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The Supreme Court’s Decision

But life was actually quite simple for the PSNI, and yet the Force insisted on making it complicated. The Supreme Court stripped things back to basics to remind the PSNI that, under the general law, the police have a duty and a power to prevent the commission of criminal offences. That fundamental duty of the police at common law was expressly confirmed by the Police (Northern Ireland) Act 2000, s 32 which provides:

“(1) It shall be the general duty of police officers-

…

(c) to prevent the commission of offences…”.

The parades were unnotified under the 1998 Act. Participating in an unnotified parade was a criminal offence under the 1998 Act. The police had a power and a duty to prevent the commission of criminal offences. Therefore, the PSNI did have the power to stop an unnotified parade. Simple.

Or perhaps only so simple with the benefit of hindsight. The High Court judge had allowed the judicial review on this basis. But the Court of Appeal allowed the Chief Constable’s appeal. It had said that the central issue in the case was whether the police response to the parades was based on the need to take account of “the possibility of violence and disorder giving rise to Article 2 risks both in the immediate vicinity and in the wider Northern Ireland community” [37]. Those were concerns that played heavily on the PNSI. Intelligence had suggested that, had they stopped the protests in the early days, there was a significant risk to life that would be posed by the resultant disorder and violence. However, the Supreme Court roundly disagreed with the Court of Appeal’s view on the central issue. According to Lord Kerr, the key issue was actually whether the PSNI had properly understood its powers. That analysis did not call on the police to form a view as to whether a parade should take place (something the PSNI did not want to descend into). What was required was a decision as to whether a parade was taking place legally. If it was not, either because the parade did not comply with a condition imposed by the Parades Commission or because it had never been notified to the Parades Commission, the police had the power to prevent an illegal parade.

ECHR, art 11

It was clear that the PSNI had considered the implications of the art 11 right to freedom of peaceful assembly and association with others. But of course that is a qualified right, with restrictions permissible as prescribed by law and necessary in a democratic society for the prevention of disorder or crime.

The Supreme Court considered Eva Molnar v Hungary (App No 10346/05) in which the ECtHR had decided that notification requirements would not normally encroach on the art 11(1) right. However in that case the ECtHR had recognised there may be special circumstances when a spontaneous demonstration is justified and where authorities should show tolerance towards unnotified peaceful gatherings if art 11 is not to be deprived of its substance. The problem for the PSNI in this case was twofold: first, the vital ingredient of spontaneity (which might absolve organisers of the need to notify of the parade) was missing. Secondly, the Supreme Court agreed that the 1998 Act was Parliament’s considered response to Northern Ireland’s intractable parades’ problem. Fundamental to its successful operation was the requirement for notification, especially of those parades likely to be contentious. Here the parades were far from peaceful and the PSNI had no obligation under art 11 to facilitate them. As Lord Kerr said:

“To the contrary, they had an inescapable duty to prevent, where possible, what were plainly illegal parades from taking place and to protect those whose rights under Article 8 of ECHR were in peril of being infringed” [62].

Operational Discretion

According to Lord Kerr [72], “[i]t is universally agreed that PSNI must have operational discretion to make policing decisions” (see Osman v UK (1998) 29 EHRR 245). It was also correct that operational discretion does not equate to immunity from judicial scrutiny of policing decisions (H v Commissioner of Police of the Metropolis [2013] 1 WLR 3021). The Appellant had argued that the police’s operational discretion was circumscribed by the imperative of ensuring full effectiveness of the 1998 Act and the positive obligation to protect his art 8 rights. He also argued that the Court of Appeal had failed to consider if the PSNI’s actions passed the proportionality test. The Supreme Court gave little attention to this proportionality argument for the very reason that the mischief or fault was more straightforward, namely that the PSNI had misconstrued its powers. Proportionality depended on context and the police had set themselves the wrong context in which to make decisions [74].

Of course, this analysis also allowed the Supreme Court to neatly avoid being drawn into decisions on what proportionate action would have looked like or what policing decisions could or should have been taken.

But the PSNI had the Right Intention

While the PSNI may have forgotten its core duty and power to take steps to prevent crime, its heart was in the right place, as Lord Kerr was at pains to point out:

“There can be no reasonable suggestion…that the police failed to treat the control of parades and demonstrations with sufficient seriousness….This case is not about the sincerity and authenticity of the efforts made by the police to control the parades. It is about their conception and understanding of the powers available to them to do so.” [2]

There was praise for the managerial and strategic steps taken by the police. They had responded to intelligence reports, consulted with interested parties and liaised with community leaders. But the issue was not shortcomings on those fronts. The issue was whether the PSNI was sufficiently aware of the full range and scope of its powers. As Lord Kerr said, it was:

“necessary for a police force in our society to have a proper understanding of the extent of the legal powers available to them in order to discharge their duties effectively and fairly in service of the community” [3].

Comment

By diligently trying to recognise apparently competing claims under arts 8 and 11, trying to engage the Parades Commission to control the parades, and holding the mistaken view that they needed to police the parades outside of the 1998 Act scheme, the PSNI was, unfortunately, just making life difficult for itself. Entirely understandably, the Force did not want to be drawn into the controversial arena of deciding what parades should be permitted and under what conditions, but there was a failure to see that it did not have to be this way. The 1998 Act made notification of an intention to hold a parade vital to the scheme of control. Without a notification, the integrity of the 1998 Act was undermined. The PSNI made the situation more complicated than it was or needed to be, a point not lost on Lord Kerr. Yes, it remained true that the police did not have the power to ban the parades but it did have “ample legal power to stop them” [65]. They could be stopped solely because they were unnotified.

This case is a helpful reminder that, certainly in policing, it sometimes pays to go right back to basics. What are the core powers and duties of a constable? Can these be used to cut through what might appear a tricky legal situation? The power and duty to prevent the commission of offences is firmly settled in common law, it was contained in the Police (Northern Ireland) Act 2000 and repeated in paragraph 1.1 of the PSNI Code of Ethics, directed at each constable. And those simple provisions were what the PSNI should have focused its attentions on.

Please see Part One here.

This article was originally published here.