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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Laporte, R (on the application of) v Gloucestershire Constabulary & Ors [2004] EWHC 253 (Admin) (19 February 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/253.html Cite as: [2004] ACD 34, [2004] EWHC 253 (Admin), [2004] UKHRR 484, [2004] 2 All ER 874 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
THE HON MR JUSTICE HARRISON
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The Queen on the application of JANE LAPORTE |
Claimant |
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- and - |
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(1) CHIEF CONSTABLE OF GLOUCESTERSHIRE CONSTABULARY (2) CHIEF CONSTABLE OF THAMES VALLEY POLICE (3) THE COMMISSIONER OF POLICE OF THE METROPOLIS |
Defendant Interested Parties |
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(1) Simon Freeland QC and Jeremy Johnson (instructed by Gloucestershire Constabulary) for the Defendant
(2) Simon Readhead (instructed by Force Solicitor, Thames Valley Police) and
(3) John Beggs (instructed by Directorate of Legal Services, New Scotland Yard)
for the Interested Parties
Hearing dates : 15th and 16th January 2004
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Crown Copyright ©
Lord Justice May:
Introduction
Facts
"The first we went their 50 people entered the base, the second time the main gates were pulled down, what happens on March 22nd at USAF Fairford is up to you. Are we going to passively spectate while hundreds of thousands of Iraqis are murdered or are we going to be actively involved in changing history and stopping this war by any means necessarily? Book a place on the coach and find out!"
"Based on intelligence received it is understood that 3 coaches and a van are en route from London carrying items and equipment to disrupt the protest today and gain entry to the airbase. The protesters are the "Wombles". A section 60 is in place and I have asked for an objective to be made for the Bronze in charge of the two PSU's on intercept duty to intercept the coaches and van to search and identify any items that may be used. Items on the vehicles are to be seized if they are offending articles and if that is the case the coaches and van are to be turned around and sent back towards the Metropolitan area. The Metropolitan Police will be asked to pick them up at the M25. They are not to be arrested to prevent a breach of the peace at that particular time, if that is the only offence apparent, as I do not consider there to be an imminent breach of the peace. However, they are to be warned if articles are found on the coaches and they arrive at Fairford then I will consider them to be there intent on causing disruption and a breach of the peace and they may find themselves arrested."
The common law
"… every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although, except in the case of a citizen who is a constable, it is a duty of imperfect obligation."
"19. Finally, I should add that I do not consider that it was irrational of Parliament to have decided to exclude arrest and detention for breach of the peace from the scope of PACE. The common law provides persons arrested and detained for breach of the peace with a considerable measure of protection against arbitrary arrest and/or unreasonable detention. Thus, an arrest may only be lawfully made if a breach of the peace is being, or reasonably appears to be about to be, committed in the presence of the arresting person and it is reasonable for an arrest to be made: see Albert v Lavin [1982] AC 546, 565B-C. When a person is arrested at common law for breach of the peace, the arrested person must be taken to a police station and then brought before a justice as soon as reasonably practicable: see John Lewis & Co v Tims [1952] AC 676, 691-2 (per Lord Porter).
20. No doubt there are arguments in favour of extending PACE to apply to arrest and detention for breach of the peace. One of these is that the bail conditions contained in section 34(5) do not apply. I should add that it has not been suggested before us that the police have the power at common law to release a detained person on bail. As against that, it can be said that, for the most part, persons detained for breach of the peace are either released unconditionally after a very short period of detention, or are promptly brought before the magistrates' court by the police exercising their common law powers.
21. If the police consider or ought reasonably to consider that there is no longer a real (as opposed to fanciful) danger that, if released, the detained person will commit or repeat his breach of the peace within a short time, and they decide, or ought reasonably to decide, that a bind over to keep the peace is unnecessary, then continued detention is unlawful at common law. Furthermore, if the police reasonably consider that such danger exists, detention will become unlawful at common law if they fail to take the detained person to the magistrates' court as soon as reasonably practicable. In this way a detained person is afforded a substantial degree of protection by the common law."
Parties' submissions and discussion
"The possibility of a breach must be real to justify any preventive action. The imminence or immediacy of the threat to the peace determines what action is reasonable. If the police fear that a convoy of cars travelling towards a working coal field bearing banners and broadcasting, by sight or sound, hostility or threats towards working miners might cause a violent episode, they would be justified in halting the convoy to inquire into its destination and purpose. If, on stopping the vehicles, the police were satisfied that there was a real possibility of the occupants causing a breach of the peace one-and-a-half miles away, a journey of less than five minutes by car, then in our judgment it would be their duty to prevent the convoy from proceeding further and they have the power to do so."
The facts in that case are quite close to those in the present case, except that in Moss the actions of the police did not extend to detaining the striking miners and forcibly returning them to where they had come from.
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) …
(b) The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
…
3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."
"Where a small number of people can be clearly identified as the only ones capable of having committed the offence, I see no reason why that cannot afford reasonable grounds for suspecting each of them of having committed that offence, in the absence of any information which could or should enable the police to reduce the number further."
Brooke LJ was very uneasy about the case. He said that it seemed very strange that the law could raise no protest when 5 loyal employees of the council could be arrested and detained for an offence which the police reasonably believed only one of them must have committed. Despite his unease, Brooke LJ agreed with Latham LJ's analysis.
"It is however clear law that a police officer, reasonably believing that a breach of the peace is about to take place, is entitled to take such steps as are necessary to prevent it, including the reasonable use of force: .… If those steps include physical restraint of someone then that restraint is not an unlawful detention but a reasonable use of force. It is a question of fact and degree when a restraint has continued for so long that there must be either a release or an arrest, but on the facts found in this case it seems to me to be clear that that point had not been reached. Obviously where a constable is restraining someone to prevent a breach of the peace he must release (or arrest) him as soon as the restrained person no longer presents a danger to the peace."
Mr Freeland refers to DPP v Meaden [2003] EWHC 3005 (Admin) and DPP v Morrison [2003] EWHC 683 (Admin) as analogous examples of common law powers to restrict a person's freedom of movement without arresting them.
"The court considers that the words "secure the fulfilment of any obligation prescribed by law" concern only cases where the law permits the detention of a person to compel him to fulfil a specific and concrete obligation which he has until then failed to satisfy. A wide interpretation would entail consequences incompatible with the notion of the rule of the law from which the whole Convention draws its inspiration. It would justify, for example, administrative internment meant to compel a citizen to discharge, in relation to any point whatever, his general duty of obedience to the law."
The court held that provisional arrest more resembled that spoken of in Article 5(1)(c) of the Convention, but that in the case before the court it did not fulfil one of the requirements of that provision because Mr Engel's detention had not been "effected for the purpose of bringing him before the competent legal authority". The same point is to be found as the opinion of the Commission in paragraph 9 of the court's judgment in Lawless.
"The fact that a detained person is not charged or brought before a court does not in itself amount to a violation of the first part of Article 5(3). No violation of Article 5(3) can arise if the arrested person is released "promptly" before any judicial control of his detention would have been feasible."
Harrison J: I agree.