R v Chief Constable of the Devon and Cornwall Constabulary, ex parte Central Electricity Generating Board

COURT OF APPEAL, CIVIL DIVISION

[1982] QB 458, [1981] 3 All ER 826, [1981] 3 WLR 967, 146 JP 91

HEARING-DATES: 22, 23, 24, 25 SEPTEMBER, 20 OCTOBER 1981

20 OCTOBER 1981

CATCHWORDS:
Police -- Powers -- Removal of persons from private land -- Removal of protesters -- Actual or apprehended breach of peace -- Protesters obstructing survey of site for nuclear power plant -- Protest peaceful and non-violent -- Whether police having power to remove or assist in removal of protesters.

HEADNOTE:
The Central Electricity Generating Board was a statutory body empowered under s 35(1) of the Electricity Act 1957 and s 280 of the Town and Country Planning Act 1971 to enter and survey land for the building of power stations. The board, in the exercise of their powers, wished to enter a site on private land in Cornwall in order to carry out a survey of the site to assess its suitability for a nuclear power station. However, when employees of the board attempted to carry out the survey they were obstructed by a group of protesters who occupied the site. The protest, although disruptive of the board's attempts to carry out the survey, was peaceful and non-violent and took the form of obstructing the board's employees and plant. The board sought the assistance of the Chief Constable of the Devon and Cornwall Constabulary to prevent further obstructions, but he refused to intervene on the grounds that he had no statutory power of arrest in the circumstances nor any common law power of arrest since there had been no breach of the peace, nor was any anticipated, nor was there any unlawful assembly to be dispersed. The board applied for an order of mandamus directed to the chief constable requiring him to remove, or assist the board's employees or agents in removing, persons who obstructed the board's work. The Divisional Court refused the application and the board appealed.

Held -- (1) Notwithstanding that the protest and obstruction took place on private land, the board, having a statutory right to be on the land, were entitled in the circumstances to use the common law remedy of self-help to remove obstructing protesters, and the police had power to enter on the land at the invitation of the board and assist the board in removing the protesters either in order to prevent actual or apprehended breaches of the peace occurring when the removal took place or (per Lord Denning MR) because the conduct of the protesters in unlawfully obstructing the board's survey was itself a breach of the peace (see p 832 f to j, p 834 d to g, p 837 h, p 838 f to j and p 839 b to j, post).

(2) However, since it was for the police at the site and not the court to decide when and how to exercise that power, mandamus would not be issued against the chief constable (see p 833 f to j, p 837 d and p 840 d e, post).

Per Lord Denning MR. (1) There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it (see p 832 g h, post).

(2) An unlawful assembly is an assembly of three or more persons with intent to commit a crime by open force (see p 833 c, post).

Per Lawton LJ. The presence of violence or tumult is an essential element of the offence of unlawful assembly and the offence is not committed merely when three or more persons gather to commit a crime (see p 834 h to p 835 a, post).

NOTES:
For mandamus against public officers to enforce statutory duties, see 11 Halsbury's Laws (4th Edn) paras 1521, 1523-1527, and for cases on the subject, see 16 Digest (Reissue) 365-366, 3866-3874.

For the Electricity Act 1957, s 35, see 11 Halsbury's Statutes (3rd Edn) 1048.

For the Town and Country Planning Act 1971, s 280, see 41 ibid 1893.

CASES-REF-TO:

Cole v Thomas (1704) Holt KB 108, 6 Mod Rep 149, 90 ER 958, NP, 46 Digest (Repl) 418, 615.
Holmes v Bagge (1853) 1 E & B 782, 22 LJQB 301, 21 LTOS 256, 17 JP 631, 17 Jur 1095, 118 ER 629, 15 Digest (Reissue) 1192, 10,231.
Hubbard v Pitt [1975] 3 All ER 1, [1976] QB 161, [1975] 3 WLR 201, [1975] ICR 308, CA, Digest (Cont Vol D) 538, 152c.
Kamara v Director of Public Prosecutions [1973] 2 All ER 1242, [1974] AC 104, [1973] 3 WLR 198, 137 JP 714, 57 Cr App R 880, HL, 14(1) Digest
(Reissue) 121, 811.
Sedleigh-Denfield v O'Callagan (trustees for St Joseph's Society for Foreign Missions) [1940] 3 All ER 349, [1940] AC 880, 109 LJKB 893, 164 LT
72, HL, 36(1) Digest (Reissue) 486, 633.
R v Metropolitan Police Comr, ex parte Blackburn [1968] 1 All ER 763, [1968] 2 QB 118, [1968] 2 WLR 893, CA, 16 Digest (Reissue) 344, 3615.

CASES-CITED:

Albert v Lavin [1981] 1 All ER 628, [1981] 2 WLR 1070, DC.
Beatty v Gillbanks (1882) 9 QBD 308, [1881-5] All ER Rep 559.
Cohen v Huskisson (1837) 2 M & W 477, 150 ER 845.
Duncan v Jones [1936] 1 KB 218, [1935] All ER Rep 710.
Field v Metropolitan Police Receiver [1907] 2 KB 853, [1904-7] All ER Rep 435.
Gelberg v Miller [1961] 1 All ER 291, [1961] 1 WLR 153.
Glasbrook Brothers Ltd v Glamorgan County Council [1925] AC 270, [1924] All ER Rep 579, HL.
Humphries v Connor (1864) 17 ICLR 1.
Ingle v Bell (1836) 1 M & W 516, 150 ER 539.
McGowan v Chief Constable of Kingston upon Hull [1967] Crim LR 34, DC.
O'Kelly v Harvey (1883) 15 Cox CC 435.
R v Caird (1970) 54 Cr App Rep 499, CA.
R v Dewhurst (1820) 1 State Tr NS 529.
R v Hodges [1974] Crim LR 424, DC.
R Howell [1981] 3 All ER 383, [1981] 3 WLR 501.
R v Hunt (1820) 3 B & Ald 566, 106 ER 768.
R v Metropolitan Police Comr, ex parte Blackburn (No 3) [1973] 1 All ER 324, [1973] QB 241, CA.
R (Feeham) v Queen's County Justices (1882) 10 LR Ir 294.
Rice v Connolly [1966] 2 All ER 649, [1966] 2 QB 414.
Thomas v Sawkins [1935] 2 KB 249, [1935] All ER Rep 655.
Webster v Watts (1847) 11 QB 311, 116 ER 492.
Wershof v Comr of Police for the Metropolis [1978] 3 All ER 540.
Wise v Dunning [1902] 1 KB 167, [1900-3] All ER Rep 727.

INTRODUCTION:
Appeal. The Central Electricity Generating Board appealed against the decision of the Divisional Court (Hodgson and McCullough JJ) dated 28th July 1981 dismissing the board's application for an order of mandamus directed to the respondent, the Chief Constable of Devon and Cornwall, requiring him to instruct police officers under his control to remove or to assist the board's servants or agents in removing persons obstructing the board's works at Luxulyan, Cornwall. The facts are set out in the judgment of Lord Denning MR.

COUNSEL:
A T Hoolahan QC and Andrew Caldecott for the board. Alan Rawley QC and Phillip Mott for the chief constable.

JUDGMENT-READ:
Cur adv vult. 20th October. The following judgments were read.

PANEL: LORD DENNING MR, LAWTON AND TEMPLEMAN LJJ

JUDGMENTBY-1: LORD DENNING MR.

JUDGMENT-1:
LORD DENNING MR. The coast of Cornwall is beautiful. Much of the inland is ugly. It is despoiled by china clay workings. Not far from them there is open farmland with small villages dotted around. Pleasant enough but not outstanding. The Central Electricity Generating Board view this as a possible site for a nuclear power station. They wish to survey it so as to compare it with other possible sites. The farmer objected to the survey. So did the villagers. They took up a stand against it. But on being told by the courts that it was unlawful for them to obstruct the survey, they desisted. They moved off the site. They obeyed the law. But then groups of outsiders came in from far and wide. They had no local connection with the place. They came anonymously. They would not disclose their identity. They would not give their names and addresses. They flouted the law. They wilfully obstructed the survey. Can these newcomers be moved off the site so that they obstruct no more? Can the board move them off? Or, if the board cannot do it, can the police be called in to help? The chief constable feels that he cannot use his force for the purpose. It would put his men in a bad light with the local inhabitants. What then is to be done?

The need for electricity

The whole of our country is now dependent on electricity. It is the driving force of industry. It is the source of light for homes. It is generated in huge power stations. At one time it was fuelled by coal. Afterwards by oil. In the future it will be by nuclear power. We are concerned here with its provision for the South-West of England.

To ensure this vital supply, Parliament has set up the Central Electricity Generating Board, which I will call 'the board'. At present they have five power stations to supply Cornwall and Devon. But these will not last for ever. The board, looking to the future, feel that they should in time be replaced by one nuclear power station to supply the whole of the South-West of England. They have five sites under consideration. Any one of them might be suitable. But it is necessary for the board to survey each of the sites so as to see if it will take the weight. They have had no difficulty in surveying four of the possible sites. But they have met with intense opposition in surveying the fifth site. It is near Luxulyan in Cornwall, on a farm owned by Mr and Mrs Searle. The survey would only take a few more days. It involves drilling a few holes and making a few seismic tests with explosives so as to see the nature of the subsoil. After the survey is finished the site would be left afterwards exactly as it was before. It would be entirely without prejudice to the future. If the board did eventually think that this site would be the most suitable of the five, there would have to be a public inquiry at which all objectors could be heard and a decision by a minister responsible to Parliament. In short, there would be no nuclear power station built there unless Parliament was satisfied that it was in the interests of the consumers of electricity in the whole of the South-West of England, including as they do many industries of much importance.

This sort of problem is recurrent in modern society. The country as a whole needs to be provided with reservoirs for water, with military areas for defence, with airports for travel, with prisons for criminals, and so forth. The local inhabitants object most strongly. But still it does happen from time to time that their objections have to be overruled. It is much to be regretted, but, if the national interest so demands, they must give way, remembering that they are to be fully compensated, so far as money can do it, for any property that is compulsorily acquired or any injurious effect to persons or property.

The board met opposition

The board here acted throughout in complete accord with their statutory powers and obligations. They gave due notice to the farmers, Mr and Mrs Searle, and sought their consent to the survey. It was not forthcoming. The board informed them of the statutory provision which authorised entry to their land. They gave them notice that they were coming on 24th February 1981. News of it got through to the television people and the newspapers. On 24th February 1981 three of the board's staff and three surveyors approached the site. They had written authority to enter. They found the way blocked by about 60 people, including Mr and Mrs Searle and a group known as 'Luxulyan against Nuclear Development'. The television people were there. Also newspaper reporters. Five policemen were present. Two of them controlled the crowd and the traffic. The representatives of the board said to Mr Searle: "It is obvious that you do not intend to let us on the land.' Mr Searle said: 'That is correct.' So the board's representatives withdrew to the boos of the crowd.

The board got injunctions

Now this opposition by Mr and Mrs Searle and their supporters was clearly unlawful. There is a section in the Town and Country Planning Act 1971 which makes it a criminal offence. Section 280(9) gives the board power not only to enter land to survey it but also to search and bore so as to ascertain the nature of the subsoil and the presence of minerals thereunder. Section 281(2) says that:

'Any person who wilfully obstructs a person acting in the exercise of his powers under section 280 of this Act shall be guilty of an offence and liable on summary conviction to a fine not exceeding 20.'  This has since been increased to 50.

The statute does not, however, contain any power of arrest. But it is clear law that the board can enforce it either by issuing summonses before the magistrates or by applying for an injunction in the High Court.

On 4th March 1981 the board issued writs against Mr and Mrs Searle and neighbouring farmers, Mr and Mrs Lawton, asking for an injunction to restrain them from preventing or interfering with the entry of the board onto their land. On 16th March 1981 Boreham J granted the injunction.

The farmers obeyed the injunctions. They no longer blocked the way. On 26th March 1981 the board's contractors entered on the land of Mr and Mrs Searle. They did quite a lot of survey work. They were not obstructed until the middle of May 1981. Then several local objectors appeared and sought to obstruct the operations. The contractors brought in drilling rigs and men to operate them. Then local objectors came in motor cars and blocked the entrances. On 19th May 1981 one rig got into the field. Mr John St John Bamford from Bodmin tried to stop it. He held onto it. He had to be manhandled clear of the moving rig or he would otherwise have been severely injured, if not killed. Mrs Varcoe and Mr and Mrs Miller threw themselves under an approaching rig and had to be lifted clear of it. On 20th May 1981 drilling was started but objectors then started to climb on the rig and to interfere with the gear levers. This was so dangerous that drilling had to be stopped. One woman chained herself to the rig, and when she left a substitute took her place. The police took the names and addresses of the obstructors and the numbers of the cars. They were mainly local people from Luxulyan and places fairly near.

On 22nd May 1981 the board issued a writ against 32 named persons and on the same day Talbot J granted an injunction against them. They too obeyed the injunction and moved off the site. They marched round the roads preceded, it is said, by the Lostwithiel Silver Band.

You might have thought that that would be the end of the matter: and that the rule of law had prevailed. But no. Groups of interlopers then came from far and wide and tried to stop the work. One group, calling itself the Cornish Republican Movement made an overnight attack on another drilling rig at Nancekuke. Another group calling itself the Cornwall Anti-Nuclear Alliance started a systematic campaign of obstruction.
They set up headquarters in a caravan. They had seven posts on the farm manned by 17 persons. They took up position in relays. As one party went off, another came on. And so forth. They called one another by their Christian names, Tom, Dick or Harry, or Susan, Mary or Jane, so that no one could discover their true names and addresses. Their organisers issued a leaflet giving instructions to volunteers who came to help them. I will quote part of it so that you may see what they were told to do:

'WELCOME...

'1. It is peaceful and friendly -- it must be kept that way -- if at any time you feel unable to respond in such a way, please walk away from the situation...

'5. The Drillers are basically friendly but have a job to do; he "nice" but clear about why you are there.

'6... c)... If a rig gets inside the field lie down in front of it, but ALWAYS WARN THE DRIVER FIRST (he cannot see in front of his wheels from the cab)... Always explain to them that your actions are NON-VIOLENT... (f)... If an attempt [sic] is made to move the drill INTO the field, two people must chain themselves to the rig. (You will be told where the keys are kept). No attempt can legally be made to man-handle you. DO NOT PANIC if the Drillers arrive -- they often come to service the Machinery...

'7. If you see a seismic team crossing onto the land, follow them... If possible, put your foot (umbrella...) under the hand-drill to stop a hole being drilled, or otherwise if you are too late for this -- Sit on the hole...

'10. Do not bring illegal substances onto the site or break the Law in any way -- it would only be an excuse for the CEGB to call the Police in and have us all removed

The board approached the police

These newcomers made things so difficult for the board that they approached the police for help. The difficulty is best described in a letter they wrote to the chief constable:

'Unfortunately, those injunctions have not prevented further interference. Although the local demonstrators have obeyed them and withdrawn, other antinuclear objectors from much further afield have now moved on to the Searles' land and are being equally obstructive. Their action has stopped all work on one of two rigs. To try to use it in present circumstances would expose the demonstrators in its immediate vicinity to serious risk of injury. The Board also still have to carry out the survey's final phase, a seismic test, involving a number of controlled explosions.
This again would be too dangerous to carry out while demonstrators remain on the land. I understand that the present demonstrators have ignored all requests from Mr. Searle to leave. Although the Board will continue to seek injunctions against any person obstructing the work whom it is able to identify, such action will not end the interference, because the new demonstrators are unknown in the area and their identification is therefore becoming increasingly difficult. Moreover, further replacements appear to be readily available. On the other hand, the Board should only need approximately seven more days of uninterrupted work to complete all aspects of the survey. It is against this background that we seek your assistance. Wilful obstruction of the Board's exercise of its powers under S. 35(1) of the Electricity Act 1957 is a criminal offence under S. 280(2) of the Town and Country Planning Act 1971. All other works in relation to the survey of this site and of the other four sites have been completed... We therefore write to ask you for your assistance in enabling the Board to carry out its statutory duties by preventing further unlawful obstruction.'

The chief constable's reply

The chief constable felt, however, that neither he nor his men could do anything to remove the demonstrators. They had no power of arrest. In a letter of 11th June 1981 he said:

'I am sure you will appreciate that contentious issues such as the work at Luxulyan place the local officers in an unenviable and sensitive position. We have endeavoured to give the Board every possible assistance and we will continue to do so. The legal position is complicated and the public opposition genuinely and vociferously voiced. Against this background, without a more definitive legal mandate, the police inevitably must maintain their low-key presence to preserve the peace.'

The board's application

Now the board feel that they cannot ask their own staff, or the contractors' men, to turn these people off the site. They want the police to do it. The chief constable says No. He thinks he has no lawful authority to do it. He also thinks that it would harm the relationship of his men to the public.

The board feel that the chief constable is mistaken. On 8th July 1981 they applied for a mandamus to compel him. It was for --

'An order of mandamus directed to the Chief Constable of the Devon & Cornwall Constabulary, requiring him to instruct police officers under his control to remove or assist the Applicant's servants or agents to remove person obstructing the Applicant's works at Luxulyan in the County of Cornwall.'

The law

Much discussion took place before us about the law. It is common ground that, although the statute gives no power to arrest obstructors, nevertheless the police have power to arrest them if there is a breach of the peace or the reasonable apprehension of it. Also that the police have power to disperse an unlawful assembly. But the question is whether the obstructors were guilty of a breach of the peace, or whether there was any apprehension of it; or whether there was an unlawful assembly.
Breach of the peace

In our present case the police have taken the view that there has been no breach of the peace, nor that there is any apprehension of it, nor that there is an unlawful assembly. This is shown by these extracts from the papers:

The chief constable in his letter of 11th June 1981:

'Police have remained on private land during the demonstrations at Luxulyan expressly to ensure the preservation of the peace. The
demonstrations so far have been of such a nature that possible breaches of the peace and instances of criminal damage have not occurred. Had they done so there would have been a clear opportunity for police to act and they would have done so...'

The most detailed report is one made by the Chief Inspector Bradley, who made a report on 2nd July 1981, in which he says:

'The officer with responsibility for Community Policing in the area is Constable 994 Penlerick who has an excellent local knowledge and is a valuable asset in such a situation as he provides me information which gives a clear indication as to attitudes of demonstrators and other local persons... You appreciate there is no power of arrest and the Police have the same powers as the CEGB to take the demonstrators' names and report them... I would suggest that if we involved ourselves in this context our whole community relationship, which at the present time is second to none, and has taken a considerable length of time to establish, would be in jeopardy... to date I fail to see that a Breach of the Peace has been occasioned or is likely to be occasioned...'
And in the affidavit of the chief constable of 22nd July 1981:

'I am not satisfied that the demonstrators have any intention whatsoever of using violence or committing breaches of the peace or threatening to do so. Their whole behaviour so far has been perfectly peaceful and my Officers have been assured on a number of occasions by various demonstrators that they have no intention or desire to breach the criminal law by the use of violence or by threatened or actual breaches of the peace...'

And in the affidavit of Chief Inspector Bradley:

'In the circumstances there is no reason whatsoever for the Police to suspect or have any grounds to believe that a breach of the peace is anticipated; the demonstrators are acting in a very "passive" manner and in no way are they committing a breach of the peace.'

The conduct of the obstructors

Now I am afraid that I cannot share the view taken by the police. English law upholds to the full the right of people to demonstrate and to make their views known so long as all is done peaceably and in good order (see Hubbard v Pitt [1975] 3 All ER 1, [1976] QB 161). But the conduct of these demonstrators is not peaceful or in good order. By wilfully obstructing the operations of the board, they are deliberately breaking the law. Every time they lie down in front of a rig, or put their foot or umbrella down to stop a hole being drilled, or sit on the hole, they are guilty of an offence for which they could be fined up to 50 for every occasion. They must know it is unlawful. They must know of the injunctions granted against the farmers and the local residents. Yet they persist in going on with their unlawful conduct, knowing full well that it is unlawful. Is the law powerless to stop them? Can these people avoid the process of the law by not giving their names and addresses, so that neither a summons nor a writ can reach them? Can they avoid it by bringing in one group after another? I think not.These obstructors should not be in any better position than those against whom injunctions have been obtained. The arm of the law is long enough to reach them despite their attempts to avoid it. 

In the first place, I must say that the leaflet issued by the organisers is completely erroneous. The board and their contractors are entitled to manhandle the obstructors so as to move them out of the way. Every person who is prevented from carrying out his lawful pursuits is entitled to use self-help so as to prevent any unlawful obstruction: see Holmes v Bagge (1853) 1 E & B 782 at 786-787, 118 ER 629 at 631 per Lord Campbell CJ. He must, of course, nor use more force than is reasonably necessary; but there is no doubt whatever that he can use force to do it.

I go further. I think that the conduct of these people, their criminal obstruction, is itself a breach of the peace. There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker, by lying down or chaining himself to a rig or the like, he is guilty of a breach of the peace. Even if this were not enough, I think that their unlawful conduct gives rise to a reasonable apprehension of a breach of the peace. It is at once likely that the lawful worker will resort to self-help by removing the obstructor by force from the vicinity of the work so that he obstructors no longer. He will lift the recumbent obstructor from the ground. This removal would itself be an assault and battery, unless it was justified as being done by way of self-help. Long years ago Holt CJ declared that 'the least touching of another in anger is a battery' (see Cole v Turner (1704) Holt KB 108, 90 ER 958). Salmond on Torts (17th Edn, 1977, p 120) adds that even anger is not essential. An 'unwanted kiss may be a battery'. So also the lifting up of a recumbent obstructor would be a battery unless justified as being done in the exercise of self-help. But in deciding whether there is a breach of the peace or the apprehension of it, the law does not go into the rights or wrongs of the matter, or whether it is justified by self-help or not. Suffice it that the peace is broken or is likely to be broken by one or another of those present. With the result that any citizen can, and certainly any police officer can, intervene to stop breaches.

If I were wrong on this point, if there was here no breach of the peace or apprehension of it, it would give a licence to every obstructor and every passive resister in the land. He would be able to cock a snook at the law as these groups have done. Public works of the greatest national importance could be held up indefinitely. This cannot be. The rule of law must prevail.

Unlawful assembly

Beyond doubt these groups are guilty of a criminal conspiracy. By combining together wilfully to obstruct the survey, they are liable to
prosecution, provided that the Director of Public Prosecutions consents (see ss 1 and 4(1) of the Criminal Law Act 1977).

But were they guilty of an unlawful assembly? The old authorities, going back to Coke, Blackstone, Stephen and Archbold, all say that an unlawful assembly is an assembly of three or more persons with intent to commit a crime by open force. I think this case comes within that statement and I think it is still the law. But I need not go into it further, in view of my holding that their conduct is also a breach of the peace.

The authority of the police

I would add one further word. It is to my mind within the authority of the police to intervene ot prevent any criminal offence being committed in their presence, even though it is only a summary offence, where the offender fails or refuses or avoids giving his name and address. Even though the statute does not give a power of arrest, the law says that a police officer can do whatever is necessary by way of restraint to prevent a criminal offence being committed or continued. So here the police would in my opinion be acting within the law if they cleared these obstructors off the site. If any resisted, or returned afterwards, the police would be entitled to take them before a justice of the peace who could require them to enter into a recognisance to be of good behaviour.

Mandamus

Notwithstanding all that I have said, I would not give any orders to the chief constable or his men. It is of the first importance that the police should decide on their own responsibility what action should be taken in any particular situation. As I said in R v Metropolitan Police Comr, ex p Blackburn [1968] 1 All ER 763 at 769, [1968] 2 QB 118 at 136:

'... it is for the Commissioner of Police, or the chief constable, as the case may be, to decide in any particular case where enquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter. He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide; but there are some policy decisions with which, I think, the courts in a case can, if necessary, interfere.'

The decision of the chief constable not to intervene in this case was a policy decision with which I think the courts should not interfere. All that I have done in this judgment is to give the 'definitive legal mandate' which he sought. It should enable him to reconsider their position. I hope he will decide to use his men to clear the obstructors off the site or at any rate help the board to do so.

The board's position

It is plain that the board can use self-help so as to get rid of this wilful obstruction. To me the obvious solution would be to erect a fence around their place of work, a barbedwire entanglement if need be, so as to prevent the obstructors getting any where near the operations.This is just common sense, so that they should not be a danger to themselves or to others. If they should try and break through the fence, or rush it, the battle would be on. There would be the clearest possible breach of the peace. The police would move in, arrest them, and take them before the magistrates. So I would say to the board, put up a fence and get on with your work. Stand no more of this obstruction.

For the reasons I have given, however, I would make no order against the police. The appeal should be dismissed.

JUDGMENTBY-2: LAWTON LJ.

JUDGMENT-2:
LAWTON LJ. This appeal has two aspects, the general and the particular. The general can be described as follows: can those who disapprove of the exercise by a statutory body of statutory powers frustrate their exercise on private property by adopting unlawful means, not involving violence, such as lying down in front of moving vehicles, chaining themselves to equipment and sitting down where work has to be done. Such means are sometimes referred to as passive resistance. The answer is an emphatic No. If it were otherwise, there would be no rule of law. Parliament decides who shall have statutory powers and under what conditions and for what purpose they shall be used. Those who do not like what Parliament has done can protest, but they must do so in a lawful manner. What cannot be tolerated, and certainly not by the police, are protests which are not made in a lawful manner.

A statutory body can use the minimum of force reasonably necessary to remove those obstructing the exercise of their statutory powers from
the area where work has to be carried out. This is the common law remedy of abatement by self-help; but it would involve the statutory body taking the law into its own hands and is, as Lord Wright said in Sedleigh-Denfield v O'Callagan [1940] 3 All ER 349 at 369, [1940] AC 880 at 911, much to be discouraged. There are many reasons why self-help should be discouraged. Disputes are likely to arise whether the minimum amount of force reasonably necessary was used. In my judgment, based on my understanding of human nature and a long experience of the administration of criminal justice, the most important reason for not using self-help, if any other remedy can be used effectively, is that as soon as one person starts to, or makes to, lay hands on another there is likely to be a breach of the peace. Those obstructing may assert that they will allow themselves to be removed without resisting; but, when the manhandling starts, particularly if a man has to lay hands on a woman, struggling and uproar are likely to begin. I should have expected most police constables to appreciate that this is so; and as they have a duty to deal with breaches of the peace which actually occur or which they have reasonable cause for suspecting are about to occur, those who see what is happening should act either by trying to persuade those obstructing to stop doing so or arresting them if they persist in their unlawful conduct. In many cases those who persist to the point of having to be arrested will commit some other offence in doing so, such as obstructing or assaulting police officers in the execution of their duty: see s 51 of the Police Act 1954. If no other offence is committed, the
police constable making the arrest should take the person arrested before the local magistrates to show cause why he should not be bound over, with or without sureties, to keep the peace and be of good behaviour: see s 115 of the Magistrates' Courts Act 1980.

If the obstructors are three or more in number and by conduct show an intention to use violence to achieve their aims or otherwise behave in a tumultuous manner, any police constables present have the duty to disperse them because those present and forming part of the gathering will be committing the offence of unlawful assembly. I do not accept counsel's submission on behalf of the Central Electricity Generating Board (to whom hereafter I shall refer as 'the board') that an unlawful assembly comes about whenever three or more persons gather to commit anycrime. Unlawful assembly is one of a number of common law crimes designed to uphold public order and to protect the public generally against lawlessness and disorder: see the speech of Lord Hailsham LC in Kamara v Director of Public Prosecutions [1973] 2 All ER 1242 at 1248. Comments in 3 Co Inst 176 and 4 BI Com (14th Edn, 1803) 146 which seem to show that an unlawful assembly can occur without the factor of either violence or tumult do not accurately state the modern law.

So much for the broad aspect of this appeal. I turn now to the particular. By letter dated 1st June 1981 the chairman of the board told the
chief constable how they had been obstru cted in carrying out their statutory duties, what steps they had taken by way of civil remedies. The
penultimate paragraph of the letter ended with these words:

'We therefore write to ask you for your assistance in enabling the Board to carry out its statutory duties by preventing further unlawful
obstruction. We would be grateful if you would let us know when the police assistance will be available, so that the Board can arrange for a
suitable programme for the completion of the survey.'
The chief constable answered by letter dated 11th June 1981. He described the board's difficulties as being of a quasi-private nature. They
were not. He ended his letter as follows:

'The demonstrations so far have been of such a nature that possible breaches of the peace and instances of criminal damage have not
occurred. Had they done so there would have been a clear opportunity for police to act and they would have done so. I am sure you will appreciate that contentious issues such as the work at Luxulyan place the local officers in an unenviable and sensitive position. We have endeavoured to give the Board every possible assistance and we will continue to do so. The legal position is complicated and the public opposition genuinely and vociferously voiced. Against this background, without a more definitive legal mandate, the police inevitably must maintain their low-key presence to preserve the peace.'  The drafting of this letter can be criticised; but I can see no useful purpose in subjecting it to critical analysis. The chief constable's stance was reasonably clear: he was saying, as he was entitled to do, that on the information then available to him he did not anticipate any breaches of the peace.

The board were dissatisfied with the chief constable's answer to their request for help and applied to the Divisional Court for an order of mandamus directed to the chief constable requiring him to instruct police officers under his control to remove or assist the board's servants or agents to remove persons obstructing their works at Luxulyan in the county of Cornwall. That application, in my judgment, showed a misconception of the powers of chief constables. They command their forces but they cannot give an officer under command an order to do acts which can only lawfully be done if the officer himself with reasonable cause suspects that a breach of the peace has occurred or is imminently likely to occur or an arrestable offence has been committed. In July 1981 the Chief Constable of Devon and Cornwall could have, and probably did, order some of his constables to watch what was going on in the field where the board wanted to exercise their statutory powers; but what he could not do was to give unqualified orders to his officers to remove those who were obstructing the board's work. Any orders he gave would have to have qualifying words to the effect that those obstructing should be removed if, but only if, there was a breach of the peace or an imminent likelihood of one or an unlawful assembly formed.

The issue between the board and the chief constable got befogged by conflicting evidence which each received at the beginning of July 1981. By letter dated 2nd July 1981 the board's agents on the site, a firm of consulting engineers, made the following report:

'As you know we have at all times been very careful to pull back from the point of actual physical contact with the protesters. There have been a number of occasions when relatively harmless jostling has reached the point where to have continued was obviously going to lead to more serious violence, and potentially the most dangerous situation was the time when Mr. Bamforth had to be manhandled clear of the moving rig when he would otherwise have been severely injured if not killed. A similar situation arose with Mrs. Varco and Mr. & Mrs. Millar when they threw themselves under the rig approaching B.H.26. These incidents and the many discussions we have had with the protesters make it abundantly clear that certainly the more militant of them are keen to provoke a violent confrontation, which we most certainly wish to avoid.'  Counsel for the chief constable told us that the police had not witnessed anything which could be described as a breach of the peace. On the same day, a chief inspector stationed at St Austell made a report to his superintendent at Launceston, giving a history of what had happened and his assessment of the situation. This report was forwarded to the chief constable. In a paragraph of it describing what had happened at the end of April 1981 he stated: 'It was obvious that any move by the CEGB would be met by resistance from the demonstrators present and also reinforcements obtained locally.' He made it clear that in his opinion the board could not protect itself by injunctions since it was obvious to him
that 'the intention would be to replace persons served with injunctions with new demonstrators'. Towards the end of his report came this passage:

'I would suggest that if we involved ourselves in this context our whole community relationship, which at the present time is second to none, and has taken a considerable length of time to establish, would be in jeopardy. Likewise, to date, I fail to see that a Breach of the Peace has been occasioned or is likely to be occasioned, and if it had, our powers are such that we could only place the defendants before the Court, who in turn only have limited powers of dealing with them for a period of time, during which time they would be replaced by others as has happened with the service of injunctions. We must not take sides in this dispute. I do not feel we should act as agents for the C.E.G.B and our relationship with the local community should remain untarnished. To date, no arrests have been made and no persons have been reported for any offence in connection with these demonstrations. The demonstrators have behaved in a most law abiding manner and seem to be fullfilling their intentions of keeping their demonstrations within the criminal law.'   I was surprised to read, and I would like to think that the chief constable was too, that a senior police officer could have been of the opinion that the situation which he described was not likely to cause a breach of the peace. The demonstrators were not behaving in a most law-abiding manner, nor were they keeping their demonstrations within the criminal law. They were all committing offences under ss 280 and 281(2) of the Town and Country Planning Act 1971. What matters, however, is not the chief inspector's erros in law but his assessment of what was likely to happen.The unlawful obstruction was going on in his area; his officers were reporting to him what they had seen; he may himself have watched what was happening. Although he may have put too much stress on keeping on good terms with those in the area who did not want a nuclear power station built there, there is nothing is his report or in the other evidence to suggest that his assessment of the situation was not his honest opinion. The chief constable was entitled to accept it and he did. This led him to state in the affidavit which he swore in opposition to the board's application for an order of mandamus that he was not satisfied that the demonstrators had any intention of using violence or committing breaches of the peace.

The issue was further befogged by the chief constable averring, on legal advice, first that he was not satisfied 'that force should be used in the present circumstances either by the Board or by anyone else' and, second, that the board should deal with the problem by taking furtherproceedings. If the chief constable was purporting to tell the board when they could use self-help, he had no right to do so any more than the board had any right, if they ever thought they had, to call on the chief constable to provide muscle power to remove those who were obstructing the exercise of their statutory powers. Police constables are no one's lackeys; but they do have a duty to preserve the peace no matter how unpopular that may make them with some sections of the community.

Both sides in this dispute now know the other's point of view. The chief constable knows that the board's consulting engineers anticipate that some of those obstructing their work are keen to provoke a violent confrontation. The board know that any police officers who may be watching what is going on cannot act unless they see a breach of the peace or have reasonable cause for suspecting that there is a real and imminent risk of one occurring or that those present, being three or more in number, by their conduct show an intention to use violence or behave in a tumultuous way.If those obstructing do allow themselves to be removed without struggling or causing uproar (which to me seems unlikely, but I may be wrong) the police will have no reason for taking action, nor should they.

On the evidence it seems likely that the board will have to use self-help if they are to perform their satutory duties at Luxulyan. Civil
proceedings have been ineffective. Prosecutions for offences under ss 280 and 281(2) of the Town and Country Planning Act 1971 would serve no useful purpose. When they do decide to use self-help and fix a day for doing so, they should inform the local police who no doubt be present in sufficient numbers to ensure as best they can that breaches of the peace do not occur and, if they do, that those responsible are removed from the site.

In my judgment this is not a case for making an order of mandamus against the chief constable. It is a case for co-operation between the board and the chief constable and the use of plenty of common sense by all concerned, including those for who are on the site obstructing the board's functions.

I would dismiss the appeal.

JUDGMENTBY-3: TEMPLEMAN LJ.

JUDGMENT-3:
TEMPLEMAN LJ. The CEGB seek the help of the police in removing obstructors who are preventing the board from surveying a possible site for the construction of a nuclear power station.

A protest against the construction of a nuclear power station has lasted for six months and the obstructors intend to continue the protest, if possible, until the board abandon their attempts to survey the site.

By s 35(1) of the Electricity Act 1957 and s 280 of the Town and Country Planning Act 1971 as applied to the 1957 Act, the board have power and are seeking to exercise power to survey part of a farm in Cornwall owned by Mr and Mrs Searle and to make bore holes and to carry out controlled explosions to test the subsoil with the object of discovering whether the land is a suitable site for the construction of a nuclear power station.

Section 281(2) of the Town and Country Planning Act 1971 provides: 'Any person who willfully obstructs a person acting in the exercise of his powers under section 280 of this Act shall be guilty of an offence.'

The police have no powers of arrest for an offence against this statutory provision of the criminal law. Any person who willfully obstructs the board in the exercise of their powers also commits a tort for which the board may exercise their civil remedies. The police have no powers to arrest anyone for breach of this civil law.

Thus the board have the legal right to enter on the farm and to conduct operations in order to determine whether the land is suitable for the site of a nuclear power station and any person who interferes with the exercise by the board of their rights commits a breach of the criminal and the civil law. The obstructors believe that the construction of a nuclear power station on this site would be a national and local disaster. Other people may believe that the construction of a nuclear power station is essential and that the advantages of building such a power station on this site will outweigh the disadvantages. Other people may have no opinion at all about the matter or vaguely dislike or favour the construction of a nuclear power station on this site without any strong feeling one way or another. The judges and the police are not asked to decide whether a nuclear power station on this site would represent progress or catastrophe. The tasks of the judges and the police are to uphold the law and maintain order.

Those who oppose the construction of a nuclear power station on the site are entitled to demonstrate their disapproval and to organise opposition. The obstructors have carried their opposition further. They have occupied the site with the object of forcibly preventing the board from exercising their statutory rights. The interference of the obstructors is forcible because they intrude themselves so that the board cannot exercise their statutory rights without endangering limbs and lives. The obstructors lie on the ground in front of vehicles, handcuff themselves to machinery and place themselves in proximity to explosive charges. The board in these circumstances are prevented from exercising their rights until the board have removed or procured the removal of the obstructors from the site. The obstructors assert that they are passive resisters, that is to say they claim that they will not offer physical violence to prevent the board from removing them; but they will not remove themselves and can only be removed bodily by others. If they are removed bodily, they have every intention of returning unless they are subjected to physical or legal restraints and each obstructor who is removed knows that another obstructor will if possible replace him as an obstacle in the path of the exercise by the board of their rights.

The board possess a legal remedy against each obstructor. The board can obtain and in some cases have obtained an injunction restraining a defendant from interfering with the exercise by the board of their statutory rights. Disobedience to such an order involves contempt of court for which the defendant can be fined or committed to prison. But there is no evidence that any breach of an injunction has been committed or threatened. In any event, the remedy does not avail the board to establish conditions under which they can exercise their rights. A defendant must be identified and served with legal proceedings and evidence must be produced that the defendant interfered or threatens to interfere with the rights of the board. In the same way as any obstructor removed bodily from the site will be replaced by another, so every obstructor restrained by injunction will be replaced by another obstructor against whom proceedings have still to be launched. The organisation of a state of affairs under which every obstructor who is removed or restrained is replaced by another obstructor constitutes a conspiracy to prevent the board from exercising their statutory rights. But such a conspiracy only gives further grounds for the grant of an injunction against an identified conspirator.

The board possess the remedy of self-help. The board are entitled to exercise that remedy by forcibly clearing the site of obstructors and by preventing obstructors from returning to the site or from entering the site. The board may only use the minimum of force reasonably necessary for the purposes of asserting their rights. The board, as a responsible public authority, are in practice unable to help themselves without the help of the police. The board may be faced with abuse or propaganda and with violence despite the protestations of the campaign leaders. The board may be falsely accused of excessive force in removing or restraining the obstructors.

In these circumstances the board are entitled to ask for the assistance of the police. The police are entitled to assist the board by supervising and controlling the clearance of the site by the board and by approving the steps proposed and taken by the board to prevent obstructors from returning to the site or entering the site by means of manned fences or other reasonable means.

The police are also entitled to assist the board by the police themselves arresting or removing or restraining the obstructors if there is an imminent danger of a breach of the peace or if a breach of the peace is committed in consequence of the residence, threatened or actual, passive or violent, of an obstructor to his own removal and restraint.

It was suggested that the police have no powers in relation to passive resisters on private land. This is not the case. In addition to other powers possessed by the police, they are entitled to enter on private land at the invitation of the owner or at the invitation of any person who himself has a right to be on the land. The board are entitled to enter on the site and to complete the survey and they are entitled to invite the police to enter on the site to assist the board to establish conditions under which the board will be able to complete the survey without any outbreaks of violence taking place.

It was also suggested that the powers of the police to deal with passive resisters are limited, that the obstructors have discovered a loophole in the law and that, if action is to be taken against passive resisters, Parliament must pass further legislation. In my judgment, the common law is sufficiently robust and sufficiently sensible to be able to put an end to a six month campaign of lawlessness characterised by physical interference with the rights of others, whether in a good cause or a bad cause and whether in the form of passive resistance or any other form of resistance. There is no need for further statutory extensions of police powers which at present balance the rights of individuals and protesters against the policy of the state and the requirements of law and order and provide a workable compromise between these considerations.

The police have ample power to supervise the clearance of the site by the board and to assist the board by the police themselves arresting or removing and restraining the obstructors in order to prevent breaches of the peace which are reasonably apprehended or which are committed by any person as a result of the insistence by the obstructors in remaining on the site or entering on the site or returning to the site. The police, like the board, may only use the minimum of force reasonably necessary to enable the board to establish and maintain conditions under which they will be able to complete the survey. The police may be faced with abuse or propaganda or with violence despite the protestations of the protest campaign leaders and may need to prevent or terminate violence provoked by the presence or by the activities of the obstructors. The police, like the board, may be falsely accused of excessive force in removing or restraining the obstructors. The duties of the police frequently involve similar problems which must be faced.

Without the assistance of the police, the board have been inhibited from employing their remedy of self-help so that they might assert their rights and perform their duties of completing the survey for fear of resistance and misrepresentation on the part of the obstructors. The police have been reluctant to assist because they were afraid of unpopularity, uncertain of their powers and reluctant to exercise their powers for fear of resistance and misrepresentation on the part of the obstructors.

The board and the police may instruct the obstructors to leave the site and warn them that if they do not leave the site and remain off the site the obstructors will be liable to be forcibly removed or arrested. If after such a warning the board enter the site with the object of completing the survey, the possibility of a confrontation with the obstructors will at once raise a danger of breaches of the peace when the board's workmen seek to carry out their work and find the obstructors lying in their path. An obstructor who will not leave the site unless he is forcibly removed presents a threat and danger of a breach of the peace even if he disclaims any intention of causing a breach of the peace. The board have only acquiesced in six months' interruption of the survey because they rightly fear violence if they persist. The police are only present at the site because they rightly fear violence if the board resume their work. Even Mahatma Gandhi discovered to his sorrow that in the conduct of ordinary mortals passive resistance only remains passive so long as the resistance is successful.

The police on the spot must decide when to intervene. I consider that they will be fully justified in intervening if the board enter the site with the intention of completing the survey and the obstructors decline to leave. But in any event the police will be entitled to intervene if an obstructor resists being carried away from the site or runs to another part of the site or tries to enter the site or tries to return to the site, thus obliging the board's representatives to seize him so that he may be permanently excluded. Such conduct by an obstructor, whether he calls himself a passive resister or not, will create an imminent and serious danger of a breach of the peace for which the obstructor will be responsible and liable to arrest or removal by the police.

The present campaign has been successful for six months and the campaigners seek a permanent success flouting the civil law and the criminal law. The success of the campaign to date has been made possible by the physical interference of the obstructors with the lawful activities of the board, by the reluctance of the board to perform their functions in the face of opposition and the reluctance of the police to carry out their duty for fear of unpopularity, recriminations, assaults and misrepresentations. The board and the police have difficult tasks to perform and their interventions may be exploited and misrepresented, but, if persuasion fails, action must follow.

The police are not bound in all circumstances to act every time there is a breach of the law, criminal or civil. In the present case, if the
obstructors had chosen to occupy the site for a short period to demonstrate the strength of their feelings and the amount of support for their views, I would not have expected the board or the police to take any action. The distinguishing and disturbing feature of the present case is the undisguised intention of the obstructors by physical interference to deprive the board permanently of their power to perform functions which Parliament has imposed on the board and by an organised campaign of passive resistance, which constitutes both force and a threat, to infringe the civil rights of the board and the criminal code of the Town and Country Planning Act 1971 until the board, and the police representing law and order, are driven to admit defeat.

The present litigation is due partly to the understandable desire of the police to be certain of the extent and limitations of their powers and partly to the understandable desire of the board to obtain the assistance of the police in the unpleasant task of removing and restraining the obstructors so that the board can complete their survey. In my judgment, the powers of the police and the board are adequate to ensure that the law prevails.

But it is for the police and the board to co-operate and to decide on and implement the most effective method of dealing with the obstructors. The court cannot tell the police how and when their powers should be exercised, for the court cannot judge the explosiveness of the situation or deal with the individual problems which will arise as a result of the activities of the obstructors. This court can and does confirm that the police have powers to remove and arrest passive resisters in the circumstances which prevail at the site when the board resume their work to complete their survey. This court can and does indicate that the time has come for the board and the police to exercise their respective powers so that the survey may be completed.

DISPOSITION:
Appeal dismissed. No order as to costs in Court of Appeal or Divisional Court.

SOLICITORS:
Hywel M Thomas (for the board); Neville B Jennings (for the chief constable).