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On 13 November last year, the House of Lords gave its judgement on the long running Fairford Coach Action case. It was a complete victory on all points for Jane Laporte who had taken the test case. However, the devil is in the detail. Andy Meinke takes a goodlook at the judgement and what it means for future protests.
Fairford Coach Case: Cautious victory for the right to protest
Just the facts M'Lud...
On 22 March 2003, three coaches carrying around 120 protesters travelled to USAF Fairford from London for an anti-war demonstration. It was the first weekend of the Iraq War. They were stopped and searched at the village of Lechlade, three miles from Fairford. After being held for two hours they were let back on the coaches, but instead of being allowed to proceed to the authorised demonstration they were forcibly escorted, non-stop, back to London. (For details see http://www.fairfordcoachaction.org.uk/ .)
The case which reached theLords last November was a judicial review of Gloucestershire Constabulary's decision to do this. The Divisional court and Court of Appeal had earlier ruled that the cops were wrong to effectively imprison people on the coaches back to London, but justified in stopping people proceeding to Fairford in the first place. Five Law Lords sat on the appeal and each gave detailed and different reasoning for their decisions. You can read the judgement at http://www.publications.parliament.uk/pa/ld200607/ldjudgm/jd131206/lapor-1.htm . In brief, Lords Bingham, Brown and Mance gave very favourable opinions but Rodger and Carswell were more grudging. Unfortunately this does not make for a clear and simple position.
Breaching the peace
The focus of the case was on the power the police have to prevent a Breach of the Peace.
Breach of the Peace is not a criminal offence, but occurs wherever violence is used or threatened to a person or their property in their presence (R Vs Howell 1982). Case law (AlbertVs Lavin 1982) reaffirms that everyone can act to prevent breaches of the peace, but only the police have an enforceable duty to do so. Gloucestershire Constabulary argued that in exercising their duty to prevent a Breach of the Peace, a Constable “may and must do whatever they reasonably judge to be reasonable”. Now this would have given carte blanche to all over-eager coppers across England and Wales, but fortunately all the Lords ruled against this approach. Instead they set a standard of “Imminence”, which they defined as being something objectively likely to happen and,while not setting a time limit, ruled out the suggestion that it encompassed things about to happen in the sense of “Jane was about to go to university”. They also strongly backed Lord Justice Sedley's judgement in Redmond-Bate v DPP 1998 – that action to prevent a Breach of the Peace should be directed at who was acting unlawfully or at least unreasonably provoking unlawfulness. The Lords accepted the argument that the use of Breachof the Peace had to be very tightly controlled, if only because everyone could use it -- including against the police!
Moss but no more than
In ruling that the cops were entitled to prevent protesters from going to Fairford, both the Divisional Court (judges May and Harrison) and Court of Appeal (judges Woolf, Clarkeand Rix) relied on a case from the miners' strike called Moss vs Mclachlan. Here, striking miners were stopped several miles away from a coalfield they intended to picket and were arrested for obstruction of the police when they tried to push past police to get there.
Lord Mance in his judgement doubted that the courts would reach the same conclusion today ,while Lords Bingham Rodgier and Carswell gave guarded sup -port for the Moss decision. The overall result seems to be best expressed in Lord Brown' s judgement that, although the Moss situation would still be justified, albeit on a certain view of the facts, it represents the “furthermost limits of any acceptable view of imminence”.
But what good came of it?
One important case that is likely to be affected positively by the Fairford ruling is the Mayday 2001 Oxford Circus case (Austin Saxby vs the Met). This was lost at the Divisional Court with judge Tugenhat ruling that the police were entitled to keep several thousand people contained in Oxford Circus for up to eight hours--without the likelihood of ever being brought before a lawful authority.
This judgement is being appealed and comes before the Court of Appeal in March. The Metropolitan Police argued that no ruling prejudicial to this case be made. While the Law Lords didn't directly comment on it,there are hopeful signs that we may get a better judgement fol -lowing the Fairford ruling.
Principally, Lord Bingham stated that parliament had “conferred carefully defined powers and imposed carefully defined duties” on the police to regulate demonstrations, and any extension should not come from the courts but needs “the wide consultation and inquiry and democratic consideration which should characterise the legislative process”. Good to know the judiciary are as sarky as ever. BOP and POP The key implications seem to be that the cops have lost the power to prevent people going to lawful demonstrations and Breach of the Peace has been deemed unsuitable for regulating protests. Crucially, the Law Lords con firmed that actions short of arrest to prevent a Breach of the Peace can only allowed if arrest itself would be lawful in the circumstances. Now just because something is against the law it doesn't mean the cops won't do it, but if we win the Austin Saxby case--and containment to prevent a Breach of the Peace is determined to be unlawful — there would need to be a whole sale reform of public order policing (POP!) tactics.
On the other hand there maybe negative feedback with parliament bringing in even more anti-protest legislation. As always, the driving force behind getting concessions from the state is activism from the people.
“T'was a famous victory”
OK, so the Lords ain't outlawed war — but it's still a result. To get it has required a lot of hard work from John Halford and the team at Bindmans solicitors, as well as impressive forensic oratory from barristers Ben Emmerson and Michael Fordham. However, the lesson for activists is that to get the best results you have to be actively involved instructing your lawyers. Jane and her supporters have done a magnificent job of joint publicity and legal work while uniting diverse views amongst the broad spectrum of protesters on the coaches, and it's to them we principally owe this victory (“positive resolution” if you're a hippie).
- British and Irish Legal Information Institute: http://www.bailii.org/ Has judgements in most significant cases.
- The UK Statute Law Database: http://www.statutelaw.gov.uk/ Has the full text of laws passed by parliament currently in force
- Association of Chief Police Officers: http://www.acpo.police.uk/ Has "keeping the peace" - the cops' guide for public order strategy.