UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Nandini Bulchandani and Daniel Rudd (Matrix)

On 15 Nov 2016, the Supreme Court heard an appeal against a judgment of the Court of Appeal in Northern Ireland ([2014] NICA 56) concerning the Police Service of Northern Ireland’s (PSNI) policing of parades in the context of the flag flying protests of 2012-13. The appeal was heard by Lords Neuberger, Kerr, Reed, Hughes and Dyson; a video recording of the hearing is available here.

This is a case that raises important questions concerning the policing of parades/protests in Northern Ireland and judicial review of operational policing decisions more broadly.

Background

The applicant (and appellant before the UKSC) is a resident of the Short Strand area of Belfast through which a number of parades passed in Dec 2012 – Jan 2013. The parades gave rise to violent disorder and damage to property; this caused the appellant to leave the area fearing for her safety.

These loyalist protests took place against the backdrop of Belfast City Council’s decision to fly the Union flag for only 15 days a year. The organisers did not notify the parades to the PSNI (and onwards to the Parades Commission – which only plays a role in relation to notified parades) as is required (on pain of criminal penalties) by the Public Processions (Northern Ireland) Act 1998, s 6.

The PSNI decided not to prevent the parades, justifying its decision in the following terms:

“[requiring the police] to forcibly end every violent protest would likely place a disproportionate burden on them, especially where such an approach could result in the escalation of violence across the province. In a highly charged community dispute, most courses of action will have inherent dangers and difficulties and it must be permissible for the police to take all of those dangers and difficulties into consideration before choosing the most appropriate response.”

The appellant applied for judicial review of the PSNI’s decision to allow the parades to go ahead, its alleged failure to arrest the organisers/participants and its failure to provide assurances that it would take action to prevent parades passing from 2 Feb 2013 onwards. She brought the challenge on the basis that this decision breached her ECHR, art 8 rights and the Police (Northern Ireland) Act 2000, s 32. Mr Justice Treacey granted the application in a judgment ([2014] NIQB 55) handed down in April 2014 – the Chief Constable of the PSNI appealed.

Judgment of the Court of Appeal in Northern Ireland

The Court of Appeal in Northern Ireland allowed the PSNI’s appeal. Applying E v Chief Constable [2008] UKHL 66, the Court held that the obligation to prevent crime under the Police (Northern Ireland) Act 2000, s 32 did not impose a requirement to intervene on every occasion an offence is being committed – the police had “a wide area of discretionary judgement” in the circumstances. The PSNI was faced with responding to the parades on the basis of a risk or threat to life. Limited police resources, the need to prioritise vulnerable sites and the need to take into account the potential impact of breaking up the protests were all relevant considerations.

While confirming that the PSNI does not have the power to stop an illegal parade under the Public Processions (Northern Ireland) Act 1998, the Court rejected a contention that the PSNI did not consider that it had the powers to stop the parades under its general public order powers and/or its obligation to prevent crime.

The Court noted that policing major public disruption, extending across Northern Ireland, in circumstances of community conflict posed enormous difficulties. In this context, the PSNI’s decision making on managing the parades and subsequent criminal justice charging policy was “well within the area of discretionary police judgement.” There was no breach of the Police (Northern Ireland) Act 2000, s 32 and proportionate steps were taken to protect the ECHR, art 8 rights of the applicant.

Issues before the Supreme Court

The Supreme Court was called upon to determine two primary issues:

1. Whether the PSNI misdirected itself as to the extent of its legal powers to stop illegal parades.

2. The appropriate standard of review and scope of discretion to be afforded to the police in making operational decisions concerning public order issues.

Judgment is awaited.

About the author: Aidan Wills is a barrister at Matrix Chambers, specialising in public law and human rights, media and information law and employment law.