Police - Powers - Police containing protesters at demonstration

R (on the application of Castle and others) v Commissioner of Police for the Metropolis: QBD (Admin) (Lord Justice Pitchford, Mr Justice Supperstone): 8 September 2011

In November 2010, the defendant police commissioner received notification of a public procession and applications in respect of demonstrations contributing towards a ‘national student walkout’ on 24 November (the event). The defendant’s senior police officers who were responsible for policing major events were designed as gold, silver or bronze commander, depending on their role. On 23 November, the silver commander who was to be in tactical command of the event, CSJ, held an intelligence briefing.

It was not known whether containment, a technique used for crowd management, would be required in policing the event but it was found to be necessary to make plans based on the contingency that it might.

On the morning of 24 November CSJ gave instructions that if it was necessary to authorise containment, ‘vulnerable people’ should be taken or let out. It was thought that some schools had been targeted by student groups, encouraging a walkout from schools, and school liaison officers had been asked to report in advance any school walkouts, but no specific information had been received that children would be attending. By midday a very large number of protesters had gathered in Trafalgar Square and appeared to be planning to move down Whitehall towards Parliament Square.

CSJ authorised the use of containment of protesters in Whitehall. He noted that the group had become more and more violent and unruly throughout the day. Containment was regarded as the only viable option to prevent crime and further breaches of the peace from occurring.

At 1.02pm, the containment was reported to be complete. A bronze commander was instructed to identify vulnerable persons and his principal responsibility was for crowd safety and protection of vulnerable people within the containment. Attempts were subsequently made to identify and disperse young and vulnerable people. By 3.10pm, it was intended that release from the containment would take place at 4pm. CSJ ordered that those leaving the containment should be searched for weapons and arrests made for possession of any stolen property.

However, incidents of violence and disorder continued throughout the afternoon and officers were concerned that there were many people within the containment who had committed serious crimes. Dispersal was also delayed by a sit-down protest on Bridge Street.

At 7.26pm a statement was released by a gold commander, stating that they were endeavouring to disperse people from the containment area as quickly as possible. He emphasised that many of the youngest and vulnerable had been released a long time ago and those remaining needed to be searched and spoken to by officers.

The claimants were between 14 and 16 years of age and were among those contained in Whitehall. One of the claimants was eventually released from the containment at 7pm and the other two claimants at about 8-8.30pm. The claimants applied for judicial review of the decision to ­contain them.

They submitted that: (i) the defendant’s decision to contain and, therefore, to detain children constituted a breach of his duty under section 11 of the Children Act 2004 to safeguard and promote the welfare of children, rendering the containment unlawful; (ii) in further breach of his duty, the defendant had detained them for an excessive period of time and for the unlawful purpose of carrying out searches under section 60 of the Criminal Justice and Public Order Act 1994, and/or for the purpose of making arrests for offences allegedly committed during the demonstration, thus, the duration of the detention was unlawful; and (iii) accordingly, the defendant had exceeded his common law power and acted in breach of their rights under, among other things, article 5 of the European Convention on Human Rights.

The defendant submitted that the dispersal had been delayed due to violence taking place outside the containment; efforts to identify and release the vulnerable had been constrained by the continuing need to preserve public order and protect the public. The application would be dismissed.

(1) The chief officer’s statutory obligation under section 11 of the Act was not confined to training and dissemination of information. It was to ensure that decisions affecting children had regard to the need to safeguard them and to promote their welfare. That did not mean that the duties and functions of the police had been redefined by section 11. The obligation of chief officers of police was ‘to carry out their existing functions in a way that took into account the need to safeguard and promote the welfare of children’.

The impact which that duty would have on the performance of a function would depend to a significant degree on the function being performed and the circumstances in which it was being performed. A police officer would not be deterred from performing his duty to detect or prevent crime just because a child was affected but when he did perform that duty he had to, as the circumstances required, have regard to the statutory need.

It was established law that before preventative action could be justified, a breach of the peace had to be imminent in the sense that it was about to happen. Second, the police had to take no more intrusive action than that which appeared necessary to prevent it.

Where a breach of the peace was taking place, or was reasonably thought to be imminent, before the police could take any steps which interfered with or curtailed in any way the lawful exercise of rights by innocent third parties, they had to ensure that they had taken all other possible steps to ensure that the breach, or imminent breach, was obviated and that the rights of innocent third parties were protected.

The taking of all other possible steps included, where practicable, but was not limited to ensuring that proper and advance preparations had been made to deal with such a breach, since failure to take such steps would render interference with the rights of innocent third parties unjustified or unjustifiable. 

Where, and only where, there was a reasonable belief that there were no other means whatsoever, whereby a breach or imminent breach of the peace could be obviated, the lawful exercise by third parties of their rights might be curtailed by the police. That was a test of necessity which could only be justified in truly extreme and exceptional circumstances – and the action taken had to be both reasonably necessary and proportionate.

In respect of article 5 of the European Convention on Human Rights, there was room, even in the case of fundamental rights as to whose application no restriction or limitation was permitted by the convention, for a pragmatic approach to be taken which took full account of all the circumstances. Any steps that were taken had be resorted to in good faith and had to be proportionate to the situation which had made the measures necessary.

If those requirements were met, it would be proper to conclude that measures of crowd control that were undertaken in the interests of the community would not infringe the article 5 rights of individual members of the crowd whose freedom of movement was restricted by them (see [51], [53], [56]-[57], [61] of the judgment).

In the present case, the defendant, through his decision-maker CSJ had owed a statutory duty to have regard to the need to safeguard children and to promote their welfare. That duty was owed in performance of a police function of planning for a major public order event on 24 November. On the evidence, CSJ had had regard to that need.

He had received and shared intelligence as to possible plans by the organisers to involve schoolchildren, at least in school walkouts, and requested school liaison officers to report intelligence as to the scale and nature of that involvement.

It had been a reasonable and sufficient performance of his duty to request his commanders to be ready for the contingent need for containment. It had been reasonable for the defendant not to make specific plans for the management of children save to remind his commanders, as he had, of the need to protect the vulnerable.

It was conceded that the occasion to impose a containment had arisen, since the officers had been entitled to conclude that a breach of peace was imminent. It could not be said that the presence of children should have been anticipated or that, if it had been, there had been alternative means available, either to prevent a breach of the peace occurring or to ensure the welfare of the children if the need arose to intervene in Whitehall.

On the day, there had been a plan for release of the vulnerable, including schoolchildren, and a commander had been designated with responsibility for the release of the vulnerable, which he had treated as including a specific obligation towards school children (see [58], [60], [64], [66]-[67] of the judgment). (2) If the duration of containment was unnecessary, unreasonable or disproportionate, then it was unlawful (see [68] of the judgment).

In the present case, the decision not to allow a general exodus from Whitehall had been entirely justified. The continued anticipation of an imminent breach of the peace was supported by the evidence. In the circumstances, the instruction to search those leaving for arms had not been unnecessary, unreasonable or disproportionate, nor had the instruction to arrest those suspected of committing offences been unnecessary or disproportionate, having regard to the presence and welfare of children. The containment had not been prolonged for any unlawful purpose.

While there was a considerable delay beyond the time at which a general dispersal was planned, and that delay was regrettable, particularly when the young and vulnerable were affected, it was justified by events occurring outside the cordon which required careful handling of those within the containment.

The action taken, having regard to the need to safeguard children and to promote their welfare, had been necessary, proportionate and lawful (see [69]-[70] of the judgment).

The claim based on unlawful detention at common law and interference with the claimant’s right to liberty under article 5 had to fail. The defendant had not breached his duty under section 11 or any of his public law duties (see [72]-[73] of the judgment).

Martin Westgate QC and Ruth Brander (instructed by Bhatt Murphy) for the claimants; Ivan Hare (instructed by the Metropolitan Police Service) for the defendant.