01 July 2014

The Court of Appeal today allowed an appeal by the Chief Constable against a High Court ruling that the PSNI had facilitated illegal and sometimes violent parades with the effect of undermining the Public Processions (NI) Act 1998 (“the 1998 Act”) in breach of their duties under section 32 of the Police (NI) Act 2000 (“the 2000 Act”) and in breach of DB’s rights under Article 8 of the ECHR. The Chief Constable appealed this decision.

Statutory Scheme

In January 1997 the North Report recommended the establishment of the Parades Commission which would have responsibility for determining whether permission to parade should be granted and on what conditions. It stated there should be three means by which cases were brought to the Commission’s attention: by the police, by the Parades Commission itself and by the public (although the report recognised that there would be last-minute and unforeseen developments which would have to be dealt with by the police and in those circumstances it was recommended that the police should retain the power to intervene on public order grounds). The North Report was implemented by the 1998 Act however a number of the recommendations were not given effect. This included that parades had to be brought to the attention of the Commission by the police and not by the Commission or the public. This meant that if the parade was unnotified the Commision had no role it its control or management.

The Lord Chief Justice, delivering the judgment of the Court of Appeal, said that the partial implementation of the North Report had left a large cohort of parades outside the Parades Commission’s jurisdiction. This has resulted in the PSNI having to deal with unnotified parades using their public order powers in accordance with their duty under section 32 of the 2000 Act to prevent crime.

The trial judge’s conclusions

Mr Justice Treacy (“the trial judge”) held that the regular processions which gave rise to the policing operation being challenged by DB had not been notified to the police in accordance with the 1998 Act and were therefore illegal. He accepted that operational discretion was important to the police and that the court should not unreasonably interfere with that or make practical policing impossible. He added, however, that operational discretion could not be invoked by the police in order to give them immunity from liability for everything that they did. The trial judge considered that ACC Kerr had misdirected himself in that he considered that either the 1998 Act and/or the human rights legislation hampered his ability to stop the parade, arrest those involved and efficiently and effectively police the illegal parades. He concluded that the policing operation during the time in question was characterised by unjustified enforcement inertia.

Submission on behalf of the Chief Constable

It was submitted on behalf of the Chief Constable that:

  • The trial judge had departed from the clear line of authority indicating that the police have an area of discretionary judgment in the realm of operational decisions concerned with public order;
  • There was ample evidence in the submissions to the court to demonstrate that the police considered whether the weekly parade should be stopped and that the police were consistently analysing how to respond to the difficult public order situation;
  • The trial judge took an adverse inference from the fact that ACC Kerr had taken legal advice about the powers of the Parades Commission in respect of unnotified parades. It was submitted that the judge relied on an incomplete portion of an article in the Irish News and misunderstood the nature of the legal advice that was being sought. It was argued that none of this material justified the conclusion that ACC Kerr had misdirected himself; and
  • The trial judge had placed emphasis on a concession on behalf of the Chief Constable that if the Parades Commission had been in a position to make a determination that determination would have been enforced come what may. It was claimed that on that basis the judge concluded that an unnotified parade should have been dealt with the in the same way.

Submission on behalf of DB

DB supported the judge’s reasoning but appealed against the judge’s refusal to let him amend his Order 53 statement seeking a declaration that the failure of the PSNI to take action to prosecute those participating in the marches contrasted with its willingness to act promptly in prosecuting those who had participated in an illegal Republican protest. The basis for the discrimination case was twofold:

  • An affidavit from a person (Martin Duffy) who stated that he had been prosecuted for participating and organising three Republican parades in 2011 which had not been notified;
  • Evidence from a BBC Radio interview on 7 March 2013 when the Chief Constable indicated that in the past three years 147 people had been convicted arising out of unnotified Republican parades and three arising out of unnotified Loyalist parades. It was noted, however, that by the time of the hearing before the trial judge it was noted that 29 people had been arrested in respect of 56 offences relating to the flag protests and 246 people had been arrested in relation to offences generally arising from those protests.

The Lord Chief Justice stated that the test for the grant of leave in judicial review proceedings is whether there are arguable grounds on which there is a reasonable prospect of success. He said that the first piece of evidence was of no assistance because the evidence indicated that the police were anxious in the early months of the protests to pursue those in respect of whom there was evidence that they had committed the most serious offences and Martin Duffy was not one of these persons. The Lord Chief Justice also said that no evidence was adduced to suggest that the numbers of convictions from the two communities was disproportionate to the offences committed in connection with such parades. He added that at the time of the hearing the number of persons arrested in respect of offences arising from Loyalist parades substantially exceeded the numbers convicted arising out of Republican parades.

The Court of Appeal concluded therefore that DB had not demonstrated an arguable case with reasonable prospect of success to justify leave being granted and dismissed the appeal against the refusal of leave.

Legal Principles

The case on behalf of the Chief Constable was that in making decisions as to how to deal with the unnotified parades the PSNI had to take into account the possibility of violence and disorder giving rise to Article 2 EHCR risks both in the immediate vicinity and in the wider NI community. The central issue in this case was whether that was the exercise upon which the police response was based. The Lord Chief Justice said the Court accepted that police do not have immunity from liability in respect of operational decisions but that this case demonstrated something about the limits of the court’s supervisory role. He considered that the police were uniquely placed through their experience and intelligence to make a judgement on the wisest course to take in all the circumstances and that the obligation in section 32 of the 2000 Act to prevent crime did not impose a requirement to intervene on every occasion when an offence was in the course of commission: “The police in this type of situation had a wide areas of discretionary judgment as to how they should respond.”

The Policing Operation

ACC Kerr gave an interview to the Irish News on 14 February 2013 in which he indicated that at its height there were some 4,000 people at 84 different protesting sites across NI. Some of the protests involved members of Loyalist paramilitary groups. Police responses were limited and ACC Kerr considered that there was a need to prioritise vulnerable sites and main traffic routes. This meant that on some occasions there were simply no resources to clear less impacted routes.

The Court of Appeal also heard that the police had to take into account the impact of breaking up such protests. Robust police activity in certain circumstances was considered likely to lead to increased protest and more extensive public disorder. The Lord Chief Justice said it was clear from the evidence to the court that there was an ongoing assessment of the steps available to the police to deal with any offenders and the need to engage with the community in seeking to manage any public disruption.

The trial judge concluded that in the period from 8 December 2012 to the start of January 2013, ACC Kerr did not address himself to the question of whether to stop the weekly parade. The Lord Chief Justice said that apart from the fact that ACC Kerr was on leave for part of that period, the strategy documents indicated that there was ongoing consideration of the manner in which this situation should be managed. He added that it was apparent from the strategy documents that during this period there was a clear commitment to the securing of the best evidence of the worst offenders for the most serious offences through the optimum use of resources and technology.

The trial judge was satisfied that ACC Kerr mistakenly considered that the 1998 Act hampered his ability to stop any parade and his ability to police the situation effectively. This conclusion was based on an interview published in the Irish News on 16 February 2013 which suggested that ACC Kerr stated that he had no power to stop an unnotified parade. The Lord Chief Justice said the interview explored a number of aspects of unnotified parades. He commented that ACC Kerr sought to promote the primacy of the Parades Commission and it was against this background that he said the police did not want to find themselves in the situation they were in prior to the 1998 Act and that they did not have power to stop an illegal parade under this legislation. The Lord Chief Justice said that ACC Kerr was correct in this as the power to stop a parade lay only with the Secretary of State. He also said that ACC Kerr was correct in noting that the offence under the 1998 Act was taking part in an unnotified parade and that police were faced with having to make a decision about the appropriate response to such parades on the basis of a risk or threat to life.

The Court of Appeal did not consider that the Irish News article supported the view that ACC Kerr felt inhibited by the 1998 Act from properly policing these protests and parades but that his complaint was that these were decisions which were likely to politicise the police whereas an object of the 1998 Act had been to remove the police from such a perception.

The trial judge’s second reason also emanated from the same article. It reported that ACC Kerr had met with the Parades Commission on 15 January 2013. The trial judge was highly critical of the fact that ACC Kerr was seeking legal advice in relation to any role there may be for the Parades Commission and considered that this supported the conclusion that ACC Kerr felt inhibited by the 1998 Act from taking action against parades or protesters. The Court of Appeal did not accept that there was any support for that conclusion particularly when the continuing development of the strategy through January and February 2013 to deal with the parades and protests was considered.

The trial judge also drew an adverse inference from the fact that it was not until 25 February 2013 that a decision was made to prioritise action against high profile organisers of the parades. In his evidence, ACC Kerr explained that the standard procedure was to investigate and charge those involved in the more serious offences with less serious offences being investigated concurrently. The Lord Chief Justice said the Court saw nothing in that approach which supported the view that police were dealing inappropriately with these parades.


The Court of Appeal had been provided with a full transcript of the interview given by ACC Kerr to the Irish News which it had understood was not available to the trial judge. In fact the trial judge did have the transcript. The Lord Chief Justice said the context of the interview was important in understanding the article and the trial judge’s interpretation of the article did not take that context into account. He also said that the Court of Appeal was taken through the strategy documents and the decisions made within the Events Policy Book in the kind of detail which was not opened to the trial judge.

The Court of Appeal concluded:

“The issues facing those policing this major public disruption which extended far beyond Belfast to all parts of NI demonstrated the enormous difficulties for those policing modern societies in circumstances of community conflict and heightened tension. We consider that the decision to manage disruption and pursue a subsequent criminal justice charging policy was well within the area of discretionary policing judgement which such situations require in light of the challenges posed by the circumstances set out above.

We note that the manner of implementation of the North Report left the management of unnotified parades outside the competence of the Parades Commission. It also left the police to manage such parades using public order powers rather than providing a tailored legislative scheme. We do not consider that there is anything in the management of the issues arising from these parades by police to suggest that the 1998 Act or section 32 of the 2000 Act were undermined. This was a difficult situation in which proportionate steps were taken to protect the Article 8 rights of DB and the other residents of the Short Strand.”

The Court of Appeal allowed the appeal.