The focus of the case was on the power the police have to preventa Breach of the Peace.
Breach of the Peace is not acriminal offence, but occurs wherever violence is used or threatened to a person or theirproperty in their presence (R Vs Howell 1982). Case law (AlbertVs Lavin 1982) reaffirms that everyone can act to preventbreaches of the peace, but only the police have an enforceableduty to do so.
Gloucestershire Constabularyargued that in exercising their duty to prevent a Breach of thePeace, a Constable "may and must do whatever they reason -ably judge to be reasonable". Now this would have givencarte blanche to all over -eager coppers across England andWales, but fortunately all the Lords ruled against thisapproach. Instead they set a standard of "Imminence", whichthey defined as being something objectively likely to happen and,while not setting a time limit, ruled out the suggestion that itencompassed things about to happen in the sense of "Jane wasabout to go to university". They also strongly backed Lord Jus -tice Sedley's judgement in Red mond-Bate v DPP 1998 --thataction to prevent a Breach of the Peace should be directed at whowas acting unlawfully or at least unreasonably provoking unlaw -fulness. The Lords accepted the argument that the use of Breachof the Peace had to be very tightly controlled, if onlybecause everyone could use it -- including against the police!
Moss but no more than
In ruling that the cops were entitled to prevent protestersfrom going to Fairford, both the Divisional Court (judges Mayand Harrison) and Court of Appeal (judges W oolf, Clarkeand Rix) relied on a case from the miners' strike called Moss vsMclachlan. Here, striking min ers were stopped several milesaway from a coalfield they intended to picket and werearrested for obstruction of the police when they tried to pushpast police to get there.
Lord Mance in his judgementdoubted that the courts would reach the same conclusion today ,while Lords Bingham Rodgier and Carswell gave guarded sup -port for the Moss decision. The overall result seems to be bestexpressed in Lord Brown' s judgement that, although theMoss situation would still be justified, albeit on a certain viewof the facts, it represents the "furthermost limits of anyacceptable view of imminence".
But what good came of it?
One important case that is likely to be affected positively by theFairford ruling is the Mayday 2001 Oxford Circus case (AustinSaxby vs the Met). This was lost at the Divisional Court withjudge Tugenhat ruling that the police were entitled to keep sev -eral thousand people contained in Oxford Circus for up to eighthours--without the likelihood of ever being brought before alawful authority.
This judgement is beingappealed and comes before the Court of Appeal in March. TheMetropolitan Police ar gued that no ruling prejudicial to this casebe made. While the Law Lords didn't directly comment on it,there are hopeful signs that we may get a better judgement fol -lowing the Fairford ruling.
Principally, Lord Binghamstated that parliament had "con ferred carefully defined powersand imposed carefully defined duties" on the police to regulatedemonstrations, and any exten sion should not come from thecourts but needs "the wide con sultation and inquiry and demo -cratic consideration which should characterise the legisla -tive process". Good to know the judiciary are as sarky as ever. BOP and POP The key implications seem to be that the cops have lost the power to prevent people going to lawful demonstrations and Breach of the Peace has been deemed unsuitable for regulating protests. Crucially, the Law Lords con firmed that actions short ofarrest to prevent a Breach of the Peace can only allowed if arrestitself would be lawful in the cir cumstances. Now just becausesomething is against the law it doesn't mean the cops won' t doit, but if we win the Austin Saxby case--and containment toprevent a Breach of the Peace is determined to be unlawful — there would need to be a whole sale reform of public order policing (POP!) tactics.
On the other hand there maybe negative feedback with parliament bringing in even more anti-protest legislation. As always, the driving force behind getting concessions from the state is activism from the people.
"T'was a famous victory"
OK, so the Lords ain't outlawed war — but it's still a result. T o getit has required a lot of hard work from John Halford and the teamat Bindmans solicitors, as well as impressive forensic oratory frombarristers Ben Emmerson and Michael Fordham.However, the lesson for activists is that to get the bestresults you have to be actively involved instructing yourlawyers. Jane and her supporters have done a magnificent job ofjoint publicity and legal work while uniting diverse viewsamongst the broad spectrum of protesters on the coaches, andit's to them we principally owe this victory ("positive resolu -tion" if you're a hippie).
Andy Meinke is on the staff of Housmans Bookshop and an expert on the law governing demonstrations. If you too wish to bamboozle the rozzers and bore the pants off your mates with a pedantic knowledge of the law we recommend:
British and Irish Legal Information Institute: http://www.bailii.org/ Has judgements in most significant cases.
The UK Statute Law Database: http://www.statutelaw.gov.uk/ Has the full text of laws passed by parliament currently in force
Association of Chief Police Officers: http://www.acpo.police.uk/ Has "keeping the peace" - the cops' guide for public order strategy.
