminent breach of the peace is exceptional and requires a reasonable apprehension that violence or harm is likely in the near future. The assessment is fact-sensitive and may take account of intelligence supplied by other officers. Even where the threshold is met, the police must take no more intrusive action than necessary. An instruction from a senior officer does not itself invalidate an arrest, provided the arresting officer has the required belief and reasonable grounds. A search warrant may be timed to secure a collateral policing advantage, provided the search remains within the warrant’s authorised purpose. Failure to return an executed warrant does not retrospectively invalidate an otherwise lawful search.

The Divisional Court considered four linked judicial review claims arising from policing before and during the Royal Wedding on 29 April 2011. The claimants challenged arrests for breach of the peace, a stop and search and arrest under the Police and Criminal Evidence Act 1984, the taking and retention of biometric material, and searches carried out under warrants.

The central issues were whether the police operated an unlawful policy against anti-monarchist protest; whether individual arrests were based on an imminent breach of the peace and were proportionate; whether senior officers unlawfully fettered arresting officers’ discretion; and whether the searches exceeded the warrants or were motivated by an improper purpose.

1. Unlawful policy or practice. The formal strategy documents properly distinguished peaceful protest from unlawful disruption and required lawful, proportionate action. The evidence did not establish an unlawful policy or an impermissibly low threshold of tolerance for protest. All claims based on that alleged policy failed.
2. Breach of the peace. Following R (Laporte) v Chief Constable of Gloucestershire Constabulary, the police may intervene preventively only where they reasonably apprehend that a breach of the peace is imminent. Imminence is judged in context and does not require a prediction of violence within a fixed number of minutes. The officer may rely on information supplied by other officers. On the facts, the arrests of the Hicks claimants satisfied both the subjective and objective requirements.
3. Necessity and proportionality. Arrest was not disproportionate where lesser measures would not reliably have prevented the anticipated violence and constant police supervision was impracticable. A direct instruction from a senior officer did not fetter the arresting officer’s discretion. The relevant question was whether that officer possessed the necessary belief and reasonable grounds.
4. M’s arrest and search. The threshold for reasonable suspicion under section 1 of PACE was low but was satisfied by the circumstances, the marker pens, the image of graffiti and M’s demeanour. Arrest was necessary under section 24(5) to establish his name, prevent damage and permit prompt investigation. The normal practice of taking fingerprints, DNA and photographs after arrest did not prove an unlawful blanket policy.
5. Search warrants. Section 16(8) of PACE confined the search to the purpose for which the warrant was issued, but did not prevent the police from timing a lawful search to obtain a collateral policing advantage. The Camberwell searches remained searches for the goods specified in the warrants. Items discovered incidentally could be seized under section 19. The Sipson warrant was supported by reasonable cause and was not impermissibly wide. A limited search of a wallet exceeded what was reasonably necessary, but was de minimis and justified no relief.
6. Relief and outcome. The court declined to grant specific relief concerning retention of M’s DNA, fingerprints and photographs, applying the approach in R (GC) v Commissioner of Police of the Metropolis and R (RMC and FJ) v Commissioner of Police of the Metropolis. All four claims were dismissed.

First-instance judgment on four linked judicial review claims. All claims were dismissed.