Lord Justice Pitchford :
- This is the judgment of the Court to which we have both contributed.
- The claimants, Adam Castle, his sister Rosie, and school friend, Sam Eaton, took part on 24 November 2010 in a demonstration in central London against the proposed rise in university tuition fees and the removal of the Educational Maintenance Allowance. The two boys were then aged 16 years and Rosie was aged 14 years. They arrived in Trafalgar Square at about mid-day. They were not wearing school uniform. Shortly afterwards a crowd which eventually grew to over 3,000 people made its way from Trafalgar Square, along Whitehall, towards Parliament Square. For reasons to which we shall need to return, a decision was taken by the defendant's senior tactical commander at the event, Chief Superintendent ("CS") Michael Johnson, to authorise the containment of the demonstrators within Whitehall. Whitehall was sealed off by police cordons at the Parliament Square and Trafalgar Square ends of Whitehall, and at the side routes from Whitehall towards Embankment. The claimants were among those who remained contained in Whitehall for the rest of the afternoon, Rosie until about 7.00 pm, Adam and Sam until about 8 - 8.30 pm.
- They claim that their containment was unlawful and seek declarations to that effect, together with damages. The claim has been listed for consideration of the application for permission to apply for judicial review, with the review to follow should permission be granted.
Delay
- CPR rule 54.5 requires that the claim form must be filed promptly and in any event not later than 3 months after the grounds first arose. The claim form was issued on 23 February 2011 which, the defendant asserted in writing, was not prompt, and was at the end of the outer time limit. Little information was provided by way of explanation for the delay. At paragraph 7 of the claimants' grounds the following was asserted:
"7. The claimants submit that they have acted promptly in bringing these proceedings. They were not initially aware of any means by which the treatment to which they were subjected on 24 November 2010 could be challenged. In due course, however, through a family connection, contact was made between Adam Castle and an officer of the Children's Commissioner for England who was able to direct him to Bhatt Murphy Solicitors. Bhatt Murphy were then able to arrange to meet with him on 1 February 2011 and with Rosie Castle and Sam Eton on 3 February 2011. Thereafter a letter before claim was sent to the defendant on 7 February 2011 … and the defendant replied on 10 February 2011. Disclosure of the documents referred to at pages 12 – 13 of the defendants' letter of 7 February 2011 to Liberty was received by Bhatt Murphy on 15 February 2011."
- The defendant submitted in writing that it was hardly credible that the claimants were without knowledge or support. Adam's and Rosie's father is a journalist who reports on legal, including human rights, issues. However, on 17 March 2011, Adam Castle made a further witness statement in which he explained that, although there had been a good deal of discussion within the family about the events of 24 November, he had not intended to bring legal proceedings because he did not believe that he could. However, on 17 December, a friend of his older sister sent him an e-mail. She told him that her step-father, the Children's Commissioner, was interested in the issues raised by the events of 24 November and was considering whether there was a means of challenge. Adam expressed his interest. In the New Year he repeated his interest and, on 25 January 2011, he was advised to contact his present solicitors. There was no complaint by the defendant of delay following their first meeting on 1 February 2011.
- We accept that this claim was not brought promptly. However, there are ample grounds for extending time under CPR rule 3.1. No prejudice is identified. The claimants are minors. They had no access to relevant advice until it was fortuitously offered. The issues raised by the claimants have an important public dimension and the defendant is fully prepared to meet the claim. We indicated our provisional view that we should consider the merits of the claim and Mr Hare, for the defendant, quite properly withdrew his argument as to delay.
The grounds of claim
- The following are, in summary form, the grounds upon which the claimants alleged that their detention within the containment was unlawful:
(i) The defendant's decision to contain and, therefore, to detain children constituted a breach of his duty under section 11 Children Act 2004 rendering the containment unlawful;
(ii) In further breach of his duty, the defendant detained the claimants for an excessive period of time and for the unlawful purpose of carrying out searches under section 60 Criminal Justice and Public Order Act 1994, and/or for the purpose of making arrests for offences allegedly committed during the demonstration; thus, the duration of the detention was unlawful.
Accordingly, it is contented that the defendant exceeded his common law power and acted in breach of the claimants' rights under Articles 5, 8, 10, and 11 of the European Convention on Human Rights ("ECHR").
We grant permission for this claim to proceed and shall now turn to the facts.
Background
- There had been a demonstration for similar purposes organised by the National Union of Students 14 days earlier. On 10 November 2010, some 25,000 demonstrators marched from North London to Millbank. A hard core of violent demonstrators, intent on causing serious trouble, diverted from the published route to attack no. 30 Millbank. Windows were smashed and the demonstrators occupied the building. In consequence of these events, which received national news coverage, many arrests were made for criminal damage and aggravated trespass.
- In the days preceding the 24 November event the Metropolitan Police received notification of a public procession and applications in respect of demonstrations contributing towards what was called a "national student walk-out". The University of London Union notified a march from Malet Street to Trafalgar Square commencing at 11.00 am. An organisation called "Youth Fight for Jobs" intended to assemble at Horse Guards Avenue and march between 1.00 and 2.00 pm to Victoria Place via Whitehall and Parliament Square. The "Education Activist Network" intended to protest in Cowley Street, where the Liberal Democrat headquarters is situated, at 1.30 pm, and to hold a further demonstration in Richmond Terrace at 5.00 pm.
- Senior police officers in the metropolis responsible for policing major events such as these are designated in advance for specific tasks under the protocols published in the Manual of Guidance for Keeping the Peace (produced by the National Policing Improvement Agency (NPIA) on behalf of ACPO). Gold Commander is in command of overall strategy. Silver Commander is the officer in tactical command. He is assisted by Bronze Commanders who deliver the manpower on the ground to police the event in accordance with Silver Commander's plan. Silver Commander for the 24 November event was CS Michael Johnson who has wide experience of policing public order events. He had not, however, been personally involved in the policing of the 10 November demonstration. CS Johnson received an intelligence briefing on 16 November. A team from the Metropolitan Police central planning unit ("CO11") had been in discussion with the organisers, negotiating routes, start times and the provision of stewards. It was anticipated that the event would be attended by a large number of students and young people but it was not anticipated that there would be a significant number of school children. November 24 was a normal school day. It was thought that some schools had been targeted by student groups encouraging a walk-out from school but the police had received no notification from either schools or student bodies that school children were expected to attend the demonstration.
- CS Johnson was allocated three senior Bronze Commanders, Superintendents Woods, Van-Orden, and Evans, together with Bronze Reserve Commander Chappell. He had a total of 30 police support units ("PSUs"), comprising about 1000 officers in all at his disposal, split between the bronze commanders. Police officers serving in PSUs are graded at levels 1, 2 and 3. All officers receive basic training in public order duties. All level 1 and 2 officers receive training in the technique known as containment. All officers policing the demonstrations on 24 November had received levels 1 and 2 training. CS Johnson said in his witness statement that he was well aware of the duties of police officers towards the safety and welfare of children. Levels 1 and 2 trained officers receive training as to their responsibility towards vulnerable people including the elderly, the disabled or those in distress. CS Johnson interpreted the policy as applying to children as well as other categories of vulnerable people. Officers are trained not just in crowd management but in the need for respect for the right peacefully to protest.
- CS Johnson explained the policy of the Metropolitan Police when, during a public demonstration, disorder occurs, namely to engage in close physical contact with demonstrators in the form of police cordons. It is more effective and less damaging than more extreme measures such as dispersal tactics using water, CS gas or rubber bullets. Exceptionally, the use of containment may be required, for example, to keep apart opposing groups of demonstrators or to prevent one group intent on trouble from reinforcing another. In May 2000 a large group of demonstrators, which surged up Whitehall towards Parliament Square, caused damage to property and physical injury to police officers attempting to intervene. The situation was managed by keeping the groups apart, one in Trafalgar Square and the other in Whitehall, and by permitting gradual dispersal through the containment in small numbers.
- CS Johnson observes that significant problems can arise when a demonstration which is largely peaceful is infiltrated by those determined on damage to property and violent confrontation with the police. Police officers responsible for policing such events must respond to violent breaches of the peace by using their best endeavours to protect people and property and to arrest the perpetrators. In the process, innocent and peaceful demonstrators are inevitably caught up in events which can be distressing and, if they are contained, frustrating. CS Johnson confirms that when containment is necessary police officers retain discretion to permit individuals to pass beyond the police cordon. It is a judgment which must be made with care. Experience shows that those who pass through the cordon may, once liberated, join together and continue their objectives of damage and violence elsewhere.
- CS Johnson held an intelligence briefing with his bronze commanders on 23 November 2010. The issue of schools was raised. No specific intelligence had been received but it was possible that some university student organisations were targeting the schools with a view to persuading them to join the demonstration. The last time significant numbers of children had been affected by demonstrations was in 2003 during a mass protest against the war in Iraq. It was not known whether containment would be required but it was, the meeting found, necessary to make plans based upon the contingency that it might be.
24 November 2010
- CS Johnson commenced duty at 6.00 am on 24 November. He briefed his command team at 6.30 am. He gave instructions that if it was necessary to authorise containment "vulnerable people" should be taken, or let, out. At 9.40 am CS Johnson held a meeting to update his officers with intelligence. There was no indication that school children were planning to attend the demonstration. School liaison officers had been asked in advance to report on school walk-outs. No specific information had been received that children would be attending. We have been provided with two important sources of information, first, abstracts from contemporaneous radio logs recording messages passing between officers attending the demonstration and their superiors and, second, personal logs written during the course of the day by Gold Commander Broadhurst, Silver Commander Johnson, Bronze 1 Commander Woods, Bronze 2 (South) Commander Van-Orden ("EVO"), Bronze Reserve Commander Chappell and others. These have been helpfully summarised by the claimants in the form of a schedule to which reference was made throughout the hearing.
- As early as 11.02 am an individual protestor was seen damaging a police vehicle in Whitehall, while others were attempting to scale a fence at the Ministry of Defence. By noon it was clear that demonstrators were converging on Trafalgar Square and Parliament Square in ever-increasing numbers. CS Johnson, who was located at the Lambeth operations room, instructed Bronze Commander Chappell to form a contingency plan in case demonstrators attempted to rush into Parliament Square along Whitehall. At 12.05 pm a message was received that "spiker" groups who had attended earlier demonstrations were alighting from buses wearing masks and making their way to Parliament Square. At 12.10 CS Johnson held a meeting with Superintendent Chappell. His information was that the crowd gathering in Trafalgar Square appeared to be planning to move down Whitehall towards Parliament Square. This was not a route which had been notified or approved. Some of the protestors were masking themselves and some were fighting each other. CS Johnson noted in his log:
"I have real concerns based on the group's mood and previous rhetoric (social media) and previous history at Tory HQ that they will attempt or commit criminal acts at PoW [Palace of Westminster] or Cowley Street. Containment may be the only option and have instructed BX reserves to have a plan if required. Numbers in T/Sq have grown significantly. 1,000+. Groups are fighting amongst themselves and are covering their faces believed to disguise their features. This, I believe, is because they are intent on committing criminal acts. I have activated the amber alert process to gather 9 more level 2 PSUs for my deployment. This is based on the current units deployment and the size of crowds gathering in T/Sq and on the march from ULU."
- At 12.14 pm Bronze Commander 1.2 noted a large group of school children with no apparent leadership or direction. At 12.17 pm 200 students moved into Trafalgar Square from Goldsmith College. It appeared that the crowd was intent on a move to Parliament. Square. At the same time a demonstration was taking place in Parliament Square. At 12.20 some of the marchers in Aldwych who were making their way to Trafalgar Square broke away from their police escorts and diverted off route to the Embankment. Reserves were being requested. At 12.25 pm police received a report of a knife fight in Trafalgar Square. Demonstrators in other parts of Trafalgar Square were noted to be in a carnival mood.
Decision to "contain"
- At 12.32 CS Johnson authorised the use of containment in the event that the very large numbers now in Trafalgar Square moved along Whitehall. The entry in his log was:
"Containment of large group (3-5,000) to take place in Whitehall between Parliament Square and Trafalgar Square (flexible). Rationale: this group have become more and more violent and unruly throughout the day. Their actions have been violent (bottles and other debris thrown) as well as overheard conversations that they intend to attack Cowley Street (Lib Dem HQ). This ties in with pre-received intell from social media that this was their intention. The numbers involved make containment the only viable option to prevent crime and further breach of the peace from occurring either at PoW or Cowley Street. There has been several reports of fighting and unruly behaviour in the crowd. Containment officer to be Supt Woods responsibilities as per the instructions, consider necessity, vulnerable people, facilitating press access and proportionality of actions."
In his entry made by 12.31 Superintendent Chappell noted:
"If all in Trafalgar Square move off to Whitehall – accept as far as Parliament Square. Then cordon and containment in Parliament Street. Cannot be allowed past as unable to properly protect vulnerable premises beyond e.g. Cowley and PoW."
- At 12.30 pm intelligence was received that the demonstrators who had gathered at Horse Guards Avenue had had a change of mind. They too were making their way to Trafalgar Square. This was a further departure from the arranged route. At 12.36 one youth was reported in Trafalgar Square to be armed with a knife. At 12.41 a group of some 700 people marching into Whitehall from Trafalgar Square stopped at Whitehall Place, while a break-away group started to run at the police cordon. At 12.42 a mass exodus from Trafalgar Square into Whitehall was reported. A decision was made to permit marchers arriving at Trafalgar Square to join the contained area in Whitehall.
- Meanwhile in Bridge Street, off Parliament Square, at 12.52 there was a report of missiles being thrown at the police. At 12.53 there was further intelligence that protestors would march on Cowley Street with the intention of getting inside the Liberal Democrat headquarters. At 12.56 in Parliament Square a group of a dozen was seen to be masking up and arming themselves with sticks. At 12.57 a number of males in Whitehall were attempting to persuade others to join them to form a larger group.
The containment completed
- At 1.02 pm the containment in Whitehall was reported to be complete. At 1.03 further incidents in Whitehall were reported. Missiles were being thrown; a smoke canister was let off; a determined attack took place on an unoccupied police carrier inadvertently left in the containment zone and fireworks were let off. Yet more demonstrators attempted to join the crowd in Whitehall and about 300 were permitted to do so. At 1.07 Bronze Commander 1 recorded his instructions "vulnerable persons to be identified if possible". He noted that his principal responsibility was for crowd safety and the protection of vulnerable people within the containment. At the time of his note the weather conditions were "OK" and there was no crushing. At 1.12 an officer in Parliament Square was seriously injured. At 1.25 "young girls" who were permitted to leave the Whitehall containment spoke of a number of people in the crowd with knives. One girl thought she had seen a man near the damaged police carrier showing off a firearm hidden under his jacket. At 1.25 one of the organisers of the demonstration, Hannah Snell, was located within the containment area. She was asked to communicate with the crowd with the aid of a loud hailer to inform them that vulnerable people should make themselves known to the police. At 1.30 pm there appeared to be about 2,000 people within the containment. Most appeared passive but some missiles were being thrown at police. At 1.45 Gold Commander Broadhurst noted that water and toilets were to be provided within, and the vulnerable allowed to leave, the containment.
- Between 1.30 pm and 3.30 pm the incidents reported in Whitehall included the following: ignition of a deodorant can to make a mini-flame thrower; a robbery and theft of a Blackberry mobile phone and money; intelligence of an intention to break into Downing Street; police officers pulled into the crowd; a group of 15 students with hard hats and rucksacks paying close attention to the rear wall of No. 10 Downing Street; lighting of fires near King Charles Street; arrests for violent disorder; officers under sustained attack from both sides of the cordon; an arrest for attempted burglary; attempts to set fire to the police carrier; kit being removed from the carrier; the carrier being rocked from side to side in an attempt to turn it over; police lines being broken; protesters attempting to throw metal crowd barriers; flares being lit; attempts to break out of the containment; escapees wearing masks re-joining the demonstration behind mounted police; 200-300 males and females throwing missiles; activists whipping up the crowd.
Attempts to release demonstrators from the containment
- At 2.10 pm Bronze Commander 2.1 again ordered that students should be allowed to leave if they were young or vulnerable. At 2.29 Bronze Commander 1.2 recorded that those who were being released from the containment were not leaving the area but re-grouping behind police lines. He ordered that the cordon be maintained. At 2.45 there was a discussion between the Silver and Bronze Commanders. A request was made to release those on the "fringe" of the demonstration. CS Johnson declined permission because those persons may have been involved in crime. In his witness statement CS Johnson explained that he was not referring to the vulnerable. That remained a matter for the officers' discretion. However, those who had been active in violence and damage not infrequently attempted to blend in with more peaceful segments of the crowd in order to obtain their release and pursue their objectives elsewhere. At 3.10 CS Johnson held a tactical meeting with Bronze Commander 2 (South) and Bronze Commander Reserves. When release from the containment took place (anticipated at 4 pm) there should, he said, be arrests for possession of any stolen property and those leaving should be searched for weapons. In explaining his reasons in his log CS Johnson wrote:
"Rationale: The crowd consists of several young people and those intent on committing crime. There are also numerous inside the containment who have committed crime and we have evidence thereof. I am also aware of how cold it will become and the need not to detain people beyond what is necessary to prevent crime and a breach of the peace. The plan has clear command protocols for B2 to conduct the dispersal while leaving B1 to look after and review containment. ARVs to be in the vicinity due to previous intelligence re: guns and knives."
B2.2 noted in his log that the police were making a slow move up Whitehall to create a sterile area around the damaged police carrier and "to allow people not involved out of the containment and also allow school children and young people out of the containment. School children that were released … then formed up behind the cordon and officers had to speak to them to get them to move away".
- At 3.45 pm Gold Commander Broadhurst entered in his log:
"The containment has been in place since about 12.15 pm. I am satisfied that it is still justified as there is clearly a determined element in the crowd who are out to cause damage… A dispersal plan is being worked up by EVO. This will be slow and controlled and arrests will be made. I believe this is proportionate to the offences that have been committed."
Further violence and release of children
- At 3.56 pm, 200-300 protesters were recorded forming up behind mounted police lines and throwing missiles. At 4.00 pm toilet and water facilities were set up at the Parliament Square end of Whitehall. They were insufficient in number due to the size of the containment but it was too late to order a further supply. At 4.21 there was a report from 54 Whitehall that protesters were trying to force open the door. At 4.37 they were trying the doors of no. 53 and the police cordon at Downing Street was being attacked. At 4.55 pm Bronze 1 commander recorded that there were still school children in uniform in the crowd. It was getting cold. CS Johnson agreed that they should be released in a controlled manner in small numbers. At 5.00 pm a man was seen lighting sticks and throwing them at police. At 5.01 the poppy display at the Cenotaph was set alight. At 5.08 Bronze Reserve Chappell was informed by CS Johnson that he had discussed with B1 commander release from containment of vulnerable people. B1 was doing what was appropriate in the circumstances. The officers were still concerned that there were many people within the containment who had committed serious crimes. It was necessary to identify them if possible. At 5.12 a large crowd made its way towards Downing Street. At 5.21 more than 100 were inciting the crowd at the Parliament Square end of Whitehall. It was believed that they may have been dispersed earlier but they were now re-joining via the Embankment. At 5.23 the traffic situation in Parliament Square was becoming dangerous. A large group alighted at Westminster underground station, went to Bridge Street and sat in the road. At 5.40 pm protesters were climbing up the wall of the Treasury building trying to break windows. At 5.30 pm B1 released approximately 50 youngsters, some in school uniform, from the Parliament Street side of Whitehall. Dispersal was being delayed by the sit down protest in Bridge Street. B2.1 was tasked at 5.35 to identify vulnerable people within the contained crowd in order to facilitate their exit. At 5.37 the police helicopter was instructed to scan the crowd for vulnerable children. It reported back that no obvious small children could be seen. B1 recorded that a steady flow of young people was being released. At 5.54 a group of 30 protesters was noted to be masking up with missiles in their hands. In Horse Guards protesters were breaking up the pavement in street works. At 6.20 B1 expressed his concern about the cold and said that he was fully focussed on emptying the containment of anyone vulnerable. B2.2 was asked to identify vulnerable people within the contained crowd in order to facilitate their exit. At 6.32 a group of about 200 males entered Trafalgar Square from Northumberland Avenue throwing missiles towards windows. It was noted that the main group seemed to be making its way back towards the Strand continuing to throw missiles. At 6.42 about 100 of the protesters from Whitehall were running amok into Trafalgar Square, smashing a window in a bus and throwing rubbish about. At 6.42 Treasury building windows were being smashed. At 6.43 a male was arrested for arson. A bus shelter was set on fire. At 7.00 pm B1 recorded that youngsters were still being released, some in school uniform. B1 officers were searching the crowd for vulnerable people for release. At 7.29 an attempt was made to pull the bus shelter from the ground. At 7.45 pm disturbances were taking place in Trafalgar Square, Northumberland Avenue and outside Charing Cross station.
- At 3.30 pm the police had started to receive complaints that individuals were not being permitted to leave the containment. Five such complaints are recorded in the radio log between 3.30 pm and 5.00 pm. At 7.26 Gold Commander Broadhurst released a press statement as follows:
"We are endeavouring to disperse people from the containment area as quickly as possible. We would emphasise many of the youngest and vulnerable were released a long time ago. Those remaining need to be searched and spoken to by officers and this is being done asap."
The claimants' experience
- We now turn to the experience of the claimants. Adam Castle says that most of the crowd in Trafalgar Square were school children. He and most of his friends were not wearing uniform. Adam and his friends moved into Whitehall where he became separated from Sam. At 2.00 pm Adam decided he wanted to leave so he returned to Trafalgar Square to find that his way was blocked by a police cordon. No reason was given. He then received a mobile telephone call from his father. Mr Castle was a journalist in possession of a press pass. He was able to enter Whitehall with his pass. He met with Adam and Rosie at the Parliament Square end of Whitehall. Only Mr Castle was allowed to leave. He left and came back with food and water. Adam says that he was frightened by what he calls "police charges". The object, according to the radio log to which we have referred, was to move protesters away from the marooned police carrier and the manoeuvre was described as "a slow move". Adam and Rosie remained huddled up to keep warm. He says that to his mind the crowd was peaceful. At 6.00 pm a mounted policeman announced over a megaphone that everyone would be dispersed soon. Sam then joined him. It appeared people were being let out in pairs near Parliament Square. Rosie was allowed out at 7.15 pm. Adam was not. He was released at 8.30 pm from the Trafalgar Square end.
- Rosie Castle also thought that most people in Trafalgar Square were school children. She too moved into Whitehall with the others. She disapproved of the attack on the police carrier. She tried to leave but by then her way was blocked. She was eventually released shortly after 7.00 pm.
- Sam Eaton thought that most people in Trafalgar Square were sixth formers. He tried to exit from Whitehall to Trafalgar Square after about an hour. He was told that no-one was being let out because of the damage done to a police van. There is a reference in the logs to the fact that later in the afternoon release into Trafalgar Square was not permitted because of the vulnerability of police carriers behind the police line. After a time he used one of the "portaloos" and was provided with a bottle of water. He was released from the Trafalgar Square end where pairs were being released every few minutes. The time was 8.00 - 8.30 pm.
- It was common ground between the claimants and the defendant that the claimants were peaceful participants in the demonstration. They were not among the leaders into Whitehall but followed others. It is noticeable that while serious disturbances were taking place the claimants were, for the most part, unaware of them. The explanation is, we consider, that in common with the majority, the claimants kept away from the trouble spots.
Justification for delayed dispersal
- CS Johnson explained in his witness statement at paragraph 49 the circumstances which prevented dispersal of the crowd within the containment area:
"The dispersal took place in staggered stages due to the actions from those contained and those in the area. This was co-ordinated by Superintendent Van-Orden on the scene. It is evident from the public order log of the Containment officer (Bx1) that continuous efforts were being made to identify and release vulnerable people from 13.07 onwards. I note that at 17.38 a police helicopter was asked to scan the crowd to identify vulnerable persons who may be in school uniform. Ultimately, the dispersal was delayed due to violence taking place outside the containment. Efforts to identify and release the vulnerable were constrained by the continuing need to preserve public order and protect the public among a crowd of thousands. The crowd outside the containment continued to engage in violence and this prevented the earlier release process. There were instances of criminal damage to local shops, assaults on police and public order offences."
Grounds
- We shall now turn to the grounds of claim. They raise discrete issues of law which we shall consider in turn.
Issue 1 - application of section 11 Children Act 2004
- The claimants' first ground of claim concerns what, they submit, is the positive obligation owed by the defendant to safeguard and promote the welfare of children imposed by section 11 Children Act 2004, which applies to authorities in England and reads in its material parts:
"11. Arrangements to safeguard and promote welfare
(1) This section applies to each of the following –
(a) A local authority...;;
(b) A district council which is not such an authority;
(c) A strategic health authority;
(d) A special health authority …;
(e) A primary care trust;
(f) An NHS trust … ;
(g) An NHS foundation trust;
(h) The police authority and chief police officer of police for a police area...;
(i) The British Transport Police Authority … ;
(j) A local probation board...;
(k) Youth offending team...;
(l) The governor of a prison …;
(ja) …;
(m) …
(2) Each person and body to whom this section applies must make arrangements for ensuring that –
(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and
(b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.
(3) …
(4) Each person and body to whom this section applies must in discharging their duty under this section have regard to any guidance given to them for the purpose by the Secretary of State." [emphasis added]
- The claimants' case is that the duty imposed by section 11 required that the planning of the police response to "the London walk-out" should embrace the need to safeguard and promote the welfare of children. Adequate planning should have ensured that innocent young people under the age of 18 years would not be confined within a crowd containment should that containment have become an operational necessity; alternatively planning should have ensured that containment of children was for the minimum period necessary. It is contended that at the time the containment was authorised it must have been clear to the defendant's senior officers that there was a significant number of school children gathering in Trafalgar Square. The fact of containment is admitted. It is argued by Mr Westgate that the defendant must justify the containment of innocent third parties, especially school children. The defendant has failed to demonstrate that when making the decision to contain the crowd in Whitehall the defendant's officers, CS Johnson in particular, paid any specific regard to their duties towards children. That failure rendered the containment unlawful.
- In response Mr Hare, for the defendant, has advanced four propositions. First, he contends that section 11 had no direct application to the performance of the officers' duties on 24 November 2010. Section 11 is concerned with institutional matters and not with the creation of any new police function. Second, even if section 11 did have direct application it cannot have applied unless the defendant's officers had notice of circumstances in which it should be applied. At the planning stage that situation did not arise. Third, even if there was a failure to reach the appropriate standard of care towards children on 24 November, the lawfulness of the authorisation to contain the crowd is to be judged upon the common law and Article 5 requirements described by the Court of Appeal and the House of Lords in Austin v Commissioner of Police for the Metropolis [2008] QB 660 (CA) [2009] 1 AC 564 (HL). Fourth, and in any event, the defendant's officers did, as a matter of fact, act, as the circumstances allowed, to safeguard children and to protect their welfare.
- We turn first to Mr Hare's argument in opposition to the claimants' assertion that section 11 imposed an operational duty on the defendant's officers. It is contended that section 11 does no more than to require the defendant to make arrangements to bring to the attention of officers the need to safeguard and protect the welfare of children in the performance of their functions. A failure by an individual officer to release a child from the containment does not, submitted Mr Hare, render the decision to authorise the containment unlawful in public law. Mr Hare took us to the section 11(4) statutory guidance "Every Child Matters, Change for Children" one of a suite of five documents issued by the Secretary of State to accompany the 2004 Act. Section 11 came into force on 1 October 2005. Chapter 2.3 explains the meaning of section 11:
"2.3. The section 11 duty means that these key people and bodies must make arrangements to ensure two things. Firstly, that their functions are discharged having regard to the need to safeguard and promote the welfare of children, and secondly, that the services they contract out to others are provided having regard to that need."
Chapter 2.4 makes the clear that the intention is not to change existing functions:
"2.4. The duty does not give agencies any new functions, nor does it over-ride their existing functions. It, however, requires them to carry out their existing functions in a way that takes into account the need to safeguard and promote the welfare of children."
As to the meaning and scope of the words "safeguarding and promoting the welfare of children", chapter 2, paragraphs 7-9 explain:
"2.7. The term "safeguarding and promoting the welfare of children" is well understood within the context of the Children Act 1989 which provides the statutory framework for safeguarding and promoting the welfare of children in need. In this guidance, welfare is defined, as in the Children Act 1989, in terms of children's health and development, where health means 'physical or mental health' and development means 'physical, intellectual, emotional, social or behavioural development'.
2.8. Safeguarding and promoting the welfare of children is defined in both this guidance and Working Together to Safeguard Children as:
- protecting children from maltreatment;
- preventing impairment of children's health or development; and
- ensuring that children are growing up in circumstances consistent with the provision of safe and effective care;
... and undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully.
2.9. Protecting children from maltreatment is important in preventing the impairment of health or development. Both are required but are not on their own sufficient to ensure that children are growing up in circumstances consistent with the provision of safe and effective care. These aspects of safeguarding and promoting welfare are cumulative and all contribute to the five outcomes for improving the wellbeing of children set out in section 10(2) of the Children Act 2004, namely:
- physical and mental health and emotional well-being;
- protection from harm and neglect ;
- education, training and recreation;
- making a positive contribution to society; and
- social and economic well-being."
- Chapter 2, paragraphs 11 and 12 acknowledge that "making effective arrangements" will differ between agencies but that there are some "key features of effective arrangements which all agencies will need to take account of". Arrangements which are set out in Part II of the guidance "will help agencies to create and maintain an organisational culture and ethos that reflects the importance of safeguarding and promoting the welfare of children". At an organisational or strategic level the guidance at chapter 2.13 expects delivery of senior management commitment, a statement of the agency's policies, appropriate staff training, recruitment of suitable staff, effective working between agencies, and information sharing. Chapter 2, paragraphs 14 and 15, concern the application of the statutory duty when an agency is working with children. An effective system will ensure, among other things, that the views of children are taken seriously, that interventions take place early when problems are identified, that the racial and social characteristics of the child are taken into account, and that agencies respond according to need. These arrangements are subject to monitoring by the Local Safeguarding Children Board ("LSCB") established by the local children's services authority under section 13 of the Act (chapter 2.22). The LSCB will explain to a Board partner (which includes the local chief officer of police) any concerns that it is "not performing effectively in safeguarding and promoting the welfare of children". Police forces will, in addition, be subject to assessment by HM Inspectorates of Constabulary.
- Thus far, it will be observed, the statutory guidance to which the person on whom the duty is placed must have regard specifies that arrangements shall "ensure" that functions are performed having regard to the statutory need. On the other hand, the guidance is aimed primarily at the making of arrangements and not at the way in which functions should be performed. Part II, chapter 6 of the guidance specifically concerns the police. Chapter 6.1 identifies the primary responsibility of the police to protect life and property, to preserve the Queen's peace and to prevent and detect crime. With regard to children, the principal role of the police will be the investigation of child abuse allegations, but the police also have a "key role in preventing crime against or involving children and minimising the potential for children to become victims" (chapter 6.2). Chapter 6.3 anticipates the performance of such a role by identifying vulnerable children in domestic violence cases, using police powers to take children into protective custody, protecting children as witnesses or victims, and working with partner agencies to divert children from crime and to educate children about substance misuse and the prevention of crime. Chapter 6.5 advises:
"6.5. The police service also has a significant contribution to make to safeguarding and promoting the welfare of children through:
- implementation of policy and dissemination of good practice which recognises the welfare of children as the prime consideration, within the requirements of the criminal justice system;
- recognition that responsibility lies with all police officers and police staff and not just specialist child abuse investigation units within the force;
- prioritising the investigation of crime and the protection of children from harm; and
- the commitment towards working with other agencies to ensure that the interests of the child are best served by effective partnership working between agencies."
- Chapter 6.7 emphasises that the responsibility "to make arrangements" does not change the responsibilities ("functions") placed upon police authorities by existing statute: "Their focus should still rest on meeting the objectives of the criminal justice system". However, each police force should make arrangements calculated to ensure senior management commitment and accountability; awareness by police officers and staff at all levels "of their statutory requirements to promote and safeguard the welfare of children"; preparation of appropriate policing plans; appropriate training of all staff; recognition that children under 17 suspected of having committed an offence are "vulnerable"; effective inter-agency working and information exchange.
- Mr Hare sought to demonstrate performance of the defendant's duty "to make arrangements". He introduced us to a Metropolitan Police training presentation entitled "Children Act 2004 "Every Child Matters". The principal training message to police officers is a change in thinking from a reactive model for policing children to an intelligence-led "pro-active, every child matters" model ("ECM"). Officers are introduced to the Common Assessment Framework aimed at providing a standardised approach to the identification of a child's needs within the context of the officers' work in general but specifically when children are encountered during their work.
- We were provided with copies of the training presentation for senior officers entitled "Policing a Public Order Event", a training document developed from the "Manual of Guidance on Keeping the Peace". It is this model which demonstrates the deployment of strategic and tactical commanders to police an event. Emphasis is given to intelligence-led assessment of threat. Once the threat is assessed policing methods will be planned according to policy. Action taken should be reasonable, necessary and proportionate. Specific consideration is given to circumstances in which force or containment may be necessary. When containment is necessary Metropolitan Police policy is "to allow vulnerable or distressed persons or those inadvertently caught up in the police containment to exit". The containment officer's responsibilities include communication to his officers of the "identity of the containment officer and/or assistant/deputy, the legal basis for containment, location of release points and release protocols, and evidence capture". The discretion as to release rests upon those officers engaged with the containment. The discretionary release protocol applies to "non-violent persons, accredited media, vulnerable persons, those requiring medical attention, [and] those entering the criminal justice system". Released persons may be subject to identification and search where necessary. This is the policy under which Gold, Silver and Bronze Commanders were acting on 24 November 2010.
- CS Johnson comments at paragraph 20 of his witness statement:
"Since G20, all level 1 and 2 officers have specifically received training on containment and dealing with vulnerable persons. I am well aware of the duties of the MPS to safeguard and promote the welfare of children. This duty sits alongside those of the MPS towards any groups who may be regarded as vulnerable, such as the elderly and disabled but this extends much wider than this; for example, to those who have an illness or even become cold if wearing just a T-shirt in cold conditions. It is for an officer to use his individual discretion, depending on the circumstances presented at the time."
We accept CS Johnson's evidence that the term "vulnerable" people used in the defendant's policy document was wide enough to embrace children and was certainly so interpreted by CS Johnson and his Bronze commanders on 23 and 24 November.
- Mr Westgate submitted that the defendant's interpretation of the section 11 duty was too restricted. He submitted that it was CS Johnson's duty at his operational level to plan for the attendance of children and to devise a strategy which specifically recognised the need to safeguard them and protect their welfare. He drew attention to the similar terms of section 55 Borders, Citizenship and Immigration Act 2009 which provides in its relevant parts:
"55 Duty regarding the welfare of children
(1) The Secretary of State must make arrangements for ensuring that –
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are –
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
...
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of section (1)..."
- In R (TS) v. SSHD [2010] EWHC 2614 (Admin) Wyn Williams J construed section 55 and the statutory guidance referred to in section 55(3) as imposing upon the decision maker, in that case a UKBA caseworker, a duty to treat the best interests of the child concerned as a primary consideration when exercising an immigration/asylum function. It will be noted, however, that section 11 contains no such requirement as that found in section 55(3). Wyn Williams found (paragraph 33) that section 55(3) placed a personal responsibility upon the decision maker to have regard to the statutory guidance which included the requirement, at paragraph 6, that the decision maker must apply the guidance as to the welfare of children, and, "if they decide to depart from it, have clear reasons for doing so". The judge found that since UKBA had not addressed the claimant's case that a removal to Belgium would be "detrimental to his welfare" the decision made was unlawful.
- Mr Westgate referred us to section 49A Disability Discrimination Act 1995, inserted by section 3 Disability Discrimination Act 2005, which provided (prior to real of the Equality Act 2001 schedule 27 (1) para 1):
"(1) Every public authority shall in carrying out its functions have due regard to – (a) the need to eliminate discrimination that is unlawful under this Act; (b) the need to eliminate harassment of disabled persons that is related to their disabilities; (c) the need to promote equality of opportunity for disabled persons and other persons; (d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons; (e) the need to promote positive attitudes towards disabled persons; and (f) the need to encourage participation by disabled persons in public life."
The effect of section 49A was considered by the Court of Appeal in Pieretti v. Enfield London Borough Council [2010] EWCA Civ 1104; [2010] PTSR 565 in which the issue was whether the section applied to a local housing authority's discharge of its functions under Part VII of the Housing Act 1996 in relation to homelessness. It was argued on behalf of the defendant that (1) the section concerned only the general formulation of policy, (2) Part VII provided a complete and self contained scheme for the discharge of functions which itself addressed the needs of the disabled, and (3) the duty only became relevant at the stage at which the housing authority was considering the provision of housing. Each of these arguments was described by Wilson LJ, as he then was, as "clearly wrong". Section 49A applied to the exercise of all the authority's functions under Part VII including assessment and review. The reviewing officer was in breach of the duty owed because she failed "to take due steps to take account of a disability on the part of the applicant" (paragraph 35). Longmore and Mummery LJJ agreed.
- It is to be noted that section 49A of the 1995 Act placed an express duty upon an authority "in carrying out its functions [to] have regard to" the needs specified. The statutory words were aimed at the exercise of the function, not upon the need to disseminate approved practice.
- However, Mr Westgate also relied on a statement of principle made by Baroness Hale of Richmond and Lord Wilson JJSC in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 at paragraph 12 as follows:
"Article 3(1) of UNCRC
12. Article 3.1 of the UNCRC provides that:
"In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall
be a primary consideration."
Although the UNCRC has not been incorporated into our domestic law, there are many examples of domestic statutes requiring courts and public authorities to have regard to the welfare of the children with whom they are concerned. Sometimes, as in section 1(1) of the Children Act 1989, the court is required to treat the welfare of the child as its "paramount" consideration; sometimes, as in section 25(1) of the Matrimonial Causes Act 1973, it is the "first" consideration; sometimes, as in section 11 of the Children Act 2004 and section 55 of the Borders, Citizenship and Immigration Act 2009, a public authority is required to perform its functions having regard to the need to safeguard and promote the welfare of children. The last two, in particular, are clearly inspired by our international obligations under UNCRC. As was pointed out in ZH (Tanzania), para 25, "a primary consideration" is not the same as "the primary consideration", still less as "the paramount consideration". The Court went on to endorse the view taken in the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 292, that a decision-maker "would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it".
- Baroness Hale had earlier expressed similar views as to the purpose and scope of section 11 Children Act 2004 in ZH (Tanzania) v. SSHD [2011] UKSC 4; [2011] 1 WLR 148 in which she said at paragraph 23:
"23. For our purposes the most relevant national and international obligation of the United Kingdom is contained in article 3(1) of the UNCRC:
"In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall
be a primary consideration."
This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children. The immigration authorities were at first excused from this duty, because the United Kingdom had entered a general reservation to the UNCRC concerning immigration matters. But that reservation was lifted in 2008 and, as a result, section 55 of the Borders, Citizenship and Immigration Act 2009 now provides that, in relation among other things to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions "are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom"."
The Supreme Court concluded that any decision as to deportation and removal of a non-national "which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be 'in accordance with the law' for the purpose of art. 8.2" (paragraph 24). At paragraph 25 Baroness Hale acknowledged that the application of the primary consideration of the best interests of the child test would be coloured by the nature of the decision to be made. Where what is at stake is upbringing the best interests of the child concerned will be at the forefront of decisions concerning, for example, adoption and separation of the child from parents. Even when the decision at issue is not directly about the child (paragraph 26), if the child is affected, that child's best interests will be a primary consideration for the decision maker:
"This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first."
Turning, at paragraphs 27 and 28, to a distinction drawn in General Comment No. 6 by the United Nations Committee on the Rights of the Child (2005) on the treatment of unaccompanied and separated children and the UNHCR guidelines, paragraph 3.6, between "rights-based" and "non-rights-based" decisions affecting children, Baroness Hale expressed difficulty in appreciating the distinction when the decision maker was considering a judgement of compliance with Art. 8.2. At paragraph 86 of its comments the UN Committee recognised that: "Exceptionally, a return to a home country may be arranged, after careful balancing of the child's best interests and other considerations, if the latter are rights-based and override the best interests of the child". That might be the case where "the child constitutes a serious risk to the security of the State or to the society". In the opinion of the Committee, "Non-rights based arguments such as those relating to general migration control, cannot override best interests considerations". Baroness Hale said:
"28...Each of the legitimate aims listed there may involve individual as well as community interests. If the prevention of disorder or crime is seen as protecting the rights of other individuals, as it appears that the CRC would do, it is not easy to see why the protection of the economic well-being of the country is not also protecting the rights of other individuals. In reality, however, an argument that the continued presence of a particular individual in the country poses a specific risk to others may more easily outweigh the best interests of that or any other child than an argument that his or her continued presence poses a more general threat to the economic well-being of the country. It may amount to no more than that."
- Section 11, it seems to us, imposes upon the chief officer of police one of two legal obligations: either (1) to make arrangements with a view to ensuring that functions are discharged having regard to the need to safeguard and promote the interests of children, or (2) to make arrangements which ensure that functions are so discharged. The former construction, urged upon us by Mr Hare, would require only organisational training and awareness. Provided the chief officer of police had made his officers aware of the statutory need, the fact that one of his officers, whatever his rank, failed to have regard to the statutory need when making a decision affecting a child would not constitute a breach of the chief officer's obligation. The latter construction, for which Mr Westgate contends, would impose a requirement that the chief officer of police ensured that any of his officers performing his functions as a police officer did in fact have regard to the statutory need.
- We recognise that it is possible to distinguish the language of section 11 from that in similar provisions contained in section 55 of the 2009 Act and section 49A of the 1995 Act. Furthermore, it is apparent that the thrust of the statutory guidance is towards institutional understanding of the statutory need and its application by senior decision makers. We do not, however, consider either that the statutory guidance is concerned only with training and information, or that it does not apply to the manner in which police functions are exercised.
- It would, we think, be surprising if the obligation imposed upon a housing authority or an immigration caseworker should be different from that imposed upon the wide range of organisations and individuals specified in section 11(1) of the 2004 Act, particularly local authorities and the police. It was the strongly expressed obiter view of the Supreme Court in In re E and ZH that the purpose of section 11 was to incorporate within domestic law the spirit of the United Kingdom's international obligations towards children stated in Art. 3.1 of the UNCRC. The Court was explicit in its statements that the statutory duty was to ensure that public functions were performed having regard to the need to safeguard and promote the welfare of children. We conclude that Mr Westgate is right. The chief officer's statutory obligation is not confined to training and dissemination of information. It is to ensure that decisions affecting children have regard to the need to safeguard them and to promote their welfare. This does not mean that the duties and functions of the police have been re-defined by section 11. Chapter 2.4 of the statutory guidance, to which the chief must also have regard, makes that explicit. In our view the guidance accurately states the obligation of chief officers of police "to carry out their existing functions in a way that takes into account the need to safeguard and promote the welfare of children". The impact which the duty will have upon the performance of a function will depend to a significant degree upon the function being performed and the circumstances in which it is being performed. The responsibility will take on its sharpest focus when a police officer encounters a child who needs protection, for example in circumstances such as those anticipated by the statutory guidance concerning police investigations during which an unprotected child or a child at risk comes to their attention. A police officer will not be deterred from performing his public duty to detect or prevent crime just because a child is affected but when he does perform that duty he must, as the circumstances require, have regard to the statutory need.
Issue 2 – effect of breach of duty by a decision maker
- Mr Westgate further argues that a decision made in breach of the duty to have regard to the need to safeguard and promote the welfare of children renders that decision unlawful, at least when the rights of the child are engaged. He relies, in order to make his argument good, upon the decisions of the Supreme Court in R (Lumba) v. SSHD [2011] UKSC 12; [2011] 2 WLR 671 and R (Kambadzi) v. SSHD [2011] UKSC 23; [2011] 1 WLR 1299. In Lumba the Secretary of State's officials had applied to their decisions whether to detain foreign nationals pending deportation an unpublished, blanket and, therefore, unlawful policy. The Court held by a majority that the power of detention must be lawfully exercised. If it was exercised in breach of a public law duty it could found an action for false imprisonment at common law provided that the breach bore on and was relevant to the decision to detain. In Kambadzi the Secretary of State's officials maintained the detention of foreign nationals pending removal without carrying out periodic reviews as required by the Secretary of State's published policy. The Court held, also by a majority, that the Secretary of State was under a public law duty to give effect to his published policy which bore upon and was sufficiently closely related to the power to detain to create a further qualification to the statutory power. The failure to adhere to the policy without good reason rendered the detention unlawful. It did not make a difference, save to the quantum of damages, that had the policy been followed the length of detention would have been the same.
- Mr Westgate submits that the same principles apply to CS Johnson's decision to authorise containment. If that decision was taken without regard to his statutory duty to take account of the need to safeguard and promote the welfare of children the decision to contain was unlawful, not merely in respect of the children who were the beneficiaries of the duty but of the adults in respect of whom the containment was considered necessary. Mr Hare had no specific argument to address to us upon the correctness of this analysis, save to observe that it would be surprising if the containment as a whole was rendered unlawful by a breach of duty owed to a small proportion of those contained. As we have observed, it is the primary duty of a police officer to detect and prevent crime. We regard it as unlikely that in the general performance of police work circumstances will arise in which an officer's actions could be rendered unlawful because he failed to have regard to the statutory need. The reason we reach this conclusion is that it will be in rare circumstances that the failure to have regard to the statutory need will have any relevant impact upon or will qualify the ambit of the power he is exercising. He is not in the position of an immigration caseworker, making a decision affecting the future life prospects of a child, or a housing officer assessing the applicant for allocation of housing. We do, however, consider that the statutory duty had relevance to the issue of the lawfulness of police action on 24 November. Mr Westgate's argument cannot be considered in isolation from an examination of the lawfulness of the containment in general and we shall next turn to consider the common law as it relates to public order events such as the present.
Issue 3 – the power to contain at common law
- In R (Laporte) v. Chief Constable of Gloucestershire Constabulary [2006] UKHL 55; [2007] 2 AC 105, the House of Lords considered the lawfulness of a decision to turn back demonstrators travelling in a motor coach to Fairford RAF base to protest against its use by the United States Air Force during the Iraq war. At paragraph 29 of his speech Lord Bingham identified every constable's duty "to prevent, by arrest or by other actions short of arrest, any breach of the peace occurring in his presence, or any breach of the breach which (having occurred) is likely to be renewed, or any breach of the peace which is about to occur". It was accepted that no breach of the peace was "imminent" at the time the coach was stopped. For this reason, it was Lord Bingham's opinion that the police acted unlawfully in turning the coaches around. The decision maker must at least have concluded that a breach of the peace was likely to happen.
- It was argued on behalf of the protestors that in order to be lawful action taken to prevent a breach of the peace must be necessary against the particular individual concerned. At paragraph 84, Lord Rodger disagreed:
"84. In the light of these authorities I would reject Mr Emmerson QC's submission that there has to be a causal nexus between the persons affected by any measure taken by the police and the potential breach of the peace. In some circumstances a requirement of that kind would make it impossible for police officers to discharge their primary duty to preserve the peace. In a case like the present, therefore, provided that there was no other way of preventing an imminent breach of the peace, under the common law a police officer could stop a coach load of protesters from proceeding further, even although those on board included entirely peaceful protesters. The proviso is, however, vital."
- Lord Brown said (paragraph 114) that before preventative action could be justified, a breach of the peace must be imminent in the sense that it is about to happen. Secondly, the police must take no more intrusive action than that which appears necessary to prevent it. That might involve action affecting innocent third parties.
- In Austin v. Commissioner of the Police of the Metropolis [2008] EWCA Civ 989, Sir Anthony Clarke MR, as he then was, delivering the judgment of the Court, at paragraph 35, summarised the effect of their Lordships' speeches in Laporte on the issue of third parties' rights as follows:
"As we read the speeches of Lord Rodger and Lord Brown they give some support for the following propositions:
i) where a breach of the peace is taking place, or is reasonably thought to be imminent, before the police can take any steps which interfere with or curtail in any way the lawful exercise of rights by innocent third parties they must ensure that they have taken all other possible steps to ensure that the breach, or imminent breach, is obviated and that the rights of innocent third parties are protected;
ii) the taking of all other possible steps includes (where practicable), but is not limited to, ensuring that proper and advance preparations have been made to deal with such a breach, since failure to take such steps will render interference with the rights of innocent third parties unjustified or unjustifiable; but
iii) where (and only where) there is a reasonable belief that there are no other means whatsoever whereby a breach or imminent breach of the peace can be obviated, the lawful exercise by third parties of their rights may be curtailed by the police;
iv) this is a test of necessity which it is to be expected can only be justified in truly extreme and exceptional circumstances; and
v) the action taken must be both reasonably necessary and proportionate."
- The parties to the present claim accepted this test of lawfulness. Mr Westgate, of course, sought to superimpose in the present case an additional duty to have regard to the need to safeguard and promote the welfare of children. In the present case it is conceded that the occasion to impose a containment had arisen, since the officers were entitled to conclude that a breach of the peace was imminent (see paragraph 65 below). Mr Westgate submits that the containment was, nevertheless, unlawful by reason of the failure of the defendant's officers to plan for and mitigate the containment of innocent third parties who were also children. Reading Sir Anthony Clarke's propositions (i) and (ii) together leads to the conclusion that an improper failure to anticipate the need to take action to prevent a breach of the peace, and a failure to take other practicable steps to prevent it, will render containment unjustified with regard to those innocent third parties who may be affected by it. On the other hand, as we read proposition (iii), even when, in breach of requirement (ii), advance preparation has not taken place, it remains the positive duty of the police to intervene to prevent a breach of the peace but, if innocent third parties are affected, the action taken may, so far as they are concerned, be unjustified. It does not seem to us that if the only action reasonably available is containment, containment is, by reason of an earlier failure to anticipate events, to be treated as an excessive and therefore unlawful use of power in respect of all those contained. We note that Sir Anthony Clarke confined his use of the term "unjustified" to the action taken against innocent third parties. There may in some cases be difficult questions of fact to resolve as to whether an individual is an innocent third party or not.
- In Austin the facts were that a large group of demonstrators converged on Oxford Circus in London intent on violence and damage. Innocent people became caught up for several hours in the police containment of the demonstrators in the confined area of Oxford Circus. They brought claims for damages for false imprisonment and for breach of their right to liberty under Article 5. The defendant maintained that the containment was lawful since there was no other practicable method of preventing breaches of the peace. The police intended to release innocent third parties but were prevented from doing so by sporadic outbreaks of violence within and outside the police cordon which interfered with their efforts. At paragraphs 68 – 70 the Court summarised its conclusions as follows:
68. For these reasons, we conclude that in this very exceptional case, on the basis of the judge's finding that what the police did in containing the crowd was necessary in order to avoid an imminent breach of the peace, the actions of the police were lawful at common law in accordance with the principles discussed above. On that basis, we answer the question whether the containment was lawful in the affirmative, even though the police did not reasonably suspect that the individual appellants were about to commit a breach of the peace. In our judgment that was the case, both when the cordon was imposed at about 2.20 pm and throughout the time the cordon was maintained. On the judge's findings of fact, the conditions of necessity remained throughout because no-one had or has suggested an alternative release policy.
69. As to the release of individuals, the policy itself, which was to leave it to the discretion of individual police officers to decide whether a particular individual (in the words of Chief Superintendent Allison quoted above) obviously and clearly had nothing to do with the demonstration was rational, indeed sensible. On the judge's findings of fact the police were faced with an unprecedented situation and we accept the submission that it was not practical to give the individual officer a wider discretion: see [348-351]. In short, in the particular circumstances of 1 May 2001, it was necessary to adopt the policy in fact adopted.
70. There was some debate in the course of the argument as to the incidence of the burden of proof. It was in our view for the police to show that it was necessary to adopt the policy which they did but, once that was established (as in our opinion it was), it was for each appellant to show that the individual police officer acted unreasonably in a Wednesbury sense in refusing to release him or her. That approach seems to be to be consistent with the approach of this court in a similar (but admittedly not identical) context in Al Fayed v Commissioner of Police for the Metropolis [2004] EWCA Civ 1579, per Auld LJ, with whom Tuckey LJ and Jackson J agreed, at [42] and [83]."
We make it clear that it is not the claimants' present case that the decision of any individual officer was Wednesbury unreasonable. The focus of the claimants' case is the decision to contain and to contain for the length of time which prevailed.
- In our judgment, for the reasons given by the Master of the Rolls, interference with freedom of movement must be fully justified. The obligation upon the defendant was to avoid such action if he could. That duty required, where practicable, planning for alternatives to containment and, in any event, to minimise its impact on innocent third parties. The section 11 statutory duty required that planning, either in advance or at the time the decision to contain was made, should, where appropriate, have embraced the need to safeguard children and promote their welfare. If the decision maker is unable to show that he could not, by taking reasonable steps, have avoided the need to use containment, or have mitigated the consequences to innocent third parties, in particular children, then he will have acted unlawfully towards them in breach of his public duty.
Issue 4 – Article 5 ECHR
- The claimants in Austin appealed to the House of Lords [2009] UKHL 5; [2009] 1 AC 564 upon Article 5 grounds only, the respondent accepting that "if the appellants' detention was an unlawful deprivation of liberty contrary to Art. 5.1 of the Convention, the finding that this was a lawful exercise of breach of the peace powers at common law cannot stand" (per Lord Hope, paragraph 11). Lord Hope noted at paragraph 23 that there was no direct guidance as to whether Art. 5.1 was engaged when the police impose restrictions on movement for the sole purpose of protecting people from injury or avoiding serious damage to property. Lord Hope concluded at paragraphs 33 and 34:
"33. In Saadi v United Kingdom, application no 13229/03, 29 January 2008, BAILII: [2008] ECHR 80, the Grand Chamber examined the notion of arbitrary detention in the context of the first limb of article 5(1)(f) which authorises the detention of a person to prevent his effecting an unauthorised entry to the country: paras 67 to 74. Its observations were directed to the restrictions permitted by the various sub-paragraphs of article 5(1). In para 67 the Grand Chamber said that it is a fundamental principle that no detention that is arbitrary can be compatible with article 5(1) and that the notion of "arbitrariness" extends beyond lack of conformity with national law. In para 68 it said that the notion of arbitrariness in the context of this article varies to a certain extent depending on the type of detention involved. In para 74 it said that, to avoid being branded as arbitrary, such detention must be carried out in good faith and its length should not exceed that reasonably required for the purpose pursued. The ambit of article 5(1) was not the point at issue in that case. But it must follow from these observations that measures of crowd control which involve a restriction on liberty, if they are not to be held to be arbitrary, must be carried out in good faith and should not exceed the length that is reasonably required for the purpose for which the measure was undertaken.
34. I would hold therefore that there is room, even in the case of fundamental rights as to whose application no restriction or limitation is permitted by the Convention, for a pragmatic approach to be taken which takes full account of all the circumstances. No reference is made in article 5 to the interests of public safety or the protection of public order as one of the cases in which a person may be deprived of his liberty. This is in sharp contrast to article 10(2), which expressly qualifies the right to freedom of expression in these respects. But the importance that must be attached in the context of article 5 to measures taken in the interests of public safety is indicated by article 2 of the Convention, as the lives of persons affected by mob violence may be at risk if measures of crowd control cannot be adopted by the police. This is a situation where a search for a fair balance is necessary if these competing fundamental rights are to be reconciled with each other. The ambit that is given to article 5 as to measures of crowd control must, of course, take account of the rights of the individual as well as the interests of the community. So any steps that are taken must be resorted to in good faith and must be proportionate to the situation which has made the measures necessary. This is essential to preserve the fundamental principle that anything that is done which affects a person's right to liberty must not be arbitrary. If these requirements are met however it will be proper to conclude that measures of crowd control that are undertaken in the interests of the community will not infringe the article 5 rights of individual members of the crowd whose freedom of movement is restricted by them."
- The rest of their Lordships agreed with Lord Hope. Lord Neuberger added at paragraphs 58 – 60:
"58. The police are under a duty to keep the peace when a riot is threatened, and to take reasonable steps to prevent serious public disorder, especially if it involves violence to individuals and property. Any sensible person living in a modern democracy would reasonably expect to be confined, or at least accept that it was proper that she could be confined, within a limited space by the police, in some circumstances. Thus, if a deranged or drunk person was on the loose with a gun in a building, the police would be entitled, indeed expected, to ensure that, possibly for many hours, members of the public were confined to where they were, even if it was in a pretty small room with a number of other people. Equally, where there are groups of supporters of opposing teams at a football match, the police routinely, and obviously properly, ensure that, in order to avoid violence and mayhem, the two groups are kept apart; this often involves confining one or both of the groups within a relatively small space for a not insignificant period. Or if there is an accident on a motorway, it is common, and again proper, for the police to require drivers and passengers to remain in their stationary motor vehicles, often for more than an hour or two. In all such cases, the police would be confining individuals for their own protection and to prevent violence to people or property.
59. So, too, as I see it, where there is a demonstration, particularly one attended by a justified expectation of substantial disorder and violence, the police must be expected, indeed sometimes required, to take steps to ensure that such disorder and violence do not occur, or, at least, are confined to a minimum. Such steps must often involve restraining the movement of the demonstrators, and sometimes of those members of the public unintentionally caught up in the demonstration. In some instances, that must involve people being confined to a relatively small space for some time.
60. In such cases, it seems to me unrealistic to contend that article 5 can come into play at all, provided, and it is a very important proviso, that the actions of the police are proportionate and reasonable, and any confinement is restricted to a reasonable minimum, as to discomfort and as to time, as is necessary for the relevant purpose, namely the prevention of serious public disorder and violence."
Upon the issue of good faith Lord Neuberger continued at paragraph 63:
"63. As already indicated, it appears to me that the intention of the police is relevant, particularly in a non-paradigm case, such as this, and where the intention is manifest from the external circumstances. If it transpired, for instance, that the police had maintained the cordon, beyond the time necessary for crowd control, in order to punish, or "to teach a lesson" to, the demonstrators within the cordon, then it seems to me that very different considerations would arise. In such circumstances, I would have thought that there would have been a powerful argument for saying that the maintenance of the cordon did amount to a detention within the meaning of article 5. However, as is apparent from the clear and careful findings made by the Judge, which have quite rightly not been challenged on appeal, there could be no question of such a contention being raised in the present case."
- This court was required to consider the application of these principles in Moos and McClure v. The Commissioner of Police of the Metropolis [2011] EWHC 957 (Admin) where containment tactics had been utilised to deal with a demonstration called the "Climate Camp" in Bishopsgate during the G20 summit held in London. The President of the Queen's Bench Division, Sir Anthony May, and Sweeney J summarised the principles as they applied to the facts in that case as follows, at paragraph 56:
"56. The principal issue in these proceedings is whether the containment at the Climate Camp between 7.07pm on 1st April 2009 and 11.15pm or so was necessary, proportionate and justified in law. To be justified in law as being the lawful exercise of the common law power to take reasonable steps to prevent a breach of the peace and as not constituting an unlawful deprivation of liberty under Article 5 of the Convention, the police had reasonably to apprehend an imminent breach of the peace at the Climate Camp or, if not at the Climate Camp, so associated with the Climate Camp that containing the Climate Camp itself was reasonably necessary. A breach of the peace is imminent if it is likely to happen. Immediacy or imminence is an essential condition which should not be diluted, although it may be applied with a degree of flexibility. If a breach of the peace is imminent, the police may lawfully take preventive action, provided that there is no other way of preventing the imminent breach of the peace. They must take no more intrusive action than appears necessary to prevent the breach of the peace, and it must be reasonable and proportionate. The police may only take such preventive action as a last resort catering for situations about to descend into violence. What is imminent is to be judged in the context under consideration. There have to be proper advanced preparations. It is only when the police reasonably believe that there is no other means whatsoever to prevent an imminent breach of the peace that they can as a matter of necessity curtail the lawful exercise of their rights by third parties. The test of necessity is met only in truly extreme and exceptional circumstances. The action taken has to be both reasonably necessary and proportionate and taken in good faith. The case of Austin, where the containment was held to be lawful, was a very exceptional case."
The Court concluded that there was no reasonably apprehended breach of the peace, imminent or otherwise, within the Climate Camp itself sufficient to justify containment. It might have become necessary to implement an absolute cordon between the Climate Camp and incoming supporters at some stage, but it was not shown that it had been necessary to seal off the Climate Camp.
Discussion and conclusion upon the claim
Planning
- We accept Mr Westgate's argument that the defendant, through his decision maker, CS Johnson, owed a statutory duty to have regard to the need to safeguard children and to promote their welfare. That duty was owed in performance of a police function of planning for a major public order event in the capital on 24 November 2010. We reject the assertion that he had no regard to that need. On the contrary, he received and shared intelligence as to possible plans by the organisers to involve school children (at least in school walk-outs) and requested school liaison officers to report intelligence as to the scale and nature of that involvement. At the planning stage there was no occasion to make specific arrangements for the management of children since there was no intelligence that children would be attending in significant numbers. While intelligence had been received that there may exist an intention by some elements to attack the Liberal Democrat headquarters in Cowley Street, it was not known when and from what source that attack might come except through knowledge of an intention by one group to conduct a static protest in Cowley Street. It was, therefore, a reasonable conclusion that it might be necessary to take urgent action to protect people and property in Cowley Street. There was, however, no reason to anticipate that a danger to persons and property would result specifically from a surge along an unauthorised route from Trafalgar Square to Whitehall. The evidence is that senior officers anticipated the possibility that, if trouble arose, it might be necessary to deploy containment but there had been no advance information which indicated where and in what circumstances containment might be necessary. It was, we conclude, a reasonable and sufficient performance of CS Johnson's duty to request his bronze commanders to be ready for the contingent need for containment. It was reasonable for CS Johnson not to make specific plans for the management of children save to remind his bronze commanders, as he did, of the need to protect the vulnerable.
- We do not have to decide whether the draftsman of the defendant's policy "Policing a Public Order Event" intended the term "vulnerable" to apply to children since we are satisfied that this is how the policy was interpreted and applied by senior officers on the present occasion. Since the section 11 duty imposes upon decision makers the requirement to have regard to the need to safeguard children and protect their welfare, the policy should, we think, be explicit in explaining its application to children.
The decision to authorise containment and plans for release
- We accept Mr Westgate's submission that the evidence demonstrates that at about midday a number of school children gathered in Trafalgar Square and mingled with those older than themselves. It is not possible to reach a conclusion as to numbers but our impression is that the officers on the ground were dealing with a small minority. It is, we think, probable that school children kept, on the whole, to small groups of their own age, just as the claimants did. But, we do not accept either that their presence should have been anticipated or that, if it had been, there were alternative means available either to prevent a breach of the peace occurring or to ensure the welfare of children if the need arose to intervene in Whitehall. The intention of the crowd did not become apparent until shortly before the decision was made to seal off the Parliament Square end of Whitehall. Furthermore, if the crowd had been prevented from entering Whitehall there were at least two alternative routes to Parliament Square via the Mall and Embankment. Mr Westgate offered no suggestions as to what plans could have avoided the need for containment including the containment of children. He accepted in written argument that "the claimants proceed on the basis that the defendant was entitled to act on the basis that he apprehended an imminent breach of the peace". In oral argument Mr Westgate opened with the concession that "the fact containment was necessary is not in issue". Mr Westgate suggested, however, that "children should have been identified as a class which was likely to be non-violent" and should have been the subject of a plan for release. Mr Westgate was unable to suggest means by which release could have been achieved more quickly in the circumstances, save by lifting the requirement for searches and arrests, to which we shall refer below.
- As Mr Hare pointed out there was a plan for release of the vulnerable, including school children. It was a standing instruction issued according to the Manual for Keeping the Peace and it was a specific instruction given to bronze commanders by silver commander on the morning of 24 November. A bronze commander was designated with responsibility for the release of the vulnerable and he, rightly, treated that responsibility as including a specific obligation towards school children. Children were, as a matter of fact, being released through the police cordon throughout the afternoon and evening.
- We turn, secondly, to the issue whether the duration of the containment was unnecessary, unreasonable or disproportionate. If it was, it was unlawful. The containment having been admitted the burden is upon the defendant to demonstrate its lawfulness at common law; further, that containment did not amount to an arbitrary interference with liberty for the purposes of Art. 5, an unlawful interference with the Art. 8 right for respect for private life, the right of freedom of expression under Art 10 and the right of freedom of assembly under Art. 11.
Duration of containment
- Mr Westgate relies upon an instruction issued by CS Johnson at or about 2.45 pm on 24 November refusing to commence a general release at that time. Bronze Reserve Chappell recorded the instruction as follows:
"14.30: Bx1 calls. Says in crowd are mix of [illeg.] + fringe, suggests filtering fringe demonstrators. Decide no. Nearly all PSU...are engaged in containment + therefore no capacity if second demo forms + consequent risk to people and premises. 14.45: Containment quite settled, [illeg.] attempt to force a break. Smoke bombs occasionally let off. Some people masked up to prevent identification."
We have referred at paragraph 22 above to events taking place inside and outside the cordon. It seems to us that the decision not to allow a general exodus from Whitehall was entirely justified. The continued anticipation of an imminent breach of the peace is supported by the evidence.
- The claimants contend that there was a delay occasioned in the selective release of children caused by the instruction to search all those permitted to leave, as necessary, for weapons under the authority given pursuant to section 60 Criminal Justice and Public Order Act 1994 and to make arrests where appropriate; in consequence, release was a slow process. Mr Westgate submits that the duration of the containment rendered it unlawful. There was, we conclude, evidence from more than one source that significant numbers of the protesters were armed. Those who were armed and leaving the containment posed an additional and obvious risk for imminent breaches of the peace at locations outside the cordon. There was evidence of continuing violence at both the Trafalgar Square and Parliament Square ends of Whitehall. Some of those being released were re-forming in order to re-join elsewhere. Later, in Parliament Square, officers had difficulty persuading even school children to disperse. We do not regard the instruction to search those leaving for arms as unnecessary, unreasonable or disproportionate; nor do we conclude that the instruction to arrest those suspected of committing offences was unnecessary or disproportionate having regard to the presence and welfare of children. We do not conclude that the containment was prolonged for any unlawful purpose. We repeat that, subject to the immediate requirements of the situation at release points, officers had the discretion immediately to release children. Repeated efforts were made to identify them, particularly those in school uniform. It is, we consider, necessary to avoid the wisdom of hindsight. In this regard we have not found extracts of a meeting of the Metropolitan Police Authority on 25 November 2010, in which the events of 24 November were explored with the defendant, to be of assistance. What has influenced our conclusions are the contents of contemporaneous records of police action and explanations for decision making, recorded at the time of relevant events or shortly afterwards. While there was a considerable delay beyond the time at which a general dispersal was planned (4 pm), and that delay is regrettable, particularly when the young and vulnerable were affected, we conclude that it was justified by events occurring outside the cordon which required careful handling of those within the containment. The action taken, having regard to the need to safeguard children and to promote their welfare, was necessary, proportionate and lawful.
- The claimants Adam and Rosie Castle were, we are told, prevented from leaving the containment with their father who was in possession of a press pass. This is a matter of some surprise to us. We would have expected that, if the facts are as they have been represented to us, their joint approach to the police cordon would have been an occasion for the use of discretion. However, like the claimants, we do not know what was happening in the vicinity of Mr Castle's release point which may have influenced the officers at that location. Mr Westgate acknowledges that there is no claim currently made on the basis of a Wednesbury unreasonable local decision which would, in any event, properly be the subject of an ordinary action for damages in which the facts could be explored.
- It follows from the foregoing that the claim based upon unlawful detention at common law and interference with the claimants' right to liberty under Articles 5 must fail. Mr Westgate has addressed interesting arguments to us as to the application of Articles 8, 10 and 11. In the circumstances, it is unnecessary for us to address those arguments since, as we find, any interference which did take place was for a legitimate reason, in accordance with the law, and proportionate to the legitimate aim of preventing an imminent breach of the peace.
- We conclude that section 11 Children Act 2004 requires chief officers of police to carry out their functions in a way that takes into account the need to safeguard and promote the welfare of children (see paragraphs 53 and 60 above). However, for the reasons we have set out at paragraphs 64 - 72 above, we do not consider that the defendant was in breach of this duty or of any of his public law duties. Accordingly the claims will be dismissed.
