Member Article

In December last year, the House of Lords handed down its judgment in the case of R (on the application of Laporte) v Chief Constable of Gloucestershire.  The case considered the proper balance to be struck between an individual's Article 10 and 11 rights to freedom of expression and freedom of assembly and association under the European Convention on Human Rights ('ECHR'), and the Police's powers to prevent breaches of the peace.

In 2003, the appellant was one of a number of coach passengers travelling from London to an RAF base in Gloucestershire to take part in a demonstration against the war in Iraq.  The Gloucestershire police, concerned about the risk posed by some protesters on the buses in respect of a potential breach of the peace, prevented further travel of the coaches by forcing them to stop in a lay-by and then return to London.

The appellant argued that the Police's actions in preventing her attendance at the protest breached her rights under both the Article 10, the right to freedom of expression, and Article 11, the right to freedom of assembly and association, of the ECHR.  Neither of these rights is absolute; the exercise of both rights may be restricted if the restriction is: prescribed by law; necessary in a democratic society; and directed to any one of a number of specified ends.

The Police's argument was that their conduct in this case was a legitimate restriction on the rights concerned.  The Police have a power, at common law, to take preventive measures to prevent future breaches of the peace.  However, the House of Lords held that this power did not allow the Police to take indiscriminate measures in seeking to prevent a breach of the peace.  In this instance, the Court held that the Police's decision to deny the protesters access to the vicinity of the RAF base by forcing them back to London failed the ECHR test of proportionality.  In particular, the Court concluded that the Police's action was premature – the action was taken at a stage where no disturbance had begun - the House of Lords stated that 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'.

In addition, case law suggests that the common law power is only operative where a breach of the peace was 'imminent'.  Preventive action is therefore permitted where there is a reasonable apprehension of imminent breach of the peace.  In this case, it was held that there was no sense of urgency: the coaches had not yet arrived at the place of protest and no disturbances occurred whilst the protesters were detained at a lay-by en route to the demonstration.

While the House of Lords acknowledged that it was reasonable to suppose that some passengers on the buses might wish to cause damage to the RAF base, that risk was not sufficient to warrant restriction of the Article 10 and 11 rights of all of the passengers, including the appellant.