Police use of force to control demonstrators only permissible where there are no other means whatsoever to prevent breach of the peace

Moos & Anor, R (on the application of) v Police of the Metropolis [2011] EWHC 957 (Admin) (14 April 2011)


The England and Wales High Court recently concluded that action taken by the police to contain and then later disperse G20 protestors constituted an unlawful use of force, in the circumstances.

The decision crystallises principles regarding in which circumstances the right to assemble and protest will legitimately be curtailed on the grounds of preventing a breach of the peace.


The case arises out of claims made by two demonstrators who took part in an assembly against the 2009 G20 summit, held in London.

There were two protests running simultaneously at the time of the summit. One of the demonstrations was held outside the Royal Exchange and was described as being ‘seriously violent’, involving property damage and the burning of a branch of the Royal Bank of Scotland. The second was located a distance away, in Bishopsgate near a building called the Carbon Exchange. This second assembly was termed the ‘Climate Camp’ and was less disorderly and relatively peaceful, with many protesters bringing camping and cooking equipment, intending on staying at the site overnight.

Police were anxious that protestors at the Royal Exchange would join those at the Climate Camp and intensify the demonstrations there. Accordingly, the police undertook a number of actions, including the containment of the Climate Camp protests between 7 pm and 11:15 pm and subsequent attempts to disperse the group by use of force in some instances, including ‘shield strikes’ and the use of batons. One of the claimants, Mr Moos, who was taking part in the demonstration, was not permitted to leave once containment commenced, although he was suffering from dehydration.

The claimants sought judicial review of the police actions, alleging that they represented an unlawful use of force.


The key issue before the Court was whether the police containment of Climate Camp was “necessary, proportionate and justified in law”. The police actions would be lawful if they were reasonable steps to prevent a breach of the peace. Otherwise, they would constitute an unlawful deprivation of liberty in contravention of art 5 of the European Convention on Human Rights.

The question of the lawfulness of the police action hinged on whether they reasonably apprehended an imminent breach of the peace at the Climate Camp or associated with the Climate Camp, such that its containment was reasonably necessary.

The Court noted that the requirement of imminence or immediacy was an essential condition of the test, however, its application was flexible and must be judged contextually. Likewise, the Court set an appropriately high bar, indicating that the precondition of necessity would only be met in “truly extreme and exceptional circumstances”. Accordingly, curtailing the lawful exercise of a person’s rights should only take place where the police reasonably believed that “there [was] no other means whatsoever to prevent an imminent breach of the peace”.

Further, the Court opined that even when police action could lawfully be taken to prevent a breach of the peace, it must only be done in good faith and as a “last resort catering for situations about to descend into violence”. Though sympathetic to the difficult situation faced by the police, who they found were acting in good faith to best deal with what had been a “gruelling day”, the Court ultimately found in favour of the claimants.

The Court made the following findings:

  • whilst there was justification to contain the protest outside the Royal Exchange due to the violence occurring there, there was no similar justification for such action at the Climate Camp by virtue of the conduct at that site alone;
  • there was no reasonably apprehended breach of the peace, either imminently or otherwise to justify the containment of the Climate Camp at 7 pm;
  • whilst there was a risk that there would be breaches of the peace resulting from the arrival of demonstrators from the Royal Exchange, this risk was not imminent sufficient to justify containment;
  • but for the containment, there would have been no need for release arrangements and the use of force; and
  • where force was used, such in the ‘pushing operation’ undertaken by the police, it was neither necessary nor proportionate, and the release policies in some instances were unduly inflexible.

Whilst the Court was at pains to not be prescriptive in relation to the way in which police should handle such matters, they did take the view that it was necessary to provide training to officers and clear instructions regarding the circumstances in which the use of force was justified.

Also noteworthy, the Court took the view that the invoking s 14 of the Public Order Act 1986 (which permits senior police officers to enforce conditions on a public assembly) to clear the Climate Camp at the close of the day was fully justified, in light of the fact that it had run for 12 hours and would otherwise cause severe public interference by blocking one of the main access points into and out of the city.

Relevance to the Victorian Charter

Pursuant to s 32(2) of the Charter, Victorian Courts would be entitled to consider the decision of Moos & Anor in interpreting the rights afforded under the Charter.

The language and substance of s 21 of the Charter, to an extent, mirror that of art 5 of the ECHR, which enshrines the right to liberty and security and was under consideration in Moos & Anor. Under section 21 of the Charter, a person must not be subjected to arbitrary arrest or detention except on grounds and in accordance with procedures established by law. The decision may also be relevant in relation to section 16 of the Charter, which provides that every person has the right of peaceful assembly.

The decision is significant as it provides clarity regarding the circumstances in which a person’s liberty, security of person and right to assemble may be restricted on the grounds of preventing a breach of the peace.

The decision is at http://www.bailii.org/ew/cases/EWHC/Admin/2011/957.html.

Alysia Abeyratne is a Solicitor with the Human Rights Law Group at Mallesons Stephen Jaques