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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Singh, R (on the application of) v Chief Constable of West Midlands Police [2006] EWCA Civ 1118 (28 July 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/1118.html Cite as: [2006] WLR 3374, [2007] 2 All ER 297, [2006] EWCA Civ 1118, [2006] 1 WLR 3374 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT, QUEEN'S BENCH DIVISION
(MAURICE KAY L.J. and PENRY-DAVEY J.)
Lower Court No: CO/162/05)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE WILSON
and
LADY JUSTICE HALLETT DBE
____________________
The Queen on the application of Singh |
Appellant |
|
- and - |
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Chief Constable of West Midlands Police |
Respondent |
____________________
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Fiona Barton and Miss Samantha Leek (instructed by Force Solicitors West Midlands Police) for the Respondent.
____________________
Crown Copyright ©
Lady Justice Hallett :
Factual background
The legal framework
(A) the interpretation point,
(B) the proportionality point,
(C) the authorisation point; and
(D) the reasonableness point.
Tuckey LJ granted permission to appeal on the first and third grounds but not on the second and fourth grounds. Ms Carss-Frisk seeks to renew the application for permission to appeal but only on the second ground.
(1) This section applies where a relevant officer has reasonable grounds for believing -
(a) that any members of the public have been intimidated, harassed, alarmed or distressed as a result of the presence or behaviour of groups of two or more persons in public places in any locality in his police area ("the relevant locality"), and
(b) that anti-social behaviour is a significant and persistent problem in the relevant locality.
(2) The relevant officer may give an authorisation that the powers conferred on constable in uniform by subsections (3) to (6) are to be exercisable for a period specified in the authorisation which does not exceed 6 months.
(3) Subsection (4) applies if a constable in uniform has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in any public place in the relevant locality has resulted, or is likely to result, in any members of the public being intimidated, harassed, alarmed or distressed.
(4) The constable may give one or more of the following directions, namely-
(a) a direction requiring the persons in the group to disperse (either immediately or by such time as he may specify and in such way as he may specify),
(b) a direction requiring any of those persons whose place of residence is not within the relevant locality to leave the relevant locality or any part of the relevant locality (either immediately or by such time as he may specify and in such way as he may specify), and
(c) a direction prohibiting any of those persons whose place of residence is not within the relevant locality from returning to the relevant locality or any part of the relevant locality for such period (not exceeding 24 hours) from the giving of the direction as he may specify;
but this subsection is subject to subsection (5).
(5) A direction under subsection (4) may not be given in respect of a group of persons-
(a) who are engaged in conduct which is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), or
(b) who are taking part in a public procession of the kind mentioned in section 11(1) of the Public Order Act 1986 (c. 64) in respect of which-
(i) written notice has been given in accordance with section 11 of that Act, or
(ii) such notice is not required to be given as provided by subsections (1) and (2) of that section.
(6) If, between the hours of 9 pm and 6 am, a constable in uniform finds a person in any public place in the relevant locality who he has reasonable grounds for believing-
(a) is under the age of 16, and
(b) is not under the effective control of a parent or responsible person aged 18 or over,
he may remove that person to the person's place of residence unless he has reasonable grounds for believing that the person would, if removed to that place, be likely to suffer significant harm.
(7) In this section any reference to the presence or behaviour of a group of persons is to be read as including a reference to the presence or behaviour of any one or more of the persons in the group.
The giving or withdrawal of an authorisation does not prevent the giving of a further authorisation in respect of a locality which includes the whole or any part of the relevant locality to which the earlier authorisation relates.
Section 32 provides:
(1) A direction under section 30(4) –
(a) may be given orally,
(b) may be given to any person individually or to two or more persons together, and
(c) may be withdrawn or varied by the person who gave it.
(2) A person who knowingly contravenes a direction given to him under section 30(4) commits an offence and is liable on summary conviction to –
(a) a fine not exceeding level 4 on the standard scale, or
(b) imprisonment for a term not exceeding 3 months,
or to both.
(3) A constable in uniform may arrest without warrant any person he reasonably suspects has committed an offence under subsection (2).
(4) Where the power under section 30(6) is exercised, any local authority
whose area includes the whole or part of the relevant locality must be notified of that fact.
Section 57 provides
In section 16 of the Public Order Act 1986 (c. 64) (which defines "public assembly" for the purposes of the power in section 14 of that Act to impose conditions on public assemblies), in the definition of "public assembly" for "20" substitute "2".
(1) Written notice shall be given in accordance with this section of any proposal to hold a public procession intended –
(a) to demonstrate support for or opposition to the views or actions of any person or body of persons,
(b) to publicise a cause or campaign, or
(c) to mark or commemorate an event,
unless it is not reasonably practicable to give any advance notice of the procession."
Article 9 reads:
(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in worship, teaching, practice and observance.
(2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights or freedoms of others.
Article 10 reads:
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national society, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 11 reads:
(1) Everyone has the right to freedom of peaceful assembly and freedom of association with others including the right to form and to join trade unions for the protection of his interests.
(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police of the administration of the state.
The Appellant's Grounds for Judicial Review
"This case concerns the rights and freedoms of (the appellant) to express and manifest (his) religious beliefs at a peaceful public demonstration, without unlawful interference by the police. Those important rights and freedoms were violated when on 16th December 2004 the police (1) imposed upon (the appellant) requirements that should, as a matter of law, never have been made and then (2) wrongly arrested and detained (him) for alleged failure to comply with those requirements.
More generally, this case raises a point of principle, namely whether and to what extent it might be appropriate for the police to use statutory powers (under section 30 of the Act) intended to deal with persistent anti-social behaviour in particular localities against those peacefully manifesting their rights to protest."
The interpretation point
i. Parliament cannot have intended by general and ambiguous words to interfere with the fundamental right to protest lawfully.
ii. Even if it was thought that Parliament had intended such a result, it would be incompatible with the ECHR and she invited us to read down section 30 in such a way that it does not apply to lawful protests, pursuant to section 3 of theHuman Rights Act 1998.
"The aim of these powers is to prevent people from feeling frightened and discouraged from using public spaces because they feel threatened by groups of young people hanging around."
"… the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."
"Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having."
"Freedom of assembly and the right to express one's views through it are among the paramount values of a democratic society. The essence of democracy is its capacity to resolve problems through open debate. Sweeping measures of a preventive nature to suppress freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles - however shocking and unacceptable certain views or words used may appear to the authorities, and however illegitimate the demands made may be - do a disservice to democracy and often even endanger it."
The authorisation point
"the section is designed to ensure that there is a proper thought-out basis for making the authorisation and expressing that basis in written form, which can later be examined and challenged and which explains to the police, who may later be required to give dispersal directions, information as to the nature of the problem which gave rise to the authorisation and hence in what circumstances the need for directions may arise".
The proportionality point
Conclusions
"These qualifications are necessary to prevent the rights being abused and the rights of others suffering in consequence. Unfortunately, as the facts of this case demonstrate, there are, among the public, those who intend to take advantage of others seeking to exercise their right to protest lawfully, by creating public disorder, committing unlawful acts and causing personal injuries and damage to property. Today, those who have such an intent, can, by using technology, assemble greater numbers of individuals wishing to create disturbances than has hitherto been possible. When this is happening, it presents great challenges for the authorities. While the authorities must be prepared to have their actions scrutinised to ensure that they are proportionate and reasonable and in accordance with the law, it is equally important that, subject to any action taken to comply with these requirements, the authorities are not prevented from taking action and that the required action is in fact taken by the authorities to prevent disturbances happening. Otherwise, the conduct of those intent on creating unlawful disturbances can undermine the ability of others lawfully to exercise their rights, including their rights under Articles 10 and 11 to protest."
"A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation."
Lord Justice Wilson: -
Lord Justice Wall
Section 30 does not expressly exclude protests. On the contrary, their inclusion is a matter of necessary implication in the Morgan Grenfell sense because Parliament clearly had the relationship with civil liberties in mind. It specifically excluded from section 30(4) lawful conduct under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 and, more significantly, processions of the kind covered by section 11(1) of the Public Order Act. It also amended the definition of "public assembly" in section 16 of the Public Order Act by reducing the numerical criterion from 20 to 2. I consider that all this gives the very clear indication that it did not intend to exclude protests. If it had so intended, it would have made express provision, as it did for processions. The intended exceptions are specific and narrowly defined. In my judgment the position is "convincingly clear" here in a way in which it was not in Morgan Grenfell or W. Moreover, I do not consider that it can properly be said that in a Simms sense section 30 "overrides fundamental rights". It does not affect them at all in the absence of reasonable grounds for believing that the presence or behaviour of the group has resulted or is likely to result in any members of the public being intimidated, harassed, alarmed or distressed. Mr Pievsky's submission [is] that these are weak criteria because intimidation and harassment are not qualified by a word such as "serious", and the alarm or distress of one or two possibly hyper-sensitive bystanders is an inappropriately low threshold. The use of a dispersal direction, which I accept may interfere with fundamental rights, still falls to be justified by the test of proportionality and other public law criteria. In this way section 30 is limited not only by its own express requirements; its use is controlled by, among other things, the European Convention on Human Rights. Far from "overriding fundamental freedoms", its use is subject to them. In my judgment section 30 can be applied to protests. This conclusion also has the advantage of obviating the need to determine on a case-by-case basis whether or not a particular gathering of two or more people is properly characterised as "a protest".
"There is indeed every indication that Parliament appreciated the significance of the power it was conferring but thought it an appropriate measure to protect the public against the grave risks posed by terrorism, provided the power was subject to effective constraints. The legislation embodies a series of such constraints."
Lord Bingham then enumerated the constraints for that legislation.
I do not accept that it was unlawful for them to have resort to it. If public disorder is a continuing problem in a town centre or a part of one, it would be absurd if the police were to have to procure a separate authorisation to deal with each successive manifestation or source of disorder, perhaps giving rise to numerous authorisations with temporal overlaps. I find that to be unnecessary and undesirable. It is an important safeguard that there can be no authorisation at all unless the demanding requirements of section 30(1) are met. Once they are, there is no reason why an authorisation should not be used in relation to a previously unforeseen group, subject to the further important safeguards that a dispersal direction can only be given if section 30(3) is satisfied and its use is proportionate and otherwise in conformity with public law criteria. (Emphasis supplied)
The evidence of how the police officers came to resort to the use of statutory dispersal directions is to be found in the witness statement of Chief Superintendent Goodman. It seems that he had a telephone conversation with Inspector Phillips, the former being in the police station and the latter, as I have indicated, being at the Theatre. The Chief Superintendent says that Inspector Phillips gave him details of the nature of the disorder:
"... and I discussed with him the most appropriate tactics."
He then lists the options that he considered with Inspector Phillips. They were: (1) arresting individuals for breach of the peace, if they had committed a breach of the peace or if one was imminent; (2) arresting individuals for breaches of section 5 of the Public Order Act 1986 or for other offences if matters escalated; (3) asking people to disperse under section 30(4) of the 2003 Act, having regard to the fact that an authorisation notice was already in force for the area; (4) using powers under section 14 of the Public Order Act 1986 to place conditions on the assembly; (5) doing nothing, thereby allowing members of the public to be intimidated and distressed by the actions of a few of the protesters. He then recounts his reasoning which resulted in the resort to section 30(4). He states that he was particularly keen that individuals should not be arrested for breach of the peace or Public Order Act offences if at all possible. His aim was to prevent or minimise disorder over a sensitive issue. He was at pains to ensure that the police were acting and were seen to be acting impartially and sensitively; that the situation was delicate, volatile and difficult, and he was concerned to balance the legitimate rights of the community to protest peacefully against the rights of the Theatre to stage the play and the overarching need to protect the safety of the public. He adds:
"It was ... clear from the information I had that members of the public and the theatregoers (particularly the children) were likely to become alarmed or distressed by the actions of the protesters. The use of the powers under section 30 ... was considered to be proportionate action. Further, it was the least intrusive [of the] options available to us."
He added that he considered the option of arrest to be substantially more intrusive. Moreover, he considered section 30 to be more appropriate than powers under section 14 of the Public Order Act, which could affect all the protesters throughout the duration of the play being held at the Theatre.
"The court must allow for the fact that it may be very difficult for the police to identify the target or predict the scale of violent disorder.
I conclude that the court should accord a high degree of respect for the police officers' appreciation of the risks of what the members of the crowd might have done if not contained. At the same time the court should subject to a very close scrutiny the practical effect which derogating measures have on individual human rights, the importance of the rights affected, and the robustness of any safeguards intended to minimise the impact of the derogating measures on individual human rights."