By Stephen Grosz, Bindman & Partners, London


Coach trip



R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, 13 December 2006



This case related to freedom of political protest. Gloucestershire police had intelligence suggesting that three coaches of demonstrators from London contained members of a direct action group ('the Wombles') who intended to disrupt an anti-war demonstration at RAF Fairford on 22 March 2003.



The three coaches, carrying 120 passengers, were stopped at Lechlade, some 5km away by road.



A search identified eight members of the Wombles and a small number of items - home-made shields, helmets, a can of spray paint and scissors - considered by the police to be inconsistent with peaceful protest. The officer in charge of policing the demonstration recorded that he did not consider there to be an imminent breach of the peace. Nonetheless, the police put all the passengers back on board, sealed the doors and escorted them back to London, refusing to allow them a lavatory stop en route. The courts below had held that the police had no power to imprison the demonstrators on the coach and direct their return to London, but that they had acted lawfully in preventing them from continuing their journey to participate in the demonstration.



The House of Lords agreed that the imprisonment was unlawful, but also held that the police had unlawfully interfered with their right to freedom of expression and freedom of association (see articles 10 and 11 of the European Convention on Human Rights). These rights are not absolute, but any restrictions placed on them must be 'in accordance with the law' and 'necessary in a democratic society' for a number of limited objectives, in this case the protection of public order and the rights and freedoms of others (see articles 10(2) and 11(2)). According to the Law Lords, the actions of the police failed to meet these requirements.



The Lords all emphasised the fundamental importance of peaceful protest in a democratic society, and the limited scope the convention allows for prior restraints on freedom of speech. It was common ground that power existed at common law to take action to prevent a breach of the peace that was imminent. But although the police invited them to do so, the judges were unwilling to extend the law to give the police power to take action short of arrest (for example, the action taken) to prevent a breach of the peace that was not imminent.



The police had concluded (rightly) that at Lechlade, no breach of the peace was imminent, so no power of action arose. In turning back the coaches, the police had not acted in accordance with the law and therefore could not rely on articles 10(2) and 11(2).



But even if a breach of the peace had been imminent, the police could still have succeeded in justifying their actions only if they had been able to show that their response was proportionate; this was the effect of the 'constitutional shift' wrought by the Human Rights Act 1998, which created a positive right to freedom of expression and association, subject only to limited exceptions.



Again, the Lords found that they failed this test. First, the police had identified only eight Wombles. They had no reason to believe that any other passengers were Wombles, and the offending items had been confiscated. According to Lords Bingham, Brown and Mance, there was no power to take action against persons from whom no breach of the peace was expected to emanate; and according to all the Law Lords, the action was disproportionate in that it was indiscriminate, taken against the claimant (and others like her) because she was in the company of a small number of people who might, at some time in the future, provoke a breach of the peace. They had not shown why they would have been unable to deal with any breach of the peace that might then arise at Fairford. Therefore, the police had failed to show that the action taken was the least restriction necessary, or the only practicable way of acting, for the purpose of protecting public order.



The significance of this decision lies in the importance that the Lords ascribed to freedom of political protest in a democratic society and the narrowness of the restrictions that they were prepared to allow. From a constitutional point of view, they also reaffirmed that they would resist invitations, from whatever source, to extend the law by judicial legislation, although the clear implication in this case was that no such extension was necessary.



Marching orders



Tweed v Parades Commission for Northern Ireland [2006] UKHL 53, 13 December 2006



Although it also involved a public order context, this case concerned the making of orders for disclosure in judicial review proceedings.



The claimant, a member of the Orange Order, challenged a determination of the Parades Commission as to the route that an Orange Order parade should take in a predominantly Roman Catholic village in North Antrim. The determination severely restricted the route of the parade, in the interests of preserving community relations, and the claimant asserted that these restrictions were a disproportionate interference with his freedoms of expression, association and religion.



In his affidavit explaining the decision, the chairman of the commission summarised various documents - such as police reports and an internal commission note - that he had considered when arriving at his decision. The claimant sought disclosure of the documents.



There is no automatic disclosure in judicial review proceedings, and although a defendant is supposed to respond with his cards face up on the table (on the basis that much of the information will be within his sole control), he is not required to disclose the underlying documentation. The general rule in judicial review had been that disclosure will be ordered only if there is reason to believe that the defendant's summary of the information is either inaccurate or incomplete. The claimant challenged this rule, relying on the context - a Human Rights Act challenge to the proportionality of interference with a convention right - as a reason to depart from this line of authority.



The Law Lords took this opportunity to revisit more generally the rule relating to disclosure in judicial review. They considered that a public authority responding to a judicial review should normally disclose the documentation underlying its decision unless there were good reasons for not doing so.



The document itself is the best evidence of what it says, and any summary risks losing something in terms of completeness or accuracy. Where a document was not exhibited, it should no longer be necessary to show inaccuracy or incompleteness to obtain disclosure. Whether a document should be disclosed should depend on the requirements of the case.



Clearly, the Lords were influenced by the fact that, in considering issues of proportionality, the court is required to engage in a closer factual analysis of the justification for the restrictions (as the Laporte decision illustrated), and in consequence may be more ready to prefer production of the original documentation over the defendant's gloss on it.



But the judges made clear that their decision goes beyond proportionality cases and applies to all judicial review litigation. In each case where disclosure is resisted, the judge should first inspect the disputed documents to determine whether disclosure might affect the outcome of the case. If he concludes it could, he will need to consider questions of redaction if confidentiality is claimed. Once that issue has been determined, he may still need to determine any public interest immunity claim.



The case provides a good illustration of the way in which public law cases decided under the Human Rights Act are having a beneficial effect on other areas of public law.