. 148
( 155 .)


the appellant . . . was prevented from taking part in a lawful demonstration at the Fairford
air base. In a country which prides itself on the degree of liberty available to all citizens the
law must take this curtailment of her freedom of action seriously.

The signi¬cance of their Lordships™ ruling in Laporte is further revealed in the
following passages from the opinion of Lord Bingham:

Lord Bingham: . . . Reduced to essentials, the argument of Mr Emmerson QC for the claimant
rested on four propositions:
(1) Subject to Articles 10(2) and 11(2) of the European Convention, the claimant had a
right to attend the lawful assembly at RAF Fairford in order to express her strong opposition
to the war against Iraq.
(2) The conduct of the Chief Constable . . . in stopping the coach on which the claimant
was travelling at Lechlade and not allowing it to continue its intended journey to Fairford,
was an interference by a public authority with the claimant™s exercise of her rights under
Articles 10 and 11.
(3) The burden of justifying an interference with the exercise of a Convention right such
as those protected by Articles 10 and 11 lies on the public authority which has interfered
with such exercise, in this case the Chief Constable.
(4) The interference by the Chief Constable in this case was for a legitimate purpose but
(a) was not prescribed by law, because not warranted under domestic law, and (b) was not
necessary in a democratic society, because it was (i) premature and (ii) indiscriminate and
was accordingly disproportionate.
Mr Freeland QC, for the Chief Constable, did not contest the correctness of propositions
(1), (2) and (3), and it was common ground that the Chief Constable acted in the interests of
national security, for the prevention of disorder or crime or for the protection of the rights
of others, these being legitimate purposes under Articles 10(2) and 11(2). The remainder of
what I have called proposition (4) was, however, strongly contested between the parties.
Mr Emmerson argued that the Chief Constable™s interference was not prescribed by law
because not warranted by domestic legal authority. According to that authority there is a
power and duty resting on constable and private citizen alike to prevent a breach of the peace
which reasonably appears to be about to be committed. That is the test laid down in Albert
v Lavin [1982] AC 546 [above] . . . It refers to an event which is imminent, on the point of
happening. The test is the same whether the intervention is by arrest or . . . by action short
808 British Government and the Constitution

of arrest. There is nothing in domestic authority to support the proposition that action short
of arrest may be taken when a breach of the peace is not so imminent as would be neces-
sary to justify an arrest. Here, Mr Lambert [the senior police officer at the scene] did not
think a breach of the peace was so imminent as to justify an arrest. He recorded that
judgment at 10.45am. There is no evidence to suggest that his judgment ever altered. It was,
in any event, plainly correct. It did not and could not appear that a breach of the peace was
about to be committed at Lechlade [not all their Lordships agreed with Lord Bingham on this
point: all were agreed that Mr Lambert did not in fact consider that a breach of the peace
was imminent; Lords Bingham, Brown and Mance indicated that they thought Mr Lambert
could not on the facts have come to any other view; Lords Rodger and Carswell were explicit
in resting their opinions on the fact that Mr Lambert considered that there was no imminent
threat to the peace rather than on any view that such a conclusion was unavailable to him,
see eg, [71], [105], [142]]. The conduct of Mr Lambert was not governed by some general
test of reasonableness but by the Albert v Lavin test of whether it reasonably appeared that
a breach of the peace was about to be committed. By that standard Mr Lambert™s conduct,
however well-intentioned, was unlawful in domestic law . . .
Mr Freeland took issue with this argument. The true principle of domestic law is, he sub-
mitted, that the police may and must do whatever they reasonably judge to be reasonable
to prevent a breach of the peace. The only legal restriction on what steps may be taken by
the police is one of reasonableness. There is no absolute requirement of imminence before
the power to take reasonable steps arises, although questions of imminence will be relevant
to what is reasonable. A breach of the peace need not be apprehended to take place in the
immediate future for the power and duty to prevent it to arise. Mr Lambert™s action was
judged by the courts below to be reasonable, and it therefore met the standard prescribed
by domestic law . . .
Mr Emmerson advanced a further, but linked, reason why Mr Lambert™s interference with
the claimant™s right to demonstrate, by preventing her going beyond Lechlade, was not
prescribed by law. It was that domestic law only permitted action to prevent a breach of the
peace ˜by the person arrested™ (R v Howell [1982] QB 416, p 426) or against ˜the person who
is threatening to break the peace™ (Albert v Lavin, above, per Lord Diplock, p 565). Even if,
contrary to his submission, some of those on board the coaches reasonably appeared to be
about to breach the peace, there was no reasonable ground to infer that all of them were,
or that the claimant was. Mr Freeland answered this ˜causal nexus™ submission by relying on
the general test of reasonableness already summarised, and by pointing to the impractica-
bility of differentiating, at Lechlade, between those (if any) who were and those who were
not about to breach the peace.
I am persuaded, for very much the reasons advanced by Mr Emmerson ( . . . above), that
the Chief Constable™s interference with the claimant™s right to demonstrate at a lawful assem-
bly at RAF Fairford was not prescribed by law . . .
I would add . . . that if (on which I express no opinion) the public interest requires that
the power of the police to control demonstrations of this kind should be extended, any such
extension should in my opinion be effected by legislative enactment and not judicial deci-
sion. As the Strasbourg authorities . . . make clear, Article 10 and 11 rights are fundamental
809 Liberty and the constitution

rights, to be protected as such. Any prior restraint on their exercise must be scrutinised with
particular care. The Convention test of necessity does not require that a restriction be indis-
pensable, but nor is it enough that it be useful, reasonable or desirable: Handyside v United
Kingdom (1976) 1 EHRR 737, para 48; Silver v United Kingdom (1983) 5 EHRR 347, para 97.
Assessment of whether a new restriction meets the exacting Convention test of necessity
calls in the first instance for the wide consultation and inquiry and democratic consideration
which should characterise the legislative process, not the more narrowly focused process
of judicial decision. This is not a field in which judicial development of the law is at all
In contending that the police action at Lechlade failed the Convention test of proportion-
ality because it was premature and indiscriminate, Mr Emmerson relied on many of the
matters already referred to. The action was premature because there was no hint of disor-
der at Lechlade and no reason to apprehend an immediate outburst of disorder by the
claimant and her fellow passengers when they left their coaches at the designated drop-off
points in Fairford and gathered in the designated assembly area before processing to the
base. Because the action was premature it was necessarily indiscriminate because the police
could not at that stage identify those (if any) of the passengers who appeared to be about
to commit a breach of the peace. By taking action when no breach of the peace was in the
offing, the police were obliged to take action against the sheep as well as the goats.
Mr Freeland resisted this contention also. He relied on Mr Lambert™s belief, held by the
courts below to be reasonable, that there would be disorder once the coaches reached
Fairford. Given the intelligence known to the police . . ., the items found on the coaches and
the unwillingness of the passengers to acknowledge ownership of these items or (in
many cases) give their names, Mr Lambert was entitled to find that the 120 passengers had
a collective intent to cause a breach of the peace. These considerations justified him in acting
when and as he did.
I would acknowledge the danger of hindsight, and I would accept that the judgment of
the officer on the spot, in the exigency of the moment, deserves respect. But making all
allowances, I cannot accept the Chief Constable™s argument. It was entirely reasonable to
suppose that some of those on board the coaches might wish to cause damage and injury
to the base at RAF Fairford, and to enter the base with a view to causing further damage
and injury. It was not reasonable to suppose that even these passengers simply wanted a
violent confrontation with the police, which they could have had in the lay-by. Nor was it
reasonable to anticipate an outburst of disorder on arrival of these passengers in the assem-
bly area or during the procession to the base, during which time the police would be in close
attendance and well able to identify and arrest those who showed a violent propensity or
breached the conditions to which the assembly and procession were subject. The focus of
any disorder was expected to be in the bell-mouth area outside the base, and the police
could arrest trouble-makers then and there . . . There was no reason (other than her refusal
to give her name, which however irritating to the police was entirely lawful) to view the
claimant as other than a committed, peaceful demonstrator. It was wholly disproportionate
to restrict her exercise of her rights under Articles 10 and 11 because she was in the company
of others some of whom might, at some time in the future, breach the peace.
810 British Government and the Constitution

This decision may be contrasted with that in Austin v Metropolitan Police
Commissioner [2005] EWHC 480, [2005] HRLR 20. Austin concerned the polic-
ing in London of the May Day protests of 2001, when the police kept about
3,000 assorted anti-globalisation and anti-capitalist protesters con¬ned at
Oxford Circus for seven hours (from about 2.30pm until about 9.30pm).
Tugendhat J held that this action engaged but did not breach Article 5 ECHR
and that while the con¬nement constituted false imprisonment, it was justi¬ed
under the doctrine of necessity.

(c) Freedom of assembly as a ˜constitutional right™
In the traditional understanding of a citizen™s rights as being, in general, merely
residual liberties, our law formerly took the position that there was no right of
assembly but only a liberty for people to assemble within whatever limits and
prohibitions the law might impose. As Lord Hewart said in Duncan v Jones
(above), ˜English law does not recognise any special right of public meeting for
political or other purposes™. In more recent times, however, the courts came to
recognise freedom of assembly as having positive value as a constitutional right.
In Hubbard v Pitt [1976] QB 142 Lord Denning, in a dissenting judgment, vin-
dicated the right to demonstrate. The defendants in this case had picketed the
premises of a ¬rm of estate agents in protest against the ¬rm™s alleged anti-social
practices directed against tenants in the area. The ¬rm having sued for an
injunction and damages for the tort of nuisance, the majority of the Court of
Appeal held in interlocutory proceedings that there was a serious issue of
private nuisance to be tried, and upheld an interim injunction granted (on
di¬erent grounds) by the court below. Lord Denning, who would have dis-
charged the injunction, said (at 178):

Here we have to consider the right to demonstrate and the right to protest on matters of
public concern. These are rights which it is in the public interest that individuals should
possess; and, indeed, that they should exercise without impediment so long as no wrongful
act is done. It is often the only means by which grievances can be brought to the knowledge
of those in authority “ at any rate with such impact as to gain a remedy. Our history is full
of warnings against suppression of these rights. Most notable was the demonstration at
St Peter™s Fields, Manchester, in 1819 in support of universal suffrage. The magistrates sought
to stop it. At least 12 were killed and hundreds injured. Afterwards the Court of Common
Council of London affirmed ˜the undoubted right of Englishmen to assemble together for the
purpose of deliberating upon public grievances™. Such is the right of assembly. So also is the
right to meet together, to go in procession, to demonstrate and to protest on matters of public
concern. As long as all is done peaceably and in good order, without threats or incitement
to violence or obstruction to traffic, it is not prohibited.

It was time, Lord Denning went on to say, for the courts to recognise the right
to demonstrate and to protest. In Hirst v Chief Constable of West Yorkshire
(1986) 85 Cr App Rep 143 the defendants, who had been demonstrating
811 Liberty and the constitution

outside a furrier™s shop against the use of animal fur, were charged with an
o¬ence contrary to the Highways Act 1980, section 137. An o¬ence is com-
mitted under this section if a person ˜without lawful authority or excuse, in
any way wilfully obstructs the free passage along a highway™. The defendants
were convicted by justices, but the Divisional Court allowed their appeal, for
the justices had not asked themselves whether the conduct of the defendants
was in all the circumstances a reasonable use of the highway, such as would
have constituted a ˜lawful excuse™ in terms of the section. The place, the dura-
tion and the purpose of the gathering should have been considered. If this
were done, said Otton LJ after quoting Lord Denning™s dictum (above), the
˜balance would be properly struck and . . . the “freedom of protest on issues of
public concern” would be given the recognition it deserves™. The decision in
this case was approved by Lords Irvine LC and Hutton in DPP v Jones [1999]
2 AC 240 (on which, see below).
Article 11 ECHR, a Convention right under the Human Rights Act, protects
the right to assemble peacefully, whether in a stationary gathering or in a pro-
cession. The European Court of Human Rights has held that an assembly may
be peaceful and qualify for protection even though it may annoy or cause
o¬ence and counter-demonstrators threaten to disrupt it with violence: public
authorities are required to take all reasonable and appropriate measures to
protect the peaceful demonstrators from disruption by their violent opponents.
See Plattform „rzte für das Leben v Austria (1988) 13 EHRR 204. (Compare
Redmond-Bate v DPP, above, and see R v Chief Constable of Sussex, ex p
International Trader™s Ferry Ltd [1999] 2 AC 418, in which the House of Lords
held that the duty of the police to protect lawful activities is not absolute and
may be quali¬ed by the resources available to them and the demands of other
policing requirements.) Restrictions may properly be imposed by law on the
right of assembly on the grounds speci¬ed in Article 11(2), notably for the pre-
vention of disorder or for the protection of the rights and freedoms of others.
In deciding whether any restriction was justi¬ed in terms of Article 11(2), the
courts must be satis¬ed that there was a pressing social need for the restriction
and that it was proportionate to the legitimate aim pursued. The courts must
closely scrutinise legislative provisions that appear to restrict freedom of assem-
bly and must interpret and give e¬ect to such provisions, so far as it is possible
to do so, in a way which is compatible with the Convention right: Human Rights
Act 1998, section 3(1). Accordingly, legislation should not be read as authoris-
ing public authorities “ whether the Home Secretary, a local authority or the
police “ to act incompatibly with the right to freedom of assembly, unless such
an interpretation is unavoidable.

(d) Statutory restrictions on freedom of assembly
Public processions and assemblies are subject to the controls for which pro-
vision is made in sections 11“14 of the Public Order Act 1986. They are
summarised in the following memorandum.
812 British Government and the Constitution

The National Heritage Committee, Fourth Report, HC 294-III of
1992“93, Appendix 3: Memorandum submitted by the Home Office
P U B L I C O R D E R A C T 1986

Police powers to control assemblies and processions

1. The purpose of the legislation is to give the police adequate powers to prevent and
control disorder and to ensure that demonstrations are held without causing undue incon-
venience to the rights of others.
2. Under sections 12 and 14 of the Public Order Act the police may place conditions (for
example, as to numbers, route, location) on those organising and taking part in public assem-
blies of 20 or more people and public processions if the police reasonably believe that the
assembly or procession is likely to result in: serious public disorder; or serious damage to
property; or serious disruption to the life of the community; or if its purpose is to coerce.
3. A ˜public place™ within the meaning of the 1986 Act means any highway or any place
to which at the material time the public has access, on payment or otherwise, as of right or
by virtue of express or implied permission.
4. It is an offence for an organiser of a public procession or public assembly or a person
taking part in such a procession or assembly knowingly to fail to comply with a condition
imposed by the police, but it is a defence to prove that the failure arose from circumstances
beyond his control. A constable may arrest without warrant anyone he reasonably suspects
is committing such an offence, which is punishable by up to three months™ imprisonment or
a level 4 fine.

Advance notice of processions

5. Under section 11 organisers of public processions are normally required to give 6 days
notice to the police of the date, time and proposed route, and the name and address of the
proposed organiser. This requirement does not apply where the procession is one commonly
or customarily held in the area or is a funeral procession. There is no such requirement for
public assemblies.

Bans on processions

6. Under section 13 the police can apply to the local authority (but in London direct to
the Home Secretary) for a ban on public processions (but not static assemblies) [see further
on this point, below] if serious public disorder cannot be avoided by the imposition of con-
ditions. Before a banning order is made the Home Secretary™s consent is required.

It is to be noted that the police may impose conditions on processions and
assemblies where it is reasonably believed that they may result in ˜serious
disruption to the life of the community™. These powers may be exercised even if
there is no threat of violence or a breach of the peace. Decisions to impose con-


. 148
( 155 .)