ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Sir Anthony May PQBD and Sweeney J
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HUGHES
LORD JUSTICE SULLIVAN
| The Queen (on the application of Hannah McClure and Joshua Moos)
|- and -
|The Commissioner of Police of the Metropolis
Michael Fordham QC and Iain Steele (instructed by Bindmans) for the Respondent
Hearing dates: 13 and 14 December 2011
Crown Copyright ©
The Master of the Rolls:
The relevant facts in more detail
'Decision to put in containment of Carbon Exchange [i.e. Climate Camp] when the dispersal of Royal Exchange begins. Rationale: there are 4-5000 at Royal Exchange. There are 4-5000 at Carbon Exchange. Although Carbon Exchange relatively peaceful, the groups at [Royal Exchange] are not. I do not want them hi-jacking the Carbon Exchange or those groups outside the Carbon Exchange who are intent on disorder doing so. I will endeavour to clear Royal Exchange and then clear Carbon Exchange. If groups are allowed to mix, real danger of B[reach] of P[eace].'
'there was a real danger of a breach of the peace if the groups were allowed to mix, and I believed that this would happen imminently, (i.e. within a few minutes, allowing for the short distance between the two locations) in the absence of containment.'
He added that it was not possible to identify, still less to isolate, those in the Climate Camp crowd who were violent or disorderly. Accordingly, he said:
'I therefore had to use a tactic that would prevent those groups from getting out and mixing with the disorderly and violent elements from the Royal Exchange. Similarly, it would not have been possible or practical to try and target only troublemakers from the Royal Exchange and prevent them from entering the Climate Camp. That would not have dealt with the problem I was facing, which was the need to keep the two volatile groups separate.'
The applicable law
'The requirement of imminence is relatively clear-cut and appropriately identifies the common law power (or duty) of any citizen including the police to take preventive action as a power of last resort catering for situations about to descend into violence. That is not to suggest that imminence falls to be judged in absolute and purely temporal terms, according to some measure of minutes. What is imminent has to be judged in the context under consideration, and the absence of any further opportunity to take preventive action may thus have relevance.'
'[I]t can properly be applied with a degree of flexibility which recognises the relevance of the circumstances of the case. In particular it seems to me rational and principled to accept that where events are building up inexorably to a breach of the peace it may be possible to regard it as imminent at an earlier stage temporarily than in the case of other more spontaneous breaches.'
(1) For a police officer to take steps lawful at common law to prevent an apprehended breach of the peace, the apprehended breach must be imminent;
(2) Imminence is not an inflexible concept but depends on the circumstances;
(3) If steps are to be justified, they must be necessary, reasonable and proportionate;
(4) Depending on the circumstances, steps which include keeping two or more different groups apart may be necessary, reasonable and proportionate, if a combination of groups is reasonably apprehended to be likely to lead to an imminent breach of the peace; and
(5) Again depending on the circumstances, where it is necessary in order to prevent an imminent breach of the peace, action may lawfully be taken which affects people who are not themselves going to be actively involved in the breach.
'The police had been engaged in an unusually difficult exercise of crowd control which had as its aim the avoidance of personal injuries and damage to property and the dispersal as quickly as possible of a crowd bent on violence and impeding the police. The police had acted reasonably and properly to prevent serious disorder and violence. The restriction of the claimants' liberty had not been an arbitrary deprivation of liberty and Article 5 was not applicable.'
And, as the Divisional Court went on to say four paragraphs later, it is common ground 'that the circumstances in which police containment action would be lawful at common law are for practical purposes the same as the circumstances in which there would be no violation of Article 5'.
'[T]he test of the reasonableness of the constable's actions is objective in the sense that it is for the court to decide not whether the view taken by the constable fell within the broad band of rational decisions but whether in the light of what he knew and perceived at the time the court is satisfied that it was reasonable to fear an imminent breach of the peace. Thus, although reasonableness of belief, as elsewhere in the law of arrest, is a question for the court, it is to be evaluated without the qualifications of hindsight.'
The Divisional Court's reasoning
'Mr Johnson considered that, when the Royal Exchange dispersal took place, he did not want the two groups joining up under any circumstance, as he feared widespread violence and breach of the peace. He decided to disperse the Royal Exchange crowd from two exits in Princes Street and Queen Victoria Street, that is those away from Bishopsgate, to try to prevent those leaving from going towards the Climate Camp. At the time, he was told that the crowd at the Climate Camp was volatile and that tyres on police vehicles had been slashed. He had been at the Special Operations Room in Lambeth, but returned to the Climate Camp where, at 6.17pm, he decided to put in a containment there to start when the Royal Exchange dispersal began, i.e. at 7.00pm. His rationale was that there were about 4-5000 demonstrators at each of the demonstrations. The Climate Camp was relatively peaceful, but the Royal Exchange groups were not. There had been some disorder and violence at the Climate Camp and some of the protestors had put on masks. He considered that there was a real danger of a breach of the peace at the Climate Camp if the groups were allowed to mix, and he believed that this would happen imminently, which he explained in his witness statement as within a few minutes allowing for the short distance between the two demonstrations. He said that the major change which caused him to contain the Climate Camp was the dispersal of people from the Royal Exchange who had been acting in a disorderly and criminal manner. It was not practical to find out which individuals at the Climate Camp were intent on disorder or criminality. He had however to prevent those groups from getting out and mixing with the disorderly and violent elements from the Royal Exchange. The converse applied to the troublemakers from the Royal Exchange.'
'Mr Johnson's fear that dispersed Royal Exchange protestors might try to join those at the Climate Camp was justified to the extent that 200-300 people from the Royal Exchange found their way into Gracechurch Street to the south of Bishopsgate, where they were throwing missiles at the police, lighting fires and damaging property. Somewhat later, at about 9.35pm, other Royal Exchange protestors found their way to Wormwood Street and tried to approach the Climate Camp from the north.'
The Court then discussed the dispersal of the crowd at the Royal Exchange a little further.
'has to depend on the proposition that dispersal of violent protestors from the western end of the Royal Exchange demonstration created a reasonable apprehension of an imminent breach of the peace at the Climate Camp, or possibly elsewhere but including those at the Climate Camp. There were in reality two possibilities one that dispersed Royal Exchange protestors would join the Climate Camp; the other that Climate Camp protestors would break out to join dispersed Royal Exchange protestors on the streets of the City. The first of these was perhaps more likely than the second, and it was to this which Mr Johnson's evidence was mainly directed.'
'40. Mr Fordham submits that at 6.17pm, when the decision to contain the Climate Camp was taken, there was no sufficient apprehended imminent breach of the peace by any of those participating in the Climate Camp demonstration to justify containment. That in our judgment is correct. The Climate Camp was largely not hostile and such violence or disorder as there had been there during the afternoon was sporadic. When [containment] was put in place, it was at most precautionary. Mr Fordham is also, we think, correct to submit that, apart from the possibility of dispersing Royal Exchange protestors mixing with those at the Climate Camp, there never was a reasonable apprehension of imminent breaches of the peace at the Climate Camp. Mr Fordham submits that the defendants' contention that there were groups within the Climate Camp who were intent on disorder or criminal damage is largely unsupported by the evidence. We think this is correct, although Mr Johnson did say as much in general terms. This was one part of Mr Johnson's otherwise truthful and straightforward evidence which we did not find convincing. Apart from the reported arrival of 200-300 hardcore protestors at around 4.40pm, the specific incidents of disorder relied on had occurred earlier in the afternoon. The real justification relied on for the Climate Camp containment was the dispersal of the Royal Exchange demonstration and the perceived need to prevent some of those dispersed from hijacking the relatively peaceful Climate Camp.
41. Mr Fordham submits that at 7.07pm and thereafter there was no sufficient apprehension of any breach of the peace at the Climate Camp to justify containment. Even if dispersed Royal Exchange protestors were intent on joining the Climate Camp and intent on violence there, there was no reasonable apprehension by those putting the containment in place that it was likely to occur. The two obvious routes to Bishopsgate were quite a distance on foot from the western end of the Royal Exchange demonstration at Bank where the dispersals were occurring. If Royal Exchange protestors did approach the Climate Camp, an appropriate cordon could be formed at short notice. In the event, it was not until around 9.30pm that some Royal Exchange protestors reached the northern end of the Bishopsgate demonstration via Wormwood Street. This is, of course, hindsight but the journey required made delay quite likely. Mr Fordham submits that there was no reasonable apprehension of an imminent breach of the peace. No breach of the peace was about to be committed nor on the point of happening in the near future. This was not a case where there was no need to wait until an opposing group hove into sight, since there was no opposing group and no groups on the point of converging. It would not be crisis management to wait to see how things developed. ...'
'To be justified in law as being the lawful exercise of the common law power to take reasonable steps to prevent a breach of the peace , the police had reasonably to apprehend an imminent breach of the peace at the Climate Camp or, if not at the Climate Camp, so associated with the Climate Camp that containing the Climate Camp itself was reasonably necessary.'
The Court then stated that a breach of the peace 'is imminent if it is likely to happen' and that the 'test of necessity is met only in extreme and exceptional circumstances'.
'Containment of the Climate Camp was not justified by the behaviour and conduct of those at the Climate Camp alone. When the Royal Exchange protestors were dispersing from 7.25pm there was clearly a risk that some of them might head for the Climate Camp and the police were right to anticipate the risk and take appropriate steps to deal with it, if it materialised. But it was, we think, no more than a risk, and the distances between Bank and the demonstration in Bishopsgate were significant for people travelling on foot and the available routes were circuitous. A Royal Exchange protestor bent on joining the Climate Camp who was reasonably familiar with the geography of the City might at a stretch and in theory reach the Climate Camp in 10 minutes or so, but those who did reach the northern end in fact took up to 2 hours to do so. As we have said, we are not clear on the evidence that those in Gracechurch Street ever really reached the outskirts of the Climate Camp.'
'59. There was at 7.07pm no reasonably apprehended breach of the peace, imminent or otherwise, within the Climate Camp itself sufficient to justify containment. The Commissioner's main case depends entirely on the risk that there would be breaches of the peace at or associated with the Climate Camp resulting from the arrival of protestors from the Royal Exchange. There was such a risk, but it was at that stage only a risk; and it was not, in our judgment, a risk of imminent breaches of the peace sufficient to justify full containment at the Climate Camp. Such flexibility as the concept of imminence bears does not extend that far on the facts of this case.
60. Accepting, as we do, that the police were right to take steps to guard against the risk, we have to consider other possibilities. These, we think, included being prepared to implement some form of absolute cordon or cordons, if that became later necessary to deal with an imminent risk, and, it may be, sealing off some side roads. An absolute cordon at the north of the Climate Camp may well have become necessary and proportionate at or around 9.30pm when some Royal Exchange protestors did eventually arrive there. That may not have justified an absolute cordon at the south, since the need was, not so much to keep the Climate Camp protestors in, as to keep the Royal Exchange protestors out.'
'[T]he officers who did the pushing and some others could have cordoned the relatively narrow side roads as an extension of the filter cordon at the southern end of Bishopsgate. We think that at 7.00pm filter cordons at each of the side roads would have sufficed. We accept that blocking all the more distant means of access to Bishopsgate would not have been feasible. It follows that, in our judgment, the pushing operation from the south was not necessary or proportionate. In the event, those side streets were not used by Royal Exchange protestors in any number to try to reach the Climate Camp.'
The Commissioner's appeal: the issues
(i) (a) Did Mr Johnson reasonably apprehend an imminent breach of the peace at the Climate Camp as at 19.00?
(b) If so, was the decision to contain the Climate Camp a reasonable and proportionate response to that apprehension?
(ii) Was the decision to push north, at the southern end of the Climate Camp, a reasonable and proportionate decision?
The imminence of a breach of the peace: was the Court's approach wrong?
a) '58. [T]he risk that there would be breaches of the peace at the Climate Camp ... was, we think no more than a risk", an observation which was followed by the Court's own assessment of the time it would have taken for someone at the Royal Exchange demonstration to reach the Climate Camp;
b) '59 [T]he risk that there would be breaches of the peace was not, in our judgment, a risk of imminent breaches of the peace ';
c) '60 [O]ther possibilities, we think, included' measures including cordons and blocking off roads, which was followed by the Court's own assessment of what 'may well have become necessary and proportionate at or around 9.30 pm ';
d) '61 [Dealing with the push north] 'We think that at 7.00 pm filter cordons on each side of the road would have sufficed. [I]n our judgment, the pushing operation was not necessary ".
The imminence of a breach of the peace: was Mr Johnson's view reasonable?
Was the decision to contain the Climate Camp unjustified on Mr Johnson's evidence?