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;
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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.
Conclusion
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.