DB v. Chief Constable of Police Service of Northern Ireland

United Kingdom

01.02.2017

Civil

Police have recourse to common law powers to stop a parade in order to prevent disorder

Flags protest, took place throughout Northern Ireland in late 2012 and early 2013. Application for leave to apply for judicial review was first made on 31 January 2013. Its primary focus was on obtaining relief in relation to a planned parade on 2 February and challenging failure of PSNI to give assurances that they would take action to prevent that parade from taking place. Statement served in support of the application under Order 53 of the Rules of the Court of Judicature of Northern Ireland (1980) did, however, contain the claim that, failure of PSNI to prevent the parade had the effect of undermining the Public Processions (Northern Ireland) Act 1998 and that it constituted a breach of their obligations under section 32 of the Police (Northern Ireland) Act 2000. Application for judicial review had also sought orders against the Secretary of State for Northern Ireland for failing to exercise her powers under section 11 of the 1998 Act to prohibit the holding of the procession. That particular application was dismissed. Court of Appeal concluded that, 1998 Act had not been undermined by decisions and actions of police in relation to parades. It also decided that, steps taken by the police to protect the Article 8 rights of the appellant and other residents of Short Strand were proportionate.

Parades Commission was established by Section 1 of 1998 Act. Its functioning in relation to controlling public processions depends on receipt of a notification of an intention to hold a parade. Section 6(1) of Act provides that a person proposing to organise a public procession shall give notice of that proposal to a member of the police force; within a stipulated period (section 6(2)); in a prescribed form (section 6(3)); and providing certain specified information (section 6(4)). By virtue of section 6(6) Chief Constable is to ensure that, Parades Commission is provided with a copy of notice immediately.

Section 8 gives commission powers to impose on persons organising or taking part in "a proposed public procession" such conditions as it considers necessary. These may include conditions as to the route of procession and prohibiting it from entering any place. Section 9 gives the Secretary of State power to review a determination by revoking or amending it. Section 11 empowers the Secretary of State to ban processions in certain circumstances. This provision has not been invoked during the life of the commission.

Although article 4(1) of 1987 Order was repealed by 1998 Act, recommendation that had been made in North report that police should retain the power to intervene on public order grounds if determination of the Parades Commission was defied, was not implemented. This does not mean, that police could not have recourse to common law powers to stop a parade in order to prevent disorder and to duty under Section 32 of 2000 Act in order to avert the criminal offence of participating in an un-notified parade contrary to section 6(7) of the 1998 Act.

Parades in this case were far from peaceful. The police had no obligation to facilitate them. 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. Meeting those obligations had to be tempered by operational constraints, of course. Stopping the parades without taking account of what further violence that might provoke was not an option. But the operational difficulties required to be assessed in the correct legal context. Police Service for Northern Ireland (PSNI) had to have a clear-sighted appreciation of their available powers and an equally percipient understanding of the fact that the Parades Commission had no power to intervene.

It is universally agreed that PSNI must have operational discretion to make policing decisions. It is also generally accepted, however, that operational discretion does not equate to immunity from judicial scrutiny of policing decisions. Difficulties in making policing decisions should not be underestimated, especially since these frequently require to be made in fraught circumstances.

Supreme Court declared that, in their handling of the flags protest in Belfast during the months of December and January, PSNI misconstrued their legal powers to stop parades passing through or adjacent to the Short Strand area.

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