. 147
( 155 .)


of the peace on the part of persons opposed to those who are holding the meeting “ I should
wish to hear much more argument before I expressed an opinion. This case, however, does
not even touch that important question.

Lord Hewart then gave brief attention to ˜the somewhat unsatisfactory case™ of
Beatty v Gillbanks, noting that the circumstances and the charge in that case
were di¬erent from the matter before him and that Field J had there conceded
that everyone must be taken to intend the natural consequences of his own acts.
He continued:

The case stated which we have before us indicates clearly a causal connection between the
meeting of [the previous year] and the disturbance which occurred after it . . . In my view,
the deputy-chairman was entitled to come to the conclusion to which he came on the facts
which he found and to hold that the conviction of the appellant for wilfully obstructing the
respondent when in the execution of his duty was right. This appeal should, therefore, be

Humphreys J: I agree. I regard this as a plain case. It has nothing to do with the law of unlaw-
ful assembly. No charge of that sort was even suggested against the appellant. The sole ques-
tion raised by the case is whether the respondent, who was admittedly obstructed, was so
obstructed when in the execution of his duty.
It does not require authority to emphasize the statement that it is the duty of a police
officer to prevent apprehended breaches of the peace. Here it is found as a fact that the
802 British Government and the Constitution

respondent reasonably apprehended a breach of the peace. It then, as is rightly expressed
in the case, became his duty to prevent anything which in his view would cause that breach
of the peace. While he was taking steps so to do he was wilfully obstructed by the appel-
lant. I can conceive no clearer case within the statutes than that.

Singleton J agreed that the appeal should be dismissed.
See, on this case, Wade (1936“39) 6 CLJ 175, 179, who wrote that ˜the net
has closed entirely upon those who from lack of resources, or for other reasons,
desire to hold meetings in public places™; Daintith [1966] PL 248, who observes
that it brought about a ˜substantial expansion of police powers™; and K Ewing
and C Gearty, The Struggle for Civil Liberties: Political Freedom and the Rule of
Law in Britain 1914“1945 (2000), who describe the case as being ˜as noteworthy
today for the vacuity of its reasoning as for its long-term deleterious e¬ect on
civil liberties™ (at p 265). The courts have repeatedly endorsed the reasoning of
Duncan v Jones and have readily upheld the actions of the police in preventing
or dispersing demonstrations and in arresting those who persist for breach of the
peace: see Piddington v Bates [1961] 1 WLR 162; Kavanagh v Hiscock [1974] QB
600; Moss v McLachlan [1985] IRLR 76. The courts have, it is true, insisted that
the police must anticipate ˜a real, not a remote, possibility™ of a breach of the
peace before taking preventive action, but have been reluctant to question
the judgement of police o¬cers on the spot as to the necessity for intervention
(see further on this point, below). In R v Chief Constable of Sussex, ex p
International Trader™s Ferry Ltd [1999] 2 AC 418, 435, Lord Slynn rea¬rmed the
principle re¬‚ected in Duncan v Jones and its progeny in saying: ˜I do not accept
that Beatty v Gillbanks lays down that the police can never restrain a lawful
activity if that is the only way to prevent violence and a breach of the peace™.
The decision in the following case may be thought to invite a reconsideration
of Duncan v Jones.

Redmond-Bate v Director of Public Prosecutions [2000] HRLR 249 (DC)
The appellant, Alison Redmond-Bate, and two other women were preaching to
passers-by from the steps of Wake¬eld cathedral. A crowd of over 100 people
gathered and some of them were showing hostility towards the preachers.
A constable arrived and, fearing a breach of the peace, asked the women to stop
preaching; when they refused he arrested them for breach of the peace. The
appellant was subsequently charged with obstructing the constable in the exe-
cution of his duty. She was convicted, and her appeal to the Crown Court having
been dismissed, she appealed by case stated to the Divisional Court.
The essential question for the court was whether the constable had been
acting in the execution of his duty when he asked the women to stop speaking.
A constable is not empowered to take preventive action in such circumstances
unless he has reasonable grounds to fear that a breach of the peace, in the form
803 Liberty and the constitution

of violent conduct, will occur. Even if this requirement is satis¬ed there is a
further matter to be considered by the constable “ and by a court in deciding
whether the constable was justi¬ed in the action he took. Sedley LJ™s judgment
(in which Collins J concurred) was mainly directed to this further question.

Sedley LJ: . . . [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 the preventive action must be
directed. Classic authority illustrates the point. In Beatty v Gillbanks (1882) 9 QBD 308 this
court (Field, J and Cave, J) held that a lawful Salvation Army march which attracted disorderly
opposition and was therefore the occasion of a breach of the peace could not found a case of
unlawful assembly against the leaders of the Salvation Army. Field, J, accepting that a person
is liable for the natural consequences of what he does, held nevertheless that the natural con-
sequences of the lawful activity of the Salvation Army did not include the unlawful activities
of others, even if the accused knew that others would react unlawfully. By way of contrast,
in Wise v Dunning [1902] 1 KB 167 a Protestant preacher in Liverpool was held by this Court
(Lord Alverstone, CJ, Darling and Channell, JJ) to be liable to be bound over to keep the peace
upon proof that he habitually accompanied his public speeches with behaviour calculated to
insult Roman Catholics. The distinction between the two cases is clear enough: the reactions
of opponents would in either case be unlawful, but while in the first case they were the
voluntary acts of people who could not properly be regarded as objects of provocation, in
the second the conduct was calculated to provoke violent and disorderly reaction.

In regard to Duncan v Jones, Sedley LJ said that the court had there ˜cast its rea-
soning somewhat wider than “ as it seems to me “ is consonant with modern
authority™. He was able to distinguish that case from the present one on the basis
that the justices in Duncan v Jones had found that the appellant, Mrs Duncan,
had herself been the source of the threat to public order. Sedley LJ went on to
consider the ruling of the Crown Court in the present case:

The Crown Court correctly directed itself that violence is not a natural consequence of what
a person does unless it clearly interferes with the rights of others so as to make a violent
reaction not wholly unreasonable.

On the other hand, as to the ruling of the Crown Court that ˜lawful conduct can,
if persisted in, lead to conviction for wilful obstruction of a police o¬cer™,
Sedley LJ said:

This proposition has, in my judgment, no basis in law. A police officer has no right to call
upon a citizen to desist from lawful conduct. It is only if otherwise lawful conduct gives rise
to a reasonable apprehension that it will, by interfering with the rights or liberties of others,
provoke violence which, though unlawful, would not be entirely unreasonable that a
constable is empowered to take steps to prevent it.
804 British Government and the Constitution

With regard to the present case Sedley LJ went on to say:

The question for [the constable] was whether there was a threat of violence and if so, from
whom it was coming. If there was no real threat, no question of intervention for breach of the
peace arose. If the appellant and her companions were (like the street preacher in Wise
v Dunning) being so provocative that someone in the crowd, without behaving wholly unrea-
sonably, might be moved to violence he was entitled to ask them to stop and to arrest them
if they would not. If the threat of disorder or violence was coming from passers-by who were
taking the opportunity to react so as to cause trouble (like the Skeleton Army in Beatty
v Gillbanks), then it was they and not the preachers who should be asked to desist and arrested
if they would not.

On the facts of the case Sedley LJ could see no lawful basis for the arrest of the
appellant or for her conviction. As to a concession by the prosecution that
blame would not attach for a breach of the peace to a speaker ˜so long as what
she said was ino¬ensive™, the judge responded:

This will not do. Free speech includes not only the inoffensive but the irritating, the con-
tentious, the eccentric, the heretical, the unwelcome and the provocative provided it does
not tend to provoke violence. Freedom only to speak inoffensively is not worth having.

The conclusion of the court was that the situation perceived by the constable
˜did not justify him in apprehending a breach of the peace, much less a breach
of the peace for which the three women would be responsible™. The appeal was
accordingly allowed.
The principle vindicated in this case was rea¬rmed by the Court of Appeal
in Bibby v Chief Constable of Essex (2000) 164 JP 297. See the comment on these
cases by ATH Smith [2000] CLJ 425.

(b) Common law preventive powers and breach of the peace
Unlike in Scots law, in English law breach of the peace is not itself a criminal
o¬ence (for the o¬ence in Scots law, see eg, Smith v Donnelly 2001 SLT 1007).
In R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, Lord Brown
stated (at [111]) that a breach of the peace, while not itself a criminal o¬ence in
English law, ˜necessarily involves™ the commission of a criminal o¬ence; see
further on this case, below. Under English law a magistrate may ˜bind over™ an
individual to keep the peace, meaning that the individual may forfeit a sum of
money if he or she subsequently breaches the peace (Magistrates™ Courts Act
1980, s 115). Refusal to be bound over to keep the peace is an o¬ence in English
law, punishable by up to six months™ imprisonment. (These principles date back
to at least the fourteenth century: see the Justices of the Peace Act 1361; for
commentary see Feldman [1988] CLJ 101.) Under the common law the police
possess a preventive power of arrest in anticipation of a breach of the peace.
805 Liberty and the constitution

The anticipated breach of the peace must be ˜imminent™ (see below). This is not
only a power: it is in some circumstances a duty. Moreover, it is a duty that is
shared by the police and by citizens alike. In Albert v Lavin [1982] AC 546, Lord
Diplock stated (at 565) 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.

The police also possess a power, vehemently contested by civil liberties commen-
tators, to enter private premises to prevent an anticipated breach of the peace (see
the controversial decision in Thomas v Sawkins [1935] 2 KB 249; see further
McLeod v Metropolitan Police Commissioner [1994] 4 All ER 553 and McLeod
v United Kingdom (1999) 27 EHRR 493; for commentary on Thomas v Sawkins,
see K Ewing and (Gearty, The Struggle for Civil Liberties: Political Freedom and the
Rule of Law in Britain 1914“1945 (2000), pp 289“95).
˜Breach of the peace™ is a concept that has been variously de¬ned. In R v Chief
Constable of Devon and Cornwall Police, ex p CEGB [1982] QB 458, 471, Lord
Denning MR went so far as to proclaim that ˜There is a breach of the peace when-
ever a person who is lawfully carrying out his work is unlawfully and physically
prevented by another from doing it . . . If anyone unlawfully and physically
obstructs the worker, by lying down or chaining himself to a rig or the like, he is
guilty of a breach of the peace.™ (Other members of the Court of Appeal o¬ered
narrower de¬nitions in this case.) Given the range of intrusive and coercive
powers accorded to the police in anticipation of breach of the peace, were such
a broad de¬nition to stand, the exercise of such police powers would clearly fall
foul of Convention rights. In Percy v DPP [1995] 1 WLR 1382 the court made it
clear that there could be no breach of the peace without violence or the threat of
violence. That said, however, the violence does not have to be perpetrated by the
person arrested: it is su¬cient if violence from another party is a natural conse-
quence of his action. The European Court of Human Rights has ruled that, given
(and subject to) this clari¬cation, arrests for breach of the peace do not (without
some further problem) breach Article 5(1) ECHR: see Steel v United Kingdom
(1998) 28 EHRR 603. But cf Hashman v United Kingdom (2000) 30 EHRR 241,
where the Court held that a binding over order to be ˜of good behaviour™ was in
breach of Article 10, and McLeod v United Kingdom (above), where the Court
held that a particular use of the Thomas v Sawkins power to enter private
premises in anticipation of a breach of the peace was not justi¬ed and was
in breach of Article 8. (For commentary on these cases, see Fenwick and
Phillipson, ˜Direct action, Convention values and the Human Rights Act™ (2001)
21 LS 535, 553“7.)
806 British Government and the Constitution

In Moss v McLachlan [1985] IRLR 76 the Divisional Court con¬rmed that
preventive action may be taken only if the o¬cers ˜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™, but the court™s application
of this principle to the facts of the case caused controversy. The case arose
from the miners™ strike of 1984“85. Disorder had occurred at collieries in
Nottinghamshire and police were stationed at a road junction in the county to
prevent striking miners from taking part in mass pickets at any of four nearby
collieries. It was held that the police had acted lawfully in stopping a group of
about sixty miners from proceeding in cars to join a mass picket at one or other
of the collieries (the nearest being one-and-a-half to two miles away), since
there was a substantial risk that an outbreak of violence would result. The like-
lihood of a breach of the peace, said the court, was ˜imminent, immediate and
not remote™. Four miners who had refused police orders to turn back were held
rightly convicted of obstructing the police in the execution of their duty,
although it was not shown that any of them had done anything from which an
intention to commit acts of violence could be inferred. (For criticism of the
decision see eg, Newbold [1985] PL 30.)
These issues arose again in the following case.

R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55
Ms Laporte was travelling on a coach from London to Gloucestershire in order
to take part in a protest against the Iraq war at a US Air Force base at Fairford,
which is in that county. Several coachloads of protesters were making the same
journey. The police had received intelligence that a number of the passengers
intended to breach the peace and that not all of the protesters would act peace-
fully. A few miles from Fairford, at a place called Lechlade, the police stopped
the coaches, boarded them and searched them. It was apparently impossible for
the police to identify with certainty which of the passengers intended to protest
violently and which peacefully. All the passengers were ordered to return to
London and were escorted throughout the two-and-a-half hour journey by the
police. The coaches were not allowed to stop and no passenger was permitted
to disembark until the coaches reached London.
On an application for judicial review the claimant argued that the police
had acted unlawfully (1) in preventing her from travelling to the demonstra-
tion at Fairford and (2) in returning her to London in the manner described
above. The Divisional Court and the Court of Appeal held against the
claimant on the ¬rst point (both courts expressly relying on Moss v McLachlan,
above) and for the claimant on the second point. The House of Lords unani-
mously allowed the claimant™s appeal (and unanimously dismissed the Chief
Constable™s cross-appeal). As Lord Brown expressed it (at [115]), the problem
with the judgments of the lower courts was, in the view of the Law Lords, that,
on the approach adopted there ˜the police are under a duty to take reasonable
807 Liberty and the constitution

steps to prevent a breach of the peace from becoming imminent (rather than
which is imminent)™.
While their Lordships declined to overrule the decision in Moss v McLachlan
they distinguished it on the facts. Lord Brown (at [118]) said of the case that it
had gone ˜to the furthermost limits of any acceptable view of imminence, and
then only on the basis that those prevented from attending the demonstration
were indeed manifestly intent on violence™. Lord Carswell summarised the legal
issues in Laporte in the following, stark, manner, at [92]:


. 147
( 155 .)