R v Chief Constable of Sussex. Ex parte International Trader's Ferry Ltd

(1995) The Times July 31 Queen's Bench Division

Decisions by a chief constable to restrict to a limited number of days police protection of a company transporting livestock for export, in the face of disorderly public demonstrations seeking to prevent such exports, were measures having an effect equivalent to quantitative restrictions on exports contrary to article 34 of the EC Treaty (Cmnd) 5179 - II).

(1) a decision of the Chief Constable of Sussex made on April 10, 1995 to provide no policing with effect from April 24 to protect the transport of livestock from the port of Shoreham for shipment to France save on two consecutive days a week or four consecutive days a fortnight excluding in any case Fridays weekends or bank holidays and

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

The facts are taken from the judgment of LORD JUSTICE BALCOMBE, who said that the application was based on independent grounds in domestic law and EC law.

DOMESTIC LAW

The court dismissed the claim that under domestic law the chief constable's decisions were a breach of his duty to keep the peace and enforce the law and that in so far as he had a discretion in the exercise of that duty his decisions were unreasonable see Wednesbury [1948] 1 KB 223. A chief constable had a duty to keep the peace and uphold the law and if he abrogated that duty in a particular area the courts could and would intervene.

Courts would not normally interfere with a policy decision made by a chief constable in the exercise of his discretion see Harris v Sheffield United Football Club Ltd [1988] QB 77, 95.

That still represented a correct statement of the law. The court were unable to say that the decisions. taken as a whole. were such that as a matter of domestic law the court could intervene.

COMMUNITY LAW

Article 34 of the EC Treaty provided:

"I Quantitative restrictions on exports, and all measures

having equivalent effect, shall be prohibited between member states."

The first question was whether the chief constable's two decisions were "measures having equivalent effect" within the meaning of the provision. Lord Lester had submitted that the decisions did not restrict exports; indeed the chief constable had no power to do so. All he was doing was to refuse to provide the special police protection sufficient to enable the lorries carrying livestock to reach the port on more than two consecutive days a week or four consecutive days a fortnight.

The court rejected that submission because the police had made abundantly clear that they would prevent a convoy from going through to the port whenever they feared that might cause a breach of the peace. So long as demonstrators remained at Shoreham that would be the general rule as history had shown.

The court also dismissed as misconceived the submission that as the chief constable would have taken a similar attitude had there been a problem caused by animal rights demonstrators protesting against the carriage of livestock within the UK, the measure was not discriminatory against exports as required by the jurisprudence of the European Court of Justice.

The relevant law was to be found in Halsbury's Laws of England (4th edition (1986) volume 52, paragraph 12.95): "In considering whether measures which apply without distinction as to the destination of the goods are caught by the prohibition in article 34, the court examines whether the measures in question discriminate against exports. However, if a measure applies to exports alone it is clear that the basic principle expounded in the Dassonville case applies without qualification save as indicated by the treaty itself."

The principle in Case 8/74 Dassonville v Commission [1974] ECR 837) was that all trading rules enacted by member states which were capable of hindering, directly or indirectly, actually or potentially, intra community trade were to be considered as measures having an effect equivalent to quantitative restrictions.

The chief constable's measures applied only to livestock destined for export to other member states. The fact that in certain hypothetical circumstances which had not yet occurred, and might never occur, the chief constable would have applied similar restrictions to livestock being transported within the UK was neither here nor there: the only measure which he had in fact applied was to goods destined solely for export.

In the court' judgment, therefore, the chief constable's actions amounted to a prima facie breach of article 34.

The question then arose whether what would prima facie be a breach was saved from being such by article 36 which provided: "The provisions of articles 30 to 34 shall no preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security ... Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between member states."

The burden of establishing justification fell upon the chief constable and he, relied on the ground of public policy for that justification. The court noted that an article 36 public policy defence based on security was also raised and rejected in R v Coventry City Council, Ex parte Phoenix Aviation and Others, The Times April 17; [1995] 3 All ER 37, 67-8).

The court also referred to Halsbury's Laws of England (paragraphs 12.98 and 12.100 and notes 12 and 13).

In their Lordship's judgment, the principle to be derived from the judgment and those passages was that the authorities could not rely on the effect of civil disturbances as affording a public policy defence under article 36, provided that the resources were available to deal with such disturbances, and the cost of so doing was not disproportionate.

The court considered that the chief constable might in any event have had difficulty in establishing an article 36 defence and he did not get near to doing so ill the present case.

In the court' judgment the two decisions were measures having an effect equivalent to quantitative restrictions on exports and the chief constable had not established a defence under article 36.

The decisions would be quashed as being contrary to article 34 of the EC Treaty, which, under section 2(1) of the European Communities Act 1972 was also part of UK domestic law.

Comment

Lord Denning the former Master of the Rolls wrote of European law being an incoming tide; in so far as he said it couldn't be held back he has been proved correct. Previously the domestic law was clear - a chief constable has complete discretion over policy matters, see R v Commissioner of Police ex Parte Blackburn [1968] 2 Q.B. 118; and R v Commissioner of Police ex Parte Blackburn [1973] Crim. L.R. 55 where Mr Blackburn attempted to force the courts to direct the Commissioner to enforce laws against gaming and pornography.

What of the individual police officers present at the exports - no mention is made by the court that each and every one holds the office of "Constable", constitutionally they unlike the Armed Forces, are unique and, each bears full responsibility for his or her actions - a constable can never claim that he was merely acting under orders if he performs acts which are legally or morally unacceptable.

It is this belief, that such trade is at least morally unacceptable that lies at the heart of this issue - as John Callaghan, education director at CIWF said, (1995) The Times July 27, "I think this is going to increase people's frustration and make them even more determined to stop this trade".

If European rulings undermine established constitutional principles; such as courts cannot direct chiefs constables how to police any given area; then can we afford Europe? Costs of £7.4 Million are being discussed

On the question of Journey times see, Ken Lane Transport Ltd and Another v North Yorkshire County Council, (1995) The Times, 22 May, a journey could include the whole of the transport of the animal from the farm to its final place of destination for the purposes of The Welfare of Animals during Transport Order SI 1992 No. 3304. In the case the Company had been convicted of failing to provide water food and rest.

Rob Jerrard