England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Lord Justice May and Mr. Justice Harrison
CO/2902/2003

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 December 2004

Lord Chief Justice:

This is the judgment of the Court.

Introduction

1. This judgment deals with an issue of importance. The issue relates to the ability of the police to take action to avoid a breakdown in law and order as a result of a demonstration. This still depends, at least in part, on the police's duty, which they share with members of the public, at common law to take action to prevent breaches of the peace. The limits on this common law power are by no means clear. This makes it difficult for the police to know what steps they can and cannot take, without unlawfully infringing the civil rights of individual members of the public, to avoid losing control of demonstrations with the consequential risk of causing personal injuries and damage to property.
2. The appeal arises out of a decision of the Administrative Court (May LJ and Harrison J) given on 19 February 2004. That Court had to decide whether police action in connection with a demonstration against the war in Iraq was lawful. The Claimant was partly successful in the proceedings. The Chief Constable of Gloucestershire Constabulary was the Defendant. He appeals against the judgment insofar as the outcome was favourable to the Claimant. The Claimant cross-appeals against the judgment insofar as she was unsuccessful. Both parties were given permission to appeal by the court below because of the importance of the issues involved.
3. There are also two interested parties, the Chief Constable of Thames Valley Police and the Commissioner of Police of the Metropolis. Liberty sought permission to intervene by way of written submissions only and was granted permission to do so on 15 September 2004. The Chief Constable of Thames Valley Police and the Commissioner of Police of the Metropolis were represented at the hearing of the appeal. We have taken into account the submissions made on behalf of the interested parties and the Intervener in coming to our decision.

The Factual Background

4. The facts are fully set out in the judgment of the court below. For the purposes of the appeal the following facts are relevant:

(a) Fairford is an air base near Cirencester. It was used heavily by the US Air Force in the build-up to and early stages of the Iraq war. Its perimeter runs for approximately 13 miles, parts of which were not secure.

(b) Between 14 December 2002 and 22 March 2003, there were a number of demonstrations at Fairford against the war in Iraq. On 26 January, 1500 protesters were present, and on 23 February, 500 were present. During the protests there were incursions onto the site resulting in numerous arrests, damage to the perimeter fence and runway lights, and £40,000 damage to vehicles. On 18 March, an individual was found hiding near the site with ingredients for a suspected incendiary device.

(c) On 15 February 2003, several groups advertised an intended protest demonstration at Fairford on 22 March 2003. One group that advertised was called "Disobedience Against War." On 20 February 2003, military action against Iraq began.

(d) The staging of a lawful assembly at Fairford on 22 March 2003 was authorised by the police under sections 12 and 14 of the Public Order Act 1986. However, Gloucestershire Police subsequently received intelligence indicating that hard-line protesters were intent on being present at that demonstration. They therefore prepared detailed plans which were intended to ensure that the protest would pass peacefully. There was a chain of command. Gold Commander was the Assistant Chief Constable with overall strategic control. Under him was the Silver Commander, Chief Superintendent Lambert ("Mr. Lambert"), who was responsible for tactical aspects of the operation, and under him Bronze Command, being those police officers responsible for operational matters on the ground.

(e) The police objectives were twofold: (a) preventing violence; and (b) facilitating peaceful protest. Coach-loads of protesters were expected from all over the country. The police plan involved escorting coaches to pre-determined drop-off points and allowing protesters to continue on foot to the prescribed route of the march. The police had circulated publicity about the arrangements warning that those who deviated from the arrangements risked arrest.

(f) The Wombles are an activist group. Their acronym stands for White Overalls Movement Building Libertarian Effective Struggles. Members of the Wombles were present at Fairford on the 23 February 2003 when there was serious disorder. The main gate of the base was forced open and there was a major incursion into the base. The Wombles have a website which states that they promote anarchist ideas. A message posted on their website on 11 March 2003, under the heading "Smash USAF Fairford! Info on coaches," stated:

"The first [time] we went there 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 necessary? Book a place on the coach and find out!"


(g) Mr. Lambert made a statutory stop and search authorisation under section 60 of the Criminal Justice and Public Order Act 1994 on 21 March 2003, the day before the demonstration. At 10.45 a.m. on 22 March 2003, Gloucestershire Police received further specific intelligence in relation to members of the Wombles being on board: "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."

(h) Acting upon that intelligence and pursuant to the authorisation in place, at 12.50 p.m. on 22 March 2003, the police stopped, boarded and searched four vehicles matching the description at a lay-by on the A417, near the town of Lechlade. This included the Claimant's coach. The lay-by was less than 5 kilometres by road from the perimeter of Fairford, and approximately 2 kilometres on foot.

(i) Mr. Lambert then made a removal of disguises authorisation under section 60AA of the 1994 Act and one arrest was made. But on the instructions of Mr. Lambert, there were to be no further arrests (unless other offences were apparent) as he did not consider a breach of the peace to be sufficiently imminent at that stage.

(j) Discovered on the three coaches were: "some protective clothing, spray paint, two pairs of scissors, a smoke bomb and five shields". May LJ noted in his judgment (at paragraph 16) that those items were "in the main protective or useful to conceal identity [but] there were few items capable of being used offensively." Protective (white) clothing was the known uniform of the Wombles, but other protesters had been encouraged to wear similar clothing for symbolic reasons (to look like civilian weapons inspectors). Other items retrieved included a balaclava, a crash helmet, a wood saw, a hammer, two knives and garden clippers, but the lower court made no positive finding that these articles had been seized from the coaches, and the Claimant contends that these items did not play any role in the decisions taken by the police.

(k) May LJ noted (at paragraphs 15 and 16) that passengers "tried to conceal their identities", that "nobody accepted responsibility for [the items]" and that the Claimant "refused to give her name and address when she was asked [and] gave no good reason for not co-operating". There is evidence that an officer of the Metropolitan Police recorded the presence of eight named individuals whom he readily recognised as members of the Wombles and that "the police knew that transport arrangements had been advertised not only on the Wombles website, but also elsewhere." Mr. Fordham, on behalf of the Claimant, criticises the police for not asking more questions, but it is by no means clear that further questioning would have revealed any further relevant information.

(l) Following the seizure of those items, Mr. Lambert concluded that the coach passengers were heading for Fairford and were likely to cause a breach of the peace. At 2 p.m., he gave instructions that the coaches and passengers were to be escorted back to London. This happened and the Claimant disembarked from a coach at Shepherd's Bush at 4.54 p.m., approximately two and a half hours later.

Mr. Lambert's Reasoning for taking the Action he did

5. In his statement, Mr. Lambert says that he discussed the operation with the Gold Commander, and it was "agreed that the operation would aim to protect life, property and the Queen's peace, minimise the risk of disruption to military operations and RAF Fairford [and] facilitate peaceful protest outside RAF Fairford." In addition, he wished to "maintain public confidence in the Gloucestershire Constabulary."

He added:

"my decision not to allow the coaches to proceed to Fairford to protest was based upon:

(a) The history of the Wombles and Disobedience Action Groups. [He] was satisfied that hardcore members were on the coaches;

(b) The intelligence sources leading up to and on 22nd March 2003;

(c) The articles seized from passengers on the coach, and those found in communal areas abandoned."

6. He had taken into consideration alternative courses of action but concluded that the passengers on the coaches intended to cause a breach of the peace at Fairford. He could not predict the precise location of the likely breach of the peace, and was mindful that intelligence had indicated that a previous tactic had been to create a diversionary disturbance in one area, while a smaller group would gain access to the target at another location.
7. Mr. Lambert added that he was concerned that, if allowed to proceed, the group would be able to gain access to other offensive articles. He could not be confident that they were not coordinating activity with protesters elsewhere or, as highlighted in intelligence reports, that offensive items had not been secreted near the base or carried in other vehicles travelling separately. He concluded that if the coaches had been allowed to continue to Fairford, the protesters on the coaches would inevitably have had to be arrested on arrival at Fairford, breach of the peace then being sufficiently imminent.
8. He was also of the view that allowing the coaches to proceed provided a risk that the individuals on board would succeed in disrupting military operations by unlawful acts. He was "mindful that [his] decision affected the right of the people on the coach to protest at Fairford" and "did not take the decision lightly." However, he concluded that the risk and consequence of allowing the coaches to proceed were not in the interests of the villagers of Fairford or the peaceful protesters attending the demonstration. The arrest of the coach passengers would have been a logistical nightmare. Each of the individuals would have required police transport and the detentions would have considerably exceeded the number of places identified for custody procedures. If he had arrested the 150 individuals on the coaches, it would have "vastly reduced [his] tactical options to deal with other incidents anticipated on the day". Furthermore, he felt that this course of action was disproportionate and that turning the coaches around offered a more reasonable alternative.
9. Finally, he acknowledged that there remained a potential risk that some peaceful protesters had been caught up in the decision not to allow the coaches to proceed, but it was not possible to be certain as to this. Those on the coaches had been asked to state who had brought the articles onto the coaches. They had failed to do so. No one had disassociated themselves from the articles seized, which he viewed as evidence of their collective intent.
10. Although passengers on the three coaches were prevented from taking part in the protest, many others attended, but far less than the 10,000 for whom arrangements had been made. In the event, the protest passed off peacefully without significant incident. The police regarded this outcome as a success.

Nature of the Proceedings and their Outcome in the Court Below

11. The Claimant brought her proceedings by way of judicial review. To a significant extent, her case effectively amounts to an allegation that she was unlawfully detained by the police, analogous to an allegation of false imprisonment. Proceedings for false imprisonment are normally not commenced in this way but in an ordinary civil action for damages, and are usually heard by a jury. The Defendant suggested that judicial review was not the appropriate vehicle for the Claimant's allegations but no technical point concerning the correctness of the procedure chosen is now pursued.
12. An advantage of using judicial review is the likelihood of significantly reduced costs compared to an ordinary action for damages. However, a consequence of bringing the proceedings by judicial review is that no oral evidence was heard by the court below, there not having been any application by the parties for cross-examination of the witnesses on their written statements.
13. The justification for the proceedings being brought by judicial review was the fact that the Claimant was seeking clarification of the law. The grounds for judicial review state that:

"This case is about the lawfulness of police action which severely curtailed the civil liberties of the Claimant and other peace protesters. At the heart of the case is whether it is legally permissible for the police to take "containment" action to restrict movement and liberty, by a blanket response attributing to a group of protesters an imputed collective intent, without reference to their individual circumstances, and without arresting them or having any grounds which would justify effecting a lawful arrest. Whether the police action was lawful or unlawful in this case has widespread ramifications for police powers and civil liberties."

14. In addition in her grounds the Claimant states that:

"the question is whether the police can discharge the onus of showing that the interferences with [her] rights, which the police action represents, were carried out with lawful authority and were justified and proportionate."

15. The Claimant's evidence in support of the application makes clear that she was "utterly opposed to the US led military assault on Iraq". She believed that military intervention of the kind that took place was morally wrong and had no legal basis. Her beliefs are "deeply held." She wanted to demonstrate at Fairford in particular to draw attention to its direct role in the military assault, namely its use for the launch of B52 bombing raids on Iraq, destroying infrastructure and killing civilians. She had been part of the demonstration at Fairford on 26 January 2003 but denied any involvement in breaking into the base. She said that she expected the 22 March demonstration to be broadly similar to the 26 January demonstration but on a larger scale.
16. The Claimant describes how, having got off the coach in order to be searched, she eventually re-boarded the coach at the suggestion of the driver of her coach. She thought that when the passengers had returned to the coach it would be driven to Fairford. In fact it was driven to the motorway where police motorcycle outriders prevented the coach from turning off to the motorway services, even though many of the passengers had become desperate for the toilet and signs had been put up which would be clearly visible to the police saying this was the case.
17. In his statement, Mr. Lambert explains the reason for escorting the coaches by saying, this "was necessary to ensure that the protesters did not find an alternative route towards RAF Fairford … the coaches travelling away from Fairford did not guarantee that the protesters would not attend nearby RAF Welford or return to us later in the day".
18. In its summary grounds of defence, the Defendant makes clear that there were significant differences of fact between the Claimant's and the Defendant's cases. He gives as an example, apparent disagreement "about when the escorting motorcyclists were made aware that some passengers wished to go to a service area to use the toilets." He also suggests that differences might emerge between the factual cases of the various police forces, or as to the responsibility of one police force rather than another for any particular operational decisions which may have been made. However, as to the last point, the interested parties confined their contentions to the points of principle and not the facts, although it is recorded in a statement on behalf of the Chief Constable of Thames Valley Police, that an officer had given information that, "pursuant to the instructions he received on departure from Lechlade he and his motorcyclist colleagues used standard escort techniques to prevent the coaches from leaving the motorway." It is also suggested that there would have been difficulties in allowing the coaches to stop while they were on the motorway for safety reasons.
19. A number of additional statements were also filed on behalf of the Claimant. For example there is a statement from Sue Davis who is 76 years of age. She regards the suggestion that it was impossible to distinguish between hardcore activists bent on violence and those protesters who were intending to protest lawfully as nonsense.

The Judgment in the Court Below

20. In his judgment, May LJ noted that the Claimant had chosen to proceed by judicial review upon untested written evidence. In those circumstances he accepted that Mr. Lambert had reason for being concerned that some at least of the coach passengers would have caused or contributed to a breach of the peace at Fairford if the coaches had been permitted to continue there. He then considered whether such an apprehension justified preventing the coaches from proceeding to Fairford and enforcing the return of their occupants to London as a matter of law. May LJ reviewed the authorities both as to the position at common law and under the European Convention of Human Rights ("ECHR"). In so doing, he accepted (at paragraph 29) that "the court is obliged … to conduct a rigorous and intensive review, including a close and penetrating examination of the Defendant's factual justification for what Chief Superintendent Lambert instructed his officers to do".
21. May LJ regarded it necessary to distinguish between arrest and preventive action short of arrest. He came to the conclusion that, in accordance with Mr. Lambert's own assessment at the time, there was no justification for arrest of the coach passengers while the coaches were in the lay-by. However, as to preventing the passengers proceeding to Fairford, May LJ (at paragraph 39) regarded the case of Moss v McLachlan [1985] I.R.L.R. 76 as providing "strong support for [the Defendant's] case that preventive measures falling short of detention were legitimate".
22. May LJ added that whether preventive measures were necessary and thus proportionate was a question of fact and, in the circumstances, Mr. Lambert was here lawfully entitled to give the instructions he did. He further decided (at paragraph 41) that "there may be circumstances in which individual discrimination among a large number of uncooperative people is impractical" and that that was the position here.
23. As to the detention of the Claimant and the other passengers in the coach for approximately two and a half hours during the journey back to London, May LJ took a different view. He summarised the position in paragraph 47 of his judgment as follows:

"Upon this view of the law, in my judgment the Claimant's enforced return on the coach to London was not lawful because (a) there was no immediately apprehended breach of the peace by her sufficient to justify even transitory detention, (b) detention on the coach for two and a half hours went far beyond anything which could conceivably constitute transitory detention such as I have described, and (c) even if there had been, the circumstances and length of detention on the coach were wholly disproportionate to the apprehended breach of the peace."

24. In accordance with May LJ's judgment, the Administrative Court declared that:

"1. The decision of the Defendant's officer forcibly to return the Claimant from Lechlade to London on 22 March 2003 was unlawful.

2. The further declaration that the decision to prevent the Claimant from proceeding to Fairford was unlawful be refused".

In addition the court ordered that the inquiry as to the level of damages to which the Claimant was entitled (if any) be adjourned until the final determination of this appeal.

25. In the Defendant's notice of appeal to this court, three grounds are relied on. The first is that the court had erred in finding that a breach of the peace was not imminent. Secondly, the court had erred in finding that Article 5(1)(b) of the ECHR did not apply to detention to prevent a breach of the peace. Thirdly, the court had erred in finding that detention to prevent a breach of the peace, other than transitory detention was not compatible with the ECHR.
26. In her cross-appeal, the Claimant also relies on three grounds. They are that May LJ was wrong as to:

(a) the "imminence" point, in identifying and/or applying a lesser "real risk/close proximity" test for preventive action short of arrest/detention.

(b) the "blanket" point, in identifying and/or applying a test of "impracticability" which was wrong and unjustified at common law and/or under section 6 of the Human Rights Act 1998 and Articles 10 and 11 of the ECHR.

(c) the "justification" point, in concluding that the circumstances of this case justified the preventive action taken, contrary to common law and/or section 6 of the Human Rights Act 1998 and Articles 10 and 11 of the ECHR.

Our Conclusions

27. Although the decision on this appeal involves a careful examination of what should be the limits on the power of the police to take action to prevent a breach of the peace, it also involves a careful analysis of the facts in order to determine the reasonableness and proportionality of their action in the circumstances with which they were faced on 22 March 2003. In determining what those circumstances are, we have the same problems as did the Administrative Court because of the lack of oral evidence and the conflicts that exist in the written evidence. In the case of conflict, we have to give the benefit of the doubt to the Defendant since the Claimant brings the proceedings and it is her task to prove her case. Furthermore, she chose to bring the proceedings by judicial review, a course which the Defendant opposed, so she is in no position to complain at our adopting the traditional approach to evidence on an application for judicial review.
28. However, in determining the principal issues arising on the appeal and cross-appeal, conflicts in evidence in the event do not prove to be critical. So, as often proves to be the case, judicial review is a satisfactory procedure for determining the outcome of the issues that conventionally would be dealt with differently. The position may well, however, be different when it comes to resolving any outstanding issue as to damages.
29. We can deal with the issues of fact briefly by indicating that we agree with the views expressed in May LJ's judgment on behalf of the Administrative Court. In particular, we agree with that court as to the reasonableness of Mr. Lambert's apprehension of a breach of the peace, and the reasonableness of his decision to prevent the Claimant and her fellow passengers from proceeding to Fairford.
30. Furthermore, in view of the uncooperative stance of the passengers on the coaches and the constraints to which the police were subject, both as to time and resources, it is our view that it was not practical to identify the potential troublemakers and to distinguish them from those who were intending to protest peacefully. While we do not suggest that the Claimant herself would have acted unlawfully, we do note that she was not prepared to provide her identity and that she had herself, at the lay-by, put on the white suit which is the uniform of the Wombles, only to remove it shortly afterwards.
31. As between the appeal and cross-appeal, it is convenient to address the issues on the cross-appeal first since the cross-appeal is concerned with the earlier events at the lay-by and this approach accords with the way in which the argument proceeded before us.

The Cross-appeal

32. The powers and duties of the police in relation to apprehended breaches of the peace depend upon the common law, as it has developed and is still developing. This is subject, now, to the influence of Articles 5, 10 and 11 of the ECHR. The Articles so far as relevant provide as follows:

"ARTICLE 5 - RIGHT TO LIBERTY AND SECURITY

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;

(d) – (f) […]

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 […].

ARTICLE 10 - FREEDOM OF EXPRESSION

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers [...].

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, … public safety, for the prevention of disorder or crime […].

ARTICLE 11 - FREEDOM OF ASSEMBLY AND ASSOCIATION

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime … or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of … the police [...]."

33. We intend to examine the Claimant's three points, "the imminence point", "the blanket point" and "the justification point" in turn. However, before we do so, it is helpful to make some general points as to how we see the common law and the requirements of the ECHR combining in this area.
34. The rights to freedom of expression, and assembly and association, which are protected by Articles 10 and 11 of the ECHR respectively, are of the greatest importance to the proper functioning of any democracy. Any intrusion upon the rights, either by the developing common law or by the intervention of statute law, has to be jealously scrutinised. However, as appears from Articles 10 and 11 themselves, the rights for which they provide are not absolute. In the case of both Articles, they are subject to an express qualification contained respectively in Articles 10(2) and 11(2).
35. These qualifications are necessary to prevent the rights being abused and the rights of others suffering in consequence. Unfortunately, as the facts of this case demonstrate, there are, among the public, those who intend to take advantage of others seeking to exercise their right to protest lawfully, by creating public disorder, committing unlawful acts and causing personal injuries and damage to property. Today, those who have such an intent, can, by using technology, assemble greater numbers of individuals wishing to create disturbances than has hitherto been possible. When this is happening, it presents great challenges for the authorities. While the authorities must be prepared to have their actions scrutinised to ensure that they are proportionate and reasonable and in accordance with the law, it is equally important that, subject to any action taken to comply with these requirements, the authorities are not prevented from taking action and that the required action is in fact taken by the authorities to prevent disturbances happening. Otherwise, the conduct of those intent on creating unlawful disturbances can undermine the ability of others lawfully to exercise their rights, including their rights under Articles 10 and 11 to protest.
36. Legislation has already given specific enabling powers to the police which can be exercised in appropriate circumstances. For example, the stop and search powers which were used by the Defendant on this occasion. In addition to the statutory powers, important protection for the rights contained in Articles 10 and 11 is provided by the duty of the police, which is shared by members of the public, to take reasonable steps to prevent a breach of the peace occurring. The advantage of this duty is that, because it is a common law duty, it is capable of evolving to meet modern circumstances. Particularly, because we are concerned with possible restrictions on the exercise of Article 10 and 11 rights, the evolution of the law has to be based on principle, and the law developed bearing in mind the admonition pithily expressed by Lord Bingham of Cornhill extra-judicially that, "on the whole, the law advances in small steps, not by giant bounds". (The Business of Judging, p. 32 Oxford University Press (July 2000)).
37. As to the common law, a good starting point for examining the position is provided by a much quoted statement of Lord Diplock in Albert v Lavin [1982] A.C. 546 at p. 565. Lord Diplock stated:

"That 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."

38. The fact that the breach of the peace has to be actually in the process of being committed, or reasonably to appear to be about to be committed, introduces the "imminence point" we are about to address. The "duty" in the case of a constable is augmented by his power to arrest someone who wilfully obstructs him in the execution of his duty. The manner in which the duty to prevent a breach of the peace and the power of a constable to arrest for wilful obstruction combine, is well illustrated by the decision in Duncan v Jones [1936] 1 K.B. 218. In that case the appellant was about to address a number of people in the street. A police officer reasonably apprehended that a breach of the peace would occur if the meeting was held. He therefore ordered the appellant not to hold the meeting. The appellant however persisted in trying to hold the meeting and obstructed the police officer in his attempt to prevent her from doing so. Neither the appellant nor anyone present, committed, incited or provoked a breach of the peace, but the appellant was held to have wilfully obstructed the officer in the execution of his duty. The fact that the officer reasonably apprehended a breach of the peace was a justification for the finding that he was acting in the execution of his duty.
39. The relationship between the duty to prevent a breach of the peace and the power of a police officer to arrest a person who interferes with the execution of his duty also features in the case of Moss v McLachlan [1985] I.R.L.R. 76, the facts of which are closest to those we are considering here.
40. Moss involved four striking miners. They were travelling in a convoy of motor vehicles and were stopped by a police cordon at a junction within several miles of four collieries. The inspector in charge of the operation had reason to believe that a breach of the peace would be committed if they continued to the pits and asked them to turn back. He told them that if they continued they would be obstructing an officer in the execution of his duty and therefore liable to arrest. Many refused to turn back however and, after blocking the road with their vehicles, a group comprising the four striking miners attempted to push their way through the police cordon. They were arrested on the ground that the police feared a breach of the peace at one of the four collieries if the miners had been allowed to proceed. The men were convicted of wilfully obstructing a police officer in the execution of his duty and their appeal was dismissed by the Divisional Court. In the course of his judgment Skinner J (who was sitting with Otton J) said:

"20 The situation has to be assessed by the senior police officers present. Provided they honestly and reasonably form the opinion that there is a real risk of a breach of the peace in the sense that it is in close proximity both in place and time, then the conditions exist for reasonable preventive action including, if necessary, the measures taken in this case. …."

"22 But, says [counsel], the police can only take preventive action if a breach of the peace is imminent and there was no such imminence here. In support of this proposition he relies on a passage in the judgment of Lord Justice Watkins in R v Howell (1981) 3 AER 383 at p. 388: "… there is a power of arrest for breach of the peace where … the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach …"

"23 This passage must be read in the light of the judgment of Lord Parker, Chief Justice, in Piddington v Bates (1960) 3 AER 660 at 663, in which he says the police must anticipate "a real, not a remote, possibility" of a breach of the peace before they are justified in taking preventive action". .Emphasis added)

"24 We do not think that there is any conflict between the two approaches. 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."

41. Later Skinner J added:

" 27 For the reasons we have given, on the facts found by the magistrates, a breach of the peace was not only a real possibility but also, because of the proximity of the pits and the availability of cars, imminent, immediate and not remote."

These comments by Skinner J conveniently lead into Mr. Fordham's first point.

The "Imminence" Point

42. Mr. Fordham submits that May LJ adopted the wrong test in determining that preventive action was justified. The approach of May LJ appears from paragraphs 38 and 39 of his judgment. He first addresses the submission of Mr. Freeland on behalf of the Defendant, in which Mr. Freeland relies on the Moss case as authority for the assertion that a breach of the peace was properly to be regarded as imminent. May LJ considered that it was difficult "to submit persuasively that any apprehended breach of the peace justifying arrest was imminent at the time when the coaches were in the lay-by". However, May LJ also distinguished between arrest and preventive action short of arrest and, in relation to what happened at the lay-by which did not involve arrest, he stated "Moss is an authority providing strong support for Mr. Freeland's case that the preventive measures in the present case falling short of detention were legitimate." May LJ recognised that to comply with Articles 10(2) and 11(2) "restrictions of this kind have to be prescribed by law and necessary in the democratic society in the interest of public safety or for the prevention of disorder or crime", but in this case he said;

"It is, in my judgment, a question of fact in each case whether preventive measures of this kind are necessary in this context and thus proportionate. For them to be prescribed by law, it is necessary that the law sufficiently defines the circumstances in which the police may lawfully take preventive measures of this kind. In my view, this requirement is in substance satisfied by the judgment of Skinner J in Moss. The essential features are that a senior police officer should honestly and reasonably form the opinion that there is a real risk of a breach of the peace in close proximity both in place and time; that the possibility of a breach must be real; that the preventive measures must be reasonable; and that the imminence or immediacy of the threat to the peace determines what action is reasonable. I would add that the police are entitled to have regard to what is practical and that the number of people from whom a breach of the peace is apprehended may be relevant. The question of imminence is thus relevant to the lawfulness of preventive measures of this kind, but the degree of imminence may not be as great as that which would justify arrest". (Emphasis added)

It was on the basis of this approach that May LJ found in favour of the Defendant.

43. On this aspect of the case, we would adopt a very similar approach to that of May LJ. We agree with him that it is necessary to distinguish between arrest and preventive action short of arrest, including temporary detention. We regard what is sufficiently "imminent" to justify taking action to prevent a breach of the peace as dependent on all the circumstances. As in Moss, so here, it is important that the Claimant was intending to travel in a vehicle if the preventive action had not taken place. The relatively small distance involved did not mean that there was no sufficient imminence. What preventive action was necessary and proportionate, however, would be very much influenced by how close in proximity, both in place and time, the location of the apprehended breach of the peace was. The greater the distance and the greater the time involved, the more important it is to decide whether preventive action is really necessary and, if it is necessary, the more restrained the action taken should usually be as there will be time for further action if the action initially taken does not deter. It may be that as the police thought, arrest at the lay-by would have been a disproportionate level of action, but this does not necessarily mean that no action was appropriate.
44. We would see the instant case as being very much on all fours with the decision in Moss which we would endorse. If the police had done no more than direct the passengers to re-board the coach and instructed the driver not to proceed to the Fairford base, this would have been an appropriate response that was both necessary and proportionate. We will deal with the additional action that the police would have been entitled to take when considering the appeal as opposed to the cross-appeal.
45. Like May LJ, we would regard the "real risk" or "close proximity" test and the "imminence" test as not being in conflict. Action should not be taken until it is necessary and reasonable to take the action on the facts of the particular circumstances. In the present case, on the evidence before us, the alternatives were either taking the preventive action at the lay-by or waiting until the coaches had arrived at Fairford, the site at which the disturbance was feared. To have delayed taking action until the coach passengers reached the air base could have provoked the very disturbance which the preventive action was intended to avoid.

The "Blanket" Point

46. Mr. Fordham here relies upon the fact that the information that was available did not enable Mr. Lambert to do more than reasonably to conclude that some, but not all, of the passengers in the Claimant's coach were likely to be responsible for performing acts which would constitute a breach of the peace. He relies on the statement of Sedley LJ in Redmond-Bate v DPP [2000] HRLR 249 that:

"A judgment as to the imminence of a breach of the peace does not conclude the constable's task. The next and critical question for the constable, and in turn for the court, is where the threat is coming from, because it is there that preventive action must be directed."

He submits that there is a need for a nexus between the perceived likely harm and the person against whom preventive action is taken.

47. Again, in our judgment, the answer to Mr. Fordham's point is provided by the need for the police to act reasonably. In view of the attitude adopted generally by the passengers in the coaches, it is difficult to see how it would be possible to distinguish between the occupants. The occupants were clearly committed to seeking to proceed to the base and, being realistic, it is most unlikely that it would have been possible to identify passengers who would not play a part in provoking a breach of the peace. The important feature to note about the ability to take preventive action is that its justification is not derived from the person against whom the action is taken having actually committed an offence, but based upon a need to prevent the apprehended breach of the peace. In some situations, preventing a breach of the peace will only be possible if action is taken which risks affecting a wholly innocent individual. In other situations, it will be possible to identify precisely which individuals are the likely troublemakers and when this is the position, the type of action taken will be determined by what is necessary to prevent the apprehended breach of the peace. Again, we would agree with the approach of the Court below.

The "Justification" Point

48. The argument here is that, looking at all the relevant circumstances, there is no basis for Mr. Lambert coming to his conclusion that action had to be taken to prevent the coaches proceeding to the air base so as to enable others to take part in a lawful and peaceful assembly and protest. As to this, we do not accept that the evidence before us bears out Mr. Fordham's submissions. In our view there was ample evidence to support Mr. Lambert's assessment of the position.

The Appeal

49. Mr. Freeland submits that the decision of the Administrative Court makes practical policing impossible. He contends that the approach of the Administrative Court made Mr. Lambert powerless to prevent a breach of the peace that could potentially have had extremely serious consequences. It is submitted that if we uphold the decision of the Administrative Court and reject the cross-appeal, then Mr. Lambert was under a duty to prevent the coach from proceeding to Fairford, yet the decision in the court below means that he was not entitled to take the only practical measures that would achieve this.
50. There are significant differences between the factual position giving rise to the cross-appeal and that leading to the appeal. For example there is the legal point that the action of the police which is the subject of the cross-appeal could not, in our judgment, constitute detention either at common law or under Article 5. So, to resolve the cross-appeal, there is no need to consider Article 5 further. This is the position as to the cross-appeal notwithstanding Liberty's submission to the contrary. Our view is supported by the recent decision of the Court of Appeal in Gillian and Quinton v the Commissioner of Police for the Metropolis [2004] EWCA Civ 1067.
51. The position is far more complex as to the appeal and the appeal could not succeed without a careful examination of the impact of Article 5. Once the coaches had embarked on the return journey, the evidence makes it clear that, while the passengers could move about within the coaches, they were unable to leave the coaches, even to relieve themselves, until after the two and a half hour journey back to Shepherd's Bush had been completed. It is clear that the escorting police officers were positioning their vehicles in a way which prevented the coaches leaving the motorway. There was no way in which the coaches could stop on the hard shoulder or take a turning off the motorway or enter motorway services so as to use the facilities there. The passengers were virtually prisoners on the coaches for the length of the journey.
52. The first question, therefore, that arises, is whether this action was justifiable as falling within the ambit of action reasonably taken to prevent a breach of the peace. The principles are now well established, but a decision that the Defendant could justify at common law what happened, would go well beyond any action previously considered as justified by the authorities. If the action on the present facts were to be regarded as justified, this would constitute a significant extension of the previously established principles. It would be a development that is more of a leap and a bound than a measured pace forward.
53. The Defendant contends that all that was involved was requiring the passengers to make the return journey earlier than they would have done otherwise. This description of what was involved in our judgment underestimates the impact of the police action on the passengers' individual rights to freedom of action. We do not consider it necessary to decide that it would never be justifiable for the police to take action of this nature. However, we are satisfied that such action should be very much a matter of last resort and we are not persuaded that there were no less intrusive possible alternative courses of action here.
54. Thus, it is not suggested in the evidence that the drivers of the coaches, who were professional drivers, had indicated that they were not prepared to obey a lawful order given by the police. They could, in our judgment, have been lawfully ordered not to proceed to the airbase and to leave the area. The coaches could have been followed if this was thought necessary to see whether the order was obeyed. The order could have been backed up by a warning that, if it was not observed, the police would exercise the powers of arrest which would then be available. We appreciate that Mr. Lambert did not wish to arrest the passengers for operational reasons. We also recognise that he had to conserve his resources. However, having regard to the action which was taken to escort the coaches back to Shepherd's Bush, we are unable to accept that action which was more limited in its impact upon the Claimant and her fellow passengers could not have been taken. Like the Administrative Court, we regard the actions that did take place as disproportionate and not justifiable at common law. It may well be that, if the order to which we have referred was given, the driver and his passengers would have returned to London, but if they chose to do so that would be a different situation from their being compelled to do so.
55. In these circumstances where the detention was not lawful by reference to domestic common law, we propose to accede to the submissions of the interested police parties that we should not determine further the application of Article 5 to what happened. We leave this to be decided on the facts of the pending case concerning policing of May Day 2001 in which the issue, we understand, will have to be confronted. In our judgment the appeal can be dismissed on the evidence without any further examination of either domestic or ECHR law. The declarations made by the court below will stand and the appeal and cross-appeal will be dismissed.
56. It only remains for us to express our appreciation of the skill with which this case has been presented, both in the course of oral argument on the hearing of the appeal and in the written submissions.