R (on the application of Hannah McClure and Joshua Moos) v The Commissioner of Police of the Metropolis  EWCA Civ 12 – Read judgment
The Metropolitan Police has succeeded in its appeal against a Divisional Court ruling (see previous post) that the use of crowd control measures – in this case, containment or “kettling” – against Climate Camp protesters did not constitute “lawful police operations”.
In reaching its decision, the Court of Appeal considered three issues: (i) whether the Divisional Court adopted the wrong approach to the question of whether a breach of the peace was imminent, (ii) whether Chief Superintendent Mr. Johnson’s apprehension that there was an imminent breach of the peace was reasonable, and (iii) whether, on Mr. Johnson’s own evidence, he should not have ordered containment of the Climate Camp.
These protests occurred in the context of the G20 summit in 2009 and were formed of two largely separate demonstrations: the Royal Exchange demonstration and the Climate Camp demonstration, each attended by between 4000 to 5000 people.
The Royal Exchange demonstration was disorderly to the point of serious violence, while the Climate Camp demonstration was markedly less so: one officer had apparently noted that there was a “party atmosphere”.
At around noon, the decision was made to contain the Royal Exchange camp and, later that evening, at approximately 7:30pm, this crowd was progressively dispersed. Mr. Johnson was concerned that the more violent elements of the Royal Exchange camp would mingle with the crowd at the Climate Camp, leading to imminent breaches of the peace, and so took the decision to contain the Climate Camp at the time of the dispersal of the Royal Exchange camp.
Both the Divisional Court and the Court of Appeal took into account R (Laporte) v Chief Constable of Gloucestershire  UKHL 55. The Court of Appeal considered the Divisional Court’s summary of the following propositions derived from Laporte to be accurate:
(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 Court of Appeal also took into account Austin v Commissioner of Police of the Metropolis  EWCA Civ 989, that, where a breach of the peace was taking place or reasonably thought to be imminent, the police could interfere with or curtail the lawful exercise of rights of innocent third parties, but only if they had taken all other possible steps to prevent the breach or imminent breach of the peace and to protect the rights of third parties, and only where they reasonably believed that there was no other means to prevent a breach or imminent breach of the peace.
This, together with the test laid down by Sedley LJ in Redmond-Bate v DPP  EWHC Admin 733, led the Court of Appeal to conclude that the approach to be followed was an objective one and that it was not for the court to form its own view as to imminence.
Whose view was it?
The Court of Appeal examined the Divisional Court’s judgment and noted that in each of the four paragraphs that encompassed its reasoning, there was at least one sentence that suggested that it had proceeded on its own view of the imminence of the danger, rather than the reasonableness of Mr. Johnson’s view of imminence.
Additionally, nowhere in the four paragraphs was there a sentence that expressly indicated that the Divisional Court had considered the reasonableness of his apprehension. The Court of Appeal also noted that it had failed to expressly address Mr. Johnson’s reasons for reaching the view that he did. They concluded, therefore, that it had followed the wrong approach and had formed its own views.
The Court of Appeal then went on to consider the question of whether Mr. Johnson’s view was reasonable, commenting that it was “hard to see” how a perception that there was 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 case.
They took into account that the Divisional Court had accepted that Mr Johnson’s apprehension was honest and the evidence he gave was accurate (except to a limited degree with regards to the level of violence in the Climate Camp). In so doing, they noted that Mr. Fordham had proceeded on the assumption that containment of the Climate Camp could only be justified by a risk emanating from the demonstrators within that camp, rather than from the mingling with the Royal Exchange demonstration, and roundly rejected this.
Finally, they considered whether the decision to contain the Climate Camp was unjustified on Mr. Johnson’s evidence, and decided that it was not. In so doing, it relied on various facts including the level of violence at the Climate Camp, which while disputed, was nonetheless not non-existent.
This ruling may of course be appealed, and we continue to await the judgment of the Grand Chamber of the European Court of Human Rights in Austin, in which the Grand Chamber will consider whether two 2001 instances of kettling amounted to unlawful detention in breach of Article 5 of the European Convention on Human Rights.
As part of the continued debate concerning kettling, the Court of Appeal has made clear that the Court cannot substitute its own views for that of the police: it may only consider whether, in light of the evidence they possessed at the time, it was reasonable to fear an imminent breach of the peace.
Wessen Jazrawi is a qualified solicitor and holds an LLM in International Human Rights Law from the University of Essex. She is currently working with the European Human Rights Advocacy Centre.
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