Helga Law Journal - 01.01.2021, Síða 137

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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felt able to rule that their arrest and detention did not comply with English law.
Their right to liberty under Article 5 had therefore been violated.41
1.6 Recent Common Law Development
1.6.1 The Test of Imminence: R (Laporte) v Chief Constable of Gloucestershire
Ms Laporte was one among a group of protesters travelling from London to the
Royal Air Force (RAF) Fairford base in Gloucestershire to take part in an anti-
war demonstration. As directed by the respondent chief constable, the coaches
were intercepted before arrival, and the passengers were searched. Concluding
that some, but not necessarily all, intended to cause a breach of the peace at the
demonstration, the police officers conducting the search ordered all protesters
to return to their coaches and escorted them back to London. The chief
constable maintained that he had information that some of the protesters were
members of a group called ‘Wombles’, one of whose recent demonstrations had
escalated into serious violence, and that it was therefore likely that a breach of
the peace would be committed at RAF Fairford. Ms Laporte brought judicial
review proceedings, asserting that the actions of the police constituted unlawful
interferences with the exercise of her freedom of expression and assembly,
protected by Articles 10 and 11.42
The HL – overturning the Court of Appeal (CA) and finding for Ms Laporte
– developed the common law in relation to police powers to prevent breaches of
the peace, so that it accords more closely with Articles 10 and 11 of the ECHR.
Giving the leading judgment, Lord Bingham reaffirmed that the test of
lawfulness applicable to both the power to arrest and take action short of arrest
remained as stated in Albert v Lavin:43 “whether it reasonably appeared that a
breach of the peace was about to be committed.”44 In other words, the imminence
of the breach of the peace, and not the reasonableness of the police response
was the test which would have to be satisfied for the interference to be
‘prescribed by law’ in ECHR terms.45 The test of reasonableness which the DC
and the CA had preferred was not established in any previous authorities,46 and
was too “uncertain and undefined” – according to Lord Brown – because it
“would allow for reduced imminence for lesser restraint … on some sort of
sliding scale,” 47 and thus lead to ‘too great an inroad upon liberty’. 48

41 Steel v UK (n 53). For the same reasons, the measures taken against applicants one and two were
proportionate, whereas those taken against applicants three, four and five – disproportionate.
42 R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55.
43 Albert v Lavin [1982] AC 546.
44 R (Laporte) (n 59) at [39] (Lord Bingham).
45 Mead (n 4) 337.
46 R (Laporte) (n 59) at [47] (Lord Bingham).
47 ibid at [114]-[115] (Lord Brown).
48 ibid.
The question of reasonableness is still relevant to the assessment of the
proportionality of the police decision.49 For Lord Bingham, the police officers’
inference that all of the passengers were likely to cause a breach of the peace at
Fairford because some of them were ‘Wombles’ or were found to carry
“offending articles” (which were seized) was not reasonable. Neither was the fear
of disorder at the air base given that the police had already imposed conditions
under section 12 of the POA and had established a sizeable presence so as to be
able to identify and arrest individuals who violated them.50 In light of these and
other considerations, the Lords decided that “It was wholly disproportionate to
restrict [the appellant’s] 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.”51 The right to protest is fundamental in a democratic
society and so it must not be unnecessarily restricted.
According to David Mead, “Laporte mark[ed] a significant change in judicial
approach to what is permissible when it comes to policing peaceful protest” and
“provided a clear signal to the limits of tolerable pre-emptive action.”52 The
police may lawfully arrest or take action short of arrest only when the threat of a
breach of the peace is imminent, and only against individual protesters who
appear likely to cause it.53 However, when evaluated against the Lords’ decision
in Austin three years later, Laporte is far from a landslide victory for the right to
protest. The test which was reformulated this time was not one from the
common law but from ECtHR jurisprudence on Article 5, namely the test for
deprivation of liberty. Arguably, later cases such as Austin,54 have removed from
the scope of Article 5 indiscriminate measures of crowd control and legitimised
their usage against peaceful protesters and even passers-by. To that extent, it
represents an erosion of the protection of the right to protest in the UK.
1.7 Conclusion
The last half-century has seen the transformation of the right to protest from a
mere common law liberty to a fully-fledged positive right guaranteed both under
the common law and the ECHR. Its constitutional elevation has been aided by
the passage of the HRA, which imposes a duty on public authorities to act
compatibly with Convention rights, including Articles 10 and 11. This has not,
however, displaced the maintenance of public order as the primary concern of
the UK legislature in the context of public protest. To the contrary, the scope of
permissible restrictions on the right to protest has widened as the legal powers
of the police to arrest or take action short of arrest to prevent breaches of the

49 Mead (n 4) 338.
50 R (Laporte) (n 59) at [55] (Lord Bingham).
51 ibid.
52 Mead (n 4) 340.
53 ibid 348.
54 Austin and Others v UK, no 39692/09, 40713/09 and 41008/09.