Power to stop, search and detain - Two demonstration camps in London

R (on the application of Moos and another) v Commissioner of Police for the Metropolis: Court of Appeal, Civil Division (Lord Neuberger of Abbotsbury MR, Lord Justices Hughes and Sullivan): 19 January 2012

On 1 April 2009, two large demonstrations took place in London in protest against the G20 Summit which was to take place the following day. The police, who knew of the planned protests, had been unable to liaise with organisers in advance. The first demonstration was held outside the Royal Exchange building near the Bank of England and involved about 4,000 protestors.

The second was a quarter of a mile away outside a building called the Carbon Exchange which was named the 'climate camp' by the protesters, of whom there were approximately 4,000. The demonstration at the Royal Exchange was disorderly to the point of serious violence. The climate camp area was less disorderly and, only intermittently and to a lesser extent, violent although the crowd became more volatile over the course of the day.

Some demonstrators had arrived prepared to stay overnight and had blocked a major thoroughfare with their tents. The police decided to tackle the demonstrators at Royal Exchange by containing them within a police cordon which blocked their exit from the area. The police decided to initiate a dispersal procedure by which demonstrators were allowed to leave in small numbers. Around 7pm, the senior police officer in charge of the operation, J, formed the view that there was an imminent breach of the peace. He decided to contain the climate camp demonstration in the belief that if they did not do so, the more violently disposed protesters from Royal Exchange would join the climate camp and that breaches of the peace and widespread violence would then occur or, in the alternative, that demonstrators would leave the climate camp and join those from Royal Exchange and cause trouble on the streets of London.

At about 7.04pm, and for about 25 minutes, the police at the south of the climate camp pushed back the protestors towards the north of the camp. They did that by using their shields to push or strike protestors. Dispersal from Royal Exchange began at 7.25pm and was complete by 8.30pm. Some demonstrators did leave Royal Exchange for the north side of the climate camp, where the police cordon remained intact and no-one was allowed to enter or leave.

At 9.10pm, the senior police officer invoked section 14 of the Public Order Act 1986 (the 1986 act). At 10.30pm, some arrests were made of the demonstrators who had travelled from Royal Exchange and the remaining demonstrators dispersed voluntarily. The dispersal of the climate camp began at 11.10pm. By 11.44pm, most of the demonstrators had left, although some remained and refused to leave. The police imposed a condition under section 14 of the 1986 act that the climate camp had to stop. The police then began to disperse the demonstrators and the operation was complete by around 1.30am.

The claimants, who were at the climate camp, sought judicial review on the ground that the containment of the climate camp had been unnecessary and unlawful. The court found that there had not been a risk of imminent breaches of the peace sufficient to have justified full containment at the climate camp, and that the pushing operation from the south had not been reasonably necessary or proportionate. The defendant police commissioner appealed.

The issues were whether: (i) the court had adopted the correct approach in determining the reasonableness of J's view that a breach of the peace at the climate camp was imminent; (ii) J’s view had in fact been reasonable; and (iii) the decision to contain the climate camp had been justified on J’s own evidence. The appeal would be allowed.

(1) The containment of the climate camp and the pushing operation could only have been justified if each action had been reasonably believed by the police to have been the only way of preventing an imminent breach of the peace. The correct approach to that question was for the court to decide not whether the view taken by J had fallen within the broad band of rational decisions but whether, in the light of what he had known and perceived at the time, the court was satisfied that it had been reasonable to fear an imminent breach of the peace. The court’s function was not to form its own view as to imminence (see [68] of the judgment).

In the instant case, the court had adopted the wrong approach. Instead of restricting itself to considering the reasonableness, in the context of the events, of J’s assessment of the imminence of a breach of the peace, it had wrongly formed its own assessment of that imminence. The court had not examined J’s own reasons, as contained in his log, his witness statement and his cross-examination, for concluding that the acknowledged risk, which he had rightly anticipated and which he had taken steps to deal with, had not been merely a risk of a breach of the peace, but a risk of an imminent breach. The court had failed to provide an adequate explanation why, in the light of what J had known and honestly perceived at the time, his assessment at 7pm of the imminence of a breach of the peace had been unreasonable.

When giving its reasons for allowing the claimants' case, the court had expressed a full and reasoned view. But it had failed to fully address J's reasons for reaching a different view, other than dealing somewhat delphically with his view that it would have been easy for Royal Exchange demonstrators to have secured access to the climate camp, and accepting his statement that he had had limited resources (see [75], [76] of the judgment).

Redmond-Bate v DPP 163 JP 789 followed; R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary (Chief Constable of Thames Valley Police and another, interested parties) [2007] 2 All ER 529 followed; Austin v Metropolitan Police Comr [2009] 3 All ER 455 followed.

(2) Regardless of the court’s error in its approach to the reasonableness of J’s view of the imminence of a breach of the peace, there had been no justifiable basis for concluding that J’s view on that matter had been unreasonable. It was difficult to contend that J's apprehension that there had been an imminent breach of the peace in the climate camp as at 7pm had been unreasonable, in the light of the fact that the court had accepted that his apprehension had been honest, and that the evidence he gave had been accurate.

Further, the court had not analysed his evidence with a view to explaining why his apprehension had been unreasonable: indeed, it had not rejected that evidence, at any rate expressly. By contrast, it was hard to see how a perception that there had been an imminent risk of the Royal Exchange demonstrators joining the climate camp and importing their violence could be characterised as unreasonable on the undisputed facts of the instant case.

There had been two very large crowds in close proximity to each other, with a number of possible routes between them, in circumstances where, as the court accepted, J had lacked the resources to seal off all roads, and where one of the crowds had included many demonstrators who had committed serious breaches of the peace. The court's conclusion, that the police had not been compelled to take expansive measures to deal with those dispersing demonstrators, had contrary to J's evidence that those demonstrators had been causing problems such by throwing missiles and lighting fires and had had to be dispersed. That had been evidence which there had been no reason to doubt, and no evidence to contradict (see [78], [86]-[88], [90] of the judgment).

(3) The containment of the climate camp had been justified on J’s evidence. The climate camp had not been free from violence: the crowd there had been a volatile, there had been the throwing of coins and bottles, the tyres of police vehicles had been slashed, and there had been an attack on a police van. Those threats had rendered the containment legitimate (see [80]-[82], [91], [92] of the judgment).

Per curiam: 'Containment of a crowd involves a serious intrusion into the freedom of movement of the crowd members, so it should only be adopted where it is reasonably believed that a breach of the peace is imminent and that no less intrusive crowd control operation will prevent the breach, and where containment is otherwise reasonable and proportionate. [...] Any member of the police considering whether to contain a crowd, and any court considering whether a decision to contain a crowd was justified, should bear in mind these important factors.' At [2011] HRLR 24, paragraph 56, the Divisional Court also said that '[t]he test of necessity is met only in truly extreme and exceptional circumstances'.

This is no doubt true, but we doubt whether it gives any assistance over and above the requirements discussed in Laporte [2007] 2 All ER 529 and summarised so clearly by the Divisional Court at [2011] HRLR 24, paragraph 12 (and set out at paragraph 36 above). Almost by definition, a decision to contain will only be made, or even considered, in extreme and exceptional circumstances: the Divisional Court made it clear that they thought the circumstances appertaining in the City of London on 1 April 2009 were extreme and exceptional (see for instance what they said at [2011] HRLR 24, paragraph 57, cited at paragraph 5l above).

But an argument as to whether, in a particular case, the circumstances were extreme or exceptional enough, or 'truly' extreme and exceptional, is scarcely likely to assist those deciding at the time whether to contain, or those subsequently deciding whether the containment was justified (see [95]-[96] of the judgment). Decision of Queen's Bench Division, Divisional Court [2011] All ER (D) 146 (Apr) reversed.

Michael Fordham QC and Iain Steele (instructed by Bindmans Solicitors) for the claimants; Monica Carss-Frisk QC and David Pievsky (instructed by the Metropolitan Police) for the defendant.