DB v Chief Constable of Police Service of Northern Ireland  UKSC 7 (1 February 2017)
The United Kingdom Supreme Court found that the police service in Northern Ireland wrongly determined that they did not have the power to prevent disruptive and violent protests through a residential area. Freedom of assembly in article 11 of the ECHR is not absolute and there is no obligation on police to facilitate protests that are not peaceful. On the contrary, police have a duty to protect others from any violence.
The Public Processions (Northern Ireland) Act 1998 (the Act) provided an independent statutory body called the Parades Commission with responsibility to manage public processions. The Act imposed a duty on anyone proposing a public procession to give advance notice to the police and made it a criminal offence to organise or participate in a public procession without proper notice. It was also an offence to fail to comply with any conditions imposed on the conduct of a procession.
On 3 December 2012 the Belfast City Council decided to stop flying the Union Flag over Belfast City Hall every day and to fly it on certain designated days only (18 times in total over the course of the year). This decision sparked protests by loyalists which continued for some months.
The protestors marched from East Belfast to Belfast City Hall and back again, taking a route through the Short Strand area. The Short Strand area is a traditionally “nationalist” area and during the processions violence, disorder and sectarian abuse were directed at local residents. No notifications were made under the Act that the processions would take place.
The Police Service for Northern Ireland (PSNI) initially prohibited protestors from entering the Belfast City Centre on the basis that there was a threat the protests would create disorder, but this decision was soon reversed as it was determined that there was a need to facilitate protest in the area and ease growing community tension. From 8 December 2012 onwards the protestors were allowed to enter the City Centre and pass through Short Strand on a weekly basis until March 2013. During that time, the PSNI took no action to stop them and made a number of public statements to the effect that it did not have legal power to stop a protest that had not been notified under the Act.
The appellant, DB (appellant) is a resident of Short Strand and he and his neighbours’ homes came under attack during marches that took place in December 2012 and January 2013. The appellant commenced judicial review proceedings challenging the failure of the PSNI to stop the protests. The High Court held that the police had failed to appreciate the extent of their powers to stop a protest. The Court of Appeal allowed the appeal by PSNI, and DB then appealed to the Supreme Court.
The Supreme Court unanimously allowed the appeal and held that the PSNI misconstrued its powers to stop parades in the Short Strand area. As Lord Kerr (with whom the other judges agreed) noted in his reasons, the decision centred on the police force’s “conception and understanding” of their powers to control the protests.
Lord Kerr found that police officers had a general law duty to stop the commission of offences. Participating in an un-notified procession was a criminal offence under the Act and therefore the police had the power to prevent the processions from taking place.
Lord Kerr then addressed the argument raised by the PSNI that they believed they were obliged by article 11 of the European Convention on Human Rights (ECHR) to facilitate peaceful protests, even though they considered that the protests were technically illegal.
In his consideration of article 11, Lord Kerr reviewed jurisprudence from the European Court of Human Rights (ECtHR), including the case of Eva Molnar v Hungary (Application 10346/05), in which the complainant argued that their rights to freedom of assembly under Article 11 had been infringed by police dispersing a protest, merely because prior notification of that protest had not been given. In that case the ECtHR noted that it is generally not contrary to the spirit of Article 11 to impose notification requirements where such requirements are necessary for legitimate purposes, such as protecting public order and national security. However, in certain circumstances dispersing a protest solely on the basis of failure to provide notification may unfairly restrict freedom of assembly (for example, stopping a spontaneous political demonstration). The EctHR noted that it is “important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by article 11 of the Convention is not to be deprived of all meaning”.
However, Lord Kerr noted that in this instance the protests were “far from peaceful” and there was no obligation on the police to facilitate them. In fact, they had an inescapable duty to prevent what were plainly illegal processions from taking place and to protect those whose rights under Article 8 (the right to privacy) were in peril of being infringed.
This decision drives home the importance of the careful balancing act between protecting the rights to freedom of speech and assembly, protecting the rights and freedoms of others and ensuring public safety and public order. Under the ECHR and at international law, the rights to freedom of assembly and expression are not absolute and may be restricted to protect public order, safety and the rights and freedoms of others.
As the present decision shows, it is certainly possible to limit protest rights where there are valid threats to public safety, order and the rights and freedoms of others. However, it is crucial that each new law and exercise of power is considered very carefully to ensure that our rights to freedom of expression and assembly are being adequately protected.
The decision also comes at a time when protest rights are being limited globally. In recent years laws restricting protest rights have been introduced across the world, including countries like the United States whose laws have traditionally been supportive of these rights.
Anti-protest laws have also been passed in Tasmania and NSW, and a similar bill was abandoned by WA in 2017. These laws in Australia have attracted UN condemnation. Tasmania’s anti-protest laws have also been the subject of High Court litigation. In the case of Brown v Tasmania, former senator Bob Brown challenged the constitutional validity of Tasmania’s anti-protest laws. Judgement is reserved at the time of writing.
The full text of the decision is available here.
Chloe Gall is a Secondee Lawyer at the Human Rights Law Centre.