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POLICE - POLICE OFFICER – POWERS – DETENTION – CLAIMANT ON COACH ON ROUTE TO PROTEST OUTSIDE RAF BASE – POLICE STOPPING COACH AND SENDING IT BACK TO LONDON ON BASIS PASSENGERS WOULD CAUSE OR CONTRIBUTE TO BREACH OF PEACE – LAWFULNESS OF PREVENTIVE MEASURES AND DETENTION – HUMAN RIGHTS ACT 1998, SCH 1, PT 1, ARTS 5, 10, 11
The claimant, who was opposed to the US-led war against Iraq, was on one of three coaches travelling from London to a RAF base in Gloucestershire in order to join a demonstration. The defendant chief constable was concerned about hard line protestors and believed that incidents of serious violence might take place. He was anxious to preserve the peace and to enable peaceful protest to take place so he instructed the police to prevent the coaches from proceeding to the base. The police stopped the coaches and escorted them back to London. The claimant applied for judicial review. She contended (i) that the chief constable’s decision to stop the coaches from proceeding to the RAF base was unlawful and infringed her rights of freedom of expression under art 10 of the European Convention on Human Rights and freedom of assembly and association under art 11 of the Convention; and (ii) that her detention and forcible return to London infringed her right to liberty under art 5 of the Convention.
Held – The application would be allowed.
(1) The chief constable was lawfully entitled to give instructions for preventive measures to stop the coaches from proceeding to the RAF base. It was a question of fact in each case whether preventive measures which were prescribed by law and necessary in the democratic society in the interests of public safety, or the prevention of disorder or crime, were proportionate and thus compliant with arts 10(2) and 11(2). The essential features were that a senior police officer should honestly and reasonably form the opinion that there was a real risk of breach of the peace in close proximity both in place and time; that the possibility of a breach had to be real; that the preventive measures had to be reasonable; and that the imminence or immediacy of the threat to the peace determined what action was reasonable. Although the degree of imminence might not be as great as that which would justify arrest, that did not mean that the police could take preventive measures indiscriminately. In the instant case, the chief constable reasonably and honestly believed that, if the coaches were permitted to proceed, some at least of their occupants would cause or contribute to a breach of the peace. He was also justified in regarding the situation as one in which individual discrimination was impractical.
(2) The claimant’s enforced return on the coach to London was not lawful. The detention of the coach passengers while they were escorted back to London did not come within art 5(1)(b) of the Convention nor was it justified under art 5(1)(c) because it was not effected for the purpose of bringing the persons detained before a magistrate. The power and duty to use reasonable force to detain someone to prevent an immediately apprehended breach of the peace, although it might be described as transitory detention, was scarcely detention within the scope of art 5. However, detention beyond that period would not be justified unless there was an arrest followed by bringing the person arrested before a magistrate. How long transitory detention might lawfully last would depend on the facts of the case, but it could not be for long. In the instant case, there was no immediately apprehended breach of the peace by the claimant sufficient to justify even transitory detention; detention on the coach went far beyond anything which could conceivably constitute transitory detention; and even if there had been any justification, the circumstances and length of the detention on the coach were wholly disproportionate to the apprehended breach of the peace.
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