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Wide discretion of chief constable to prevent breach of the peace

(1998) The Times, November 16th 1998 HOUSE OF LORDS

Regina v Chief Constable of Sussex, Ex parte International Trader's Ferry Ltd


At Police Journal Volume LXX Number 3 July-September 1997 the Court of Appeal decision was Reported under the heading "European law: that ever flowing tide: A new tributary, Restricted policing decision reasonable; a little Sovereignty retained"?

The House of Lords have now dismissed an Appeal by International Trader's Ferry Ltd.


The Facts

The case concerned police protection for the customers of ITF, a company involved in the export of livestock through the port of Shoreham, during the early months of 1995 when animal rights protesters were trying to stop the trade.


The Court of Appeal Decision.

The Court allowed an appeal by against the decision of the Queen's Bench Divisional Court The Times July 31, 1995; [1996] QB 197 allowing an application for judicial review by International Traders' Ferry Ltd of

(i) a decision of the chief constable on April 10, 1995 to provide no policing with effect from April 24 to protect the transport of livestock to the port of Shoreham for shipment to France save on two consecutive days a week or four consecutive days a fortnight and

(ii) a decision of April 24, 1995 refusing to change the earlier decision or delay its implementation.


The House of Lords Decision.

The Chief Constable's Duty.

LORD SLYNN said that as a matter of domestic law, Trader's Ferry's case in essence was that the chief constable had an overriding duty to make it possible for lawful activities to be carried out and that he could not lawfully allow the illegal acts of violent demonstrators to deflect him from that duty.

Alternatively, if he had a discretion as to how he dealt with the problem then his decision was one to which no chief constable could reasonably have come.

As his Lordship saw it, a right to trade lawfully was not an absolute right by which the chief constable owed a duty to protect the trader at whatever cost, any more than was the right to protest lawfully such an absolute right.

In a situation where there were conflicting rights and the police had a duty to uphold the law the police might, in deciding what to do, have to balance a number of factors, not the least of which was the likelihood of a serious breach of the peace being committed. That involved balancing judgment and discretion.

In coming to his decisions, the chief constable had taken into account the number of men available to him, his financial resources to provide police officers, the rights of others in the area and their protection, and the risk of injury during the demonstration to the drivers, the police and others. He took into account no less the competing rights of Trader's Ferry to trade and of those who objected to the trade peacefully to demonstrate.

It was wrong to over-emphasise particular areas where he might have done more or where other chief constables might have reacted in a somewhat different way to particular aspects of the problem. The overall picture had to be regarded.

As was said by Barnard and Hare (1997) 60 Mod Law Review 394, 409 "there may well be important and sound reasons for a chief constable's decision not to commit all his force's resources to ... a given dispute or demonstration." This was such a case.

As to the police on rare occasions having told lorry drivers to turn back when their resources were insufficient to provide protection, there was no rule that the police could never restrain a lawful activity if that was the only way to prevent violence and a breach of the peace.

It had been argued that whatever the position under domestic law, the chief constable's decisions were measures amounting to a quantitative restriction on exports contrary to article 34(1) of the EC Treaty.

His Lordship doubted that the chief constable's acts or omissions here did constitute a "measure" for the purposes of article 34, but it was not necessary to decide the question because even on the assumption that they did constitute measures, the decisions taken by the chief constable were justified on the ground of public policy within article 36.

Quantitative restrictions justified on grounds of public policy included not just situations where there was something inherently bad about the activity itself which justified the restriction but also where the broader requirements of public policy, here the maintenance of public order, justified steps being taken which so long as proportionate might have a restrictive effect.

The chief constable had shown that what he did in providing police assistance was proportionate to what was required. To protect the lorries, in the way that he did, was a suitable and necessary way of dealing with potentially violent demonstrators.

To limit the occasions when sufficient police could be made available was, in the light of the resources available to him to deal with immediate and foreseeable events at the port and at the same time to carry out all his other police duties, had been shown to be necessary and in no way disproportionate to the restrictions which were involved.

He was controlling and arresting violent offenders. He was, moreover, not dealing with a situation where no other way of exporting the animals was available. Far from failing to protect the appellants' trade he was seeking to do it in the most effective way available with his resources.

LORD HOFFMANN said, inter alia, that the claim in domestic law was quite hopeless. The fact that a chief constable considered that certain resources would be needed to prevent some kind of criminal behaviour did not entail that he was obliged to provide them.

But it would be absurd for a court to make an order against an individual chief constable requiring him to take certain steps on the assumption that he had access to all the resources of the United Kingdom.


The Decision

The duty of the police to uphold the law was subject to a wide discretion on the part of the chief constable and circumstances could arise where, having regard to the manpower and financial resources available to meet the overall operational needs of the force, a decision could properly be taken not to commit all available resources to a given dispute or demonstration, or to restrain a lawful activity so as to prevent a breach of the peace.

The House of Lords so held in dismissing an appeal by International Trader's Ferry Ltd, from the order of the Court of Appeal [1998] QB 477 reversing the decision of the Queen's Bench Divisional Court [1996] QB 197 to grant an order of certiorari quashing two decisions by the Chief Constable of Sussex to restrict sailings of livestock from Shoreham owing to the cost of policing demonstrations by groups opposed to such sailings.


Comment

JUDICIAL REVIEW OF POLICE ACTION

The Commentary in Police Journal on the Court of Appeal decision said that Common Sense had prevailed. That seems to have carried over to the House of Lords. A chief constable must have a discretion as to how he uses his resources.

By the orders of mandamus, prohibition and certiorari, the court can order an inferior court or public body to take action where it has failed to do so or to desist from action or it can quash a particular decision.

The courts are reluctant to interfere in police decisions. In R v Metropolitan Police Commissioner, ex parte Blackburn [1968] 2 QB 118 Mr Blackburn was seeking an order to compel the police to enforce the law against illegal gaming in London. The Divisional Court, while accepting that the Commissioner was ultimately answerable to the law, said.

"No minister of the Crown can tell [the Commissioner] that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone."

It is also a clear expression not only of the chief officers' discretion but also that of the individual constable, he/she can be ordered to a particular site but could not be told to "Arrest that man!". That discretion to arrest is granted by statute and cannot be taken away by superior officers.

The court's conclusion was that the Commissioner exercised a discretion as to operational matters and so long as he stayed within the broad parameters of that discretion, the court would not interfere. Those parameters would include a decision not to prosecute for attempted suicide or for sex with girls under 16 but, apparently, a decision not to prosecute for thefts under a certain value would not be included.

In other attempt Mr Blackburn sought an order to ensure that the Metropolitan Police enforced the Obscene Publication Acts. Again the court decided that it would not normally interfere in the exercise of a chief officer's discretion.

This approach can also be seen in R v Chief Constable of Devon & Cornwall, ex parte CEGB [1981] 3 WLR 961 where the applicant sought mandamus against the Chief Constable who had refused to order his officers to clear a site of demonstrators protesting peacefully and with the landowner's consent in order to prevent a survey of the land for a planned nuclear power station. The court stated what the police powers were in such a situation and clearly felt that they should be exercised but refused to order the Chief Constable to exercise them.

Another relevant case is R v Oxford Ex parte Levy (1986) The Times 11 November, after riots in Toxteth, the Chief Constable had instructed officers not to enter that area of Liverpool in police vehicles. The applicant had had property stolen and the thieves were being pursued by a police car which stopped at the border.

The Court of Appeal held that the method to be adopted in the Toxteth area of Liverpool was a matter for the discretion of the Chief Constable of Merseyside and since there was no evidence of failure on his part to discharge his duty to keep the peace and enforce the law it was not for the courts to review his choice of methods.


Rob Jerrard

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