Brehony, R (on the application of) v Greater Manchester Police [2005] EWHC 640 (Admin)

Case No CO/6292/2004[2005] EWHC 640 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 23 March 2005
The Strand
London
WC2A 2LL
B e f o r e:
MR JUSTICE BEAN
THE QUEEN
on the application of LOUIS BREHONY
- v -
Venue CHIEF CONSTABLE OF GREATER MANCHESTER POLICE
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
MR KANBAR HOSSEIN-BOR (instructed by Messrs Christian Khan, London WC1A 1LY) appeared on behalf of THE CLAIMANT
Venue MR PETER COWAN (instructed by Weightmans, Manchester M2 2BG) appeared on behalf of THE DEFENDANT
J U D G M E N T
Wednesday, 23 March 2005
Between
Brehony, R (on the application of)ClaimantGreater Manchester PoliceDefendant
[1]The claimant, Louis Brehony, challenges by way of this application for judicial review a decision of the Chief Constable of Greater Manchester imposing a condition prohibiting him and fellow members of a group known as "Victory to the Intifada" from demonstrating outside the Marks & Spencer store in Manchester City Centre on Saturdays from 29 November 2004 until 3 January 2005. This group had been demonstrating every Saturday outside the store for about four years. The store is in the pedestrianised shopping area in the centre of the city.[2]The purpose of the demonstration, as it is put in the grounds in support of the claim, was to highlight the support given by Marks & Spencer to the Government of Israel and to urge the public to boycott goods on sale at the store. The claimant had been a member of the group for about two years.[3]The group handed out literature, including a petition to which passers-by could add their names and addresses and make a donation if they thought fit, and also some members of the group held up banners or placards.[4]The petition is a good example of the literature. It says:
"Fight Racism! Fight Imperialism! Solidarity with Palestine! Victory to the Intifada! Isolate the Zionist State! Boycott Israeli Goods! Boycott Marks & Spencer!"
It goes on to give details in a few lines of the nature of the Intifada and why it was happening. The literature was partly directed against the Government of Israel and in support of the Palestinian Intifada and partly called more specifically for a boycott of Marks & Spencer. In the summer of 2004 a counter-demonstration was formed outside the store, whose purpose was to express support for the Government of Israel and opposition to the Victory to the Intifada group.[5]The usual place where the Victory to the Intifada group demonstrated was not immediately outside the main entrance to the store, but at the corner of the store conveniently close by. That location was specified in a notice given by the Chief Constable under section 14 of the Public Order Act 1986, which was not opposed.[6]However, on 25 November 2004, a letter signed by the Chief Constable personally was sent to Mr Derbyshire who, like the claimant, was a member of the group. The first line of his address is given as:
"Defend the M & S Picket Campaign", but there is no dispute that this is the Victory to the Intifada group by another description. Mr Derbyshire, the claimant and their colleagues were informed as follows: "
I am aware that over recent months demonstrations have been taking place outside Marks and Spencer's in Manchester City Centre and I would like to assure you that Greater Manchester Police are fully committed to ensuring that peaceful protests are allowed to take place safely in normal circumstances. The Christmas festive period is due to commence at the end of November, which attracts large numbers of people to the City Centre each day. Experience has shown that the number of visitors to the City trebles at this time of year thereby increasing the potential for disruption. Whilst the freedom to demonstrate is important, so too is the freedom of people to go about their normal daily business with a minimum of disruption. Accordingly, every effort is made to ensure that a balance is struck between the rights and freedom of those taking part in an event and those living and working close by. As the Chief Constable for the Greater Manchester area, it is my duty to formally notify you under Section 14 Public Order Act 1986 that between 29 November 2004 and 3 January 2005, I am imposing conditions on your demonstration because I believe that it may result in serious disruption to the life of the community in the City of Manchester or serious public disorder. The imposition of such conditions on you and persons taking part in the demonstration are necessary to prevent such disruption or disorder. For the stated period between 29 November 2004 and 3 January 2005, the following conditions will apply daily: * The demonstration will take place at the Peace Gardens at the rear of Manchester Town Hall adjacent to St Peter's Square. * The duration of the demonstration will be no more than three hours commencing at 12 noon. The above conditions still provide you with the right to demonstrate peacefully and facilitate your right of freedom of speech under Article 10 of the European Convention on Human Rights. May I remind you that failure to comply with the above conditions is a criminal offence for which you are liable to arrest and prosecution." It is not disputed that an identical letter was sent to a representative of the counter-demonstration.[7]There is an issue of construction in relation to the first line of this letter:
"I am aware that over recent months demonstrations have been taking place outside Marks and Spencer's in Manchester City Centre"
. The issue is whether this refers to both the Victory to the Intifada group and to the counter-demonstration, or simply to the Victory to the Intifada group. It seems plain to me that it was intended to refer to both the Victory to the Intifada group and the counter-demonstration and would have been understood so to mean by any recipient of the letter with a knowledge of what had been happening on the ground.[8]The Peace Gardens referred to in the Chief Constable's conditions are approximately half a mile away from the Marks & Spencer City Centre store. I am told that the Peace Gardens are a well-frequented area of Manchester, though perhaps not quite as busy as the City Centre area outside Marks & Spencer. There is, however, no Marks & Spencer store in the vicinity. The only Marks & Spencer store in Manchester, apart from that in the City Centre, is a small food-only outlet. It is plain, therefore, that the imposition of the condition, while still enabling the claimant and his colleagues to put their point of view over to the public in Manchester, would significantly reduce the impact of a demonstration in close proximity to the City Centre store of Marks & Spencer whose policies the group criticised.[9]The claimant's group twice wrote to the Chief Constable on 1 and 3 December, expressing the view that the conditions were disproportionate and a violation of their rights under Articles 10 and 11 of the European Convention on Human Rights.[10]The Chief Constable did not alter his view. The grounds of claim state that the claimant and others attended outside the store in breach of the Chief Constable's conditions on 4 December 2004 and were arrested for being in breach of the condition. I am not, however, concerned with the criminal proceedings.[11]On 10 December an application was made to this court for permission to apply for judicial review and for interim relief. On 17 December 2004, Hughes J granted permission but refused to grant interim relief.[12]Since 4 January 2005, the condition has no longer been applicable. The claimant and his colleagues, subject to any conditions of bail imposed on individuals in the criminal proceedings, have been free to demonstrate in Manchester City Centre. They are also free (so far as I know) to demonstrate outside Marks & Spencer's stores elsewhere.[13]The power enabling the Chief Constable to impose conditions of the type contained in the letter stems, as the letter stated, from section 14 of the Public Order Act 1986. The first three subsections provide as follows:
"(1) If the senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, reasonably believes that (a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community; or (b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do, he may give directions imposing on the persons organising or taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him necessary to prevent such disorder, damage, disruption or intimidation. (2) In subsection (1) the senior police officer means (a) in relation to an assembly being held, the most senior in rank of the police officers present at the scene; and (b) in relation to an assembly intended to be held, the chief officer of police. (3) A direction given by a chief officer of police by virtue of subsection (2)(b) shall be given in writing."
[14]The claimant and his colleagues assert rights under both Article 10 and Article 11 of the European Convention on Human Rights. In argument before me no distinction was drawn between the two and it seems to me that they can be taken together. The group, individually and collectively, have the Article 10 right to freedom of expression and the Article II right to freedom of peaceful assembly and freedom of association, subject in each case to the provisos set out in Articles 10 and 11 respectively. Both rights have been held on many occasions, both in domestic courts and by the Strasbourg Court itself, to be of great importance but not absolute. An example is the judgment of the Court of Appeal in The Queen (on the application of Laporte and others) v Chief Constable of Gloucestershire Constabulary and others [2004] EWCA Civ 1639 (8 December 2004). In paragraphs 35 and 36 of the judgment of the court Lord Woolf CJ stated:
"35. The rights to freedom of expression, and assembly and association, which are protected by Articles 10 and 11 of the ECHR respectively, are of the greatest importance to the proper functioning of any democracy. Any intrusion upon the rights, either by the developing common law or by the intervention of statute law, has to be jealously scrutinised. However, as appears from Articles 10 and 11 themselves, the rights for which they provide are not absolute. In the case of both Articles, they are subject to an express qualification contained respectively in Articles 10(2) and 11(2). 36. 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."
[15]Mr Hossein-Bor, on behalf of the claimant, has also drawn my attention to the decision of the European Court of Human Rights in Ärzte für das Leben v Austria (1988) 13 EHRR 204, where the Court said:
"32. A demonstration may annoy or give offence to persons opposed to the ideas of claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate."
The last sentence of the passage I have just quoted is plainly, in my view (and Mr Hossein-Bor did not disagree) to be read in the context of the paragraph as a whole. The right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate by subjecting the first group of demonstrators to the fear that they will be subjected to physical violence by their opponents. The European Court of Human Rights was not saying that the mere exercise of a right to counter-demonstrate, which in any way reduces the effectiveness of the first demonstration, is somehow a breach of the first group's Article 11 rights. There is no domestic or Strasbourg law of "first come first served" in such demonstrations.[16]It is important to note that in section 14 of the 1986 Act there are two alternative bases on which directions may be given under section 14(1). Section 14(1)(b) does not apply in this case. It permits the police to give directions imposing conditions on an assembly if the purpose of the persons organising the assembly is the intimidation of others. That is plainly fault based. It is important to note that it has not been suggested in this case that the claimant and his colleagues had as their purpose the intimidation of others. Section 14(1)(a), on the other hand, is a no fault section. If the senior police officer reasonably believes that the assembly may result in serious public disorder, serious damage to property or serious disruption to the life of the community, he may give appropriate directions. It is not necessary, as I see it, that the senior police officer should form the view that the demonstrators have any intent or wish to cause serious public disorder, serious damage to property or serious disruption to the life of the community themselves, still less that they should have criminal intent.[17]The first ground on which the claimant seeks judicial review is that in the decision letter, which I have read in full, the Chief Constable was under a duty to give reasons for his decision but did not do so. It seems to me that a distinction is to be drawn -- and Mr Hossein-Bor accepted this -- between a direction given under section 14(2((a) and a direction given under section 14(2)(b). A direction under section 14(2)(a) is given on the spot in relation to an assembly "being held" by the most senior in rank of the police officers present at the scene. Mr Hossein-Bor accepted that in those circumstances the duty to give reasons does not arise. If the officer says, "Stand on the other side of the footpath", and the demonstrators ask why, the answer may be, quite lawfully, "Because I say so". But the position is different, in my judgment, under section 14(2)(b). Parliament has drawn a distinction between an on-the-spot decision and a decision "in relation to an assembly intended to be held". In the latter case the direction must be given personally by the chief officer of police and must be given in writing. I consider that a section 14(2)(b) direction must identify which limb of section 14(1) is being relied on -- the "no fault" provision (as I have described it) of section 14(1)(a), or the fault provision of section 14(1)(b). If, as in this case, the direction is being given pursuant to section 14(1)(a), the direction must identify whether the reasonable belief is that the assembly may result in serious public disorder, or serious damage to property, or serious disruption to the life of the community (or all three or only two of them). Here the Chief Constable relied on the first and the third, serious public disorder and serious disruption to the life of the community, but not serious damage to property.[18]The question is: how much further does the chief officer have to go in giving reasons? I do not consider that the chief officer's reasons for forming the belief which he has formed have to be given in great detail, but they must be sufficient to enable the demonstrators to understand why directions are being given, and to enable a court (if the matter goes to court) to assess, once the judge is presented with evidence as to the facts, whether the belief was reasonable or not. It will be remembered that the issue which divided Lord Atkin from his colleagues in Liversidge v Anderson [1942] AC 206 was whether in an action for false imprisonment the defendant Secretary of State should or should not be obliged to give further and better particulars of a paragraph in his pleaded defence asserting that he had reasonable cause to believe that the claimant was a person of hostile associations. Posterity is almost unanimously of the view that Lord Atkin was right and his colleagues were wrong. It seems to me that there is at least an obligation on the Chief Constable to give in outline reasons for forming the belief.[19]In the present case, in my judgment, the requirement was satisfied. It was clear (or in my view should have been clear) to the recipients of the letter that the reason for the Chief Constable's decision was the presence of demonstrations (plural) outside Marks & Spencer on Saturdays and the prospect of serious disruption to the life of the community of Manchester, and perhaps serious public disorder as well, on the very busy Saturdays in the run up to Christmas. (I think I can take judicial knowledge of the fact that city centre shopping areas are extremely busy on Saturdays in the run up to Christmas.)[20]The second issue was that if the Chief Constable had, as I have held, fulfilled his duty to give reasons in giving a direction under section 14(2)(b) for forming a belief that the demonstrations might result in serious public disorder or serious disruption to the life of the community on the Saturdays running up to Christmas, was that belief reasonable, as the section requires? In this context I note that section 14 requires a reasonable belief that the intended public assembly "may" result in the unpleasant consequences outlined in section 14(1)(a), not that it will result in them, nor even that it is more likely than not that it will. Mr Hossein-Bor, however, submitted that even if the Chief Constable might reasonably believe that the intended public assembly might result in some disruption, or some minor disorder, it could not reasonably be thought that serious disorder or serious disruption would occur. In this context he accepted that if on a proper construction of the letter the Chief Constable could take into account the counter-demonstration and not merely the Victory to the Intifada demonstration itself, the Chief Constable would be on stronger ground. In my judgment the Chief Constable could properly take into account both the demonstration and the counter-demonstration and the close proximity of the one to the other in the crowded shopping centre.[21]The test in law as to whether the court should interfere with the Chief Constable's assessment was, in Mr Hossein-Bor's submission, which I accept, conveniently set out in the judgment of Sir Thomas Bingham MR (as he then was) in Regina v Ministry of Defence, Ex parte Smith [1996] QB 517, 554E. The Master of the Rolls accepted as an accurate distillation of the principles laid down by the House of Lords in two previous cases the following submission of Mr David Pannick QC:
"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."
On the other hand, Sir Thomas Bingham said at page 556E:
"While the court must properly defer to the expertise of responsible decision-makers, it must not shrink from its fundamental duty to 'do right to all manner of people....'"
[22]In my judgment, the Chief Constable's assessment of what might result from the holding of both demonstrations in the crowded area outside Marks & Spencer on the Saturdays leading up to Christmas was not irrational, nor unreasonable in the sense set out in Smith, even having regard to the human rights context.[23]The next ground of attack was on proportionality grounds. I have already set out the observations of the Court of Appeal in Laporte and of the Strasbourg Court in Ärzte für das Leben v Austria. I am content to assume that the Chief Constable's decision in this case is reviewable on proportionality grounds. It is important to consider the facts. The restriction was to apply on a limited number of Saturdays in the period before Christmas and immediately afterwards during the Christmas and New Year holidays. An alternative location was offered in Manchester -- not as well-suited for the demonstrators' purpose as the one outside or very close to Marks & Spencer, but nevertheless a well-frequented public place where the demonstrators' views could be put over to the public in Manchester. The ban was neither permanent nor city-wide, much less nationwide. The ban applied both to the demonstrators and to the counter-demonstrators.[24]One issue of fact was raised by paragraph 26 of the claimant's statement in which he says:
".... on 11 December 2004 there was a demonstration by animal rights protesters around the corner from the [Marks & Spencer] store outside a Zara shop. This demonstration was using a stand and posters and was composed of about five people. No action was taken against these protestors by the police ...."
It does not seem to me that the fact of that demonstration being permitted invalidates or renders disproportionate the decision contained in the letter of 25 November. On the contrary, it demonstrates that the police were looking at proposed demonstrations on their facts. It is not clear whether the animal rights demonstration was notified to the police in advance; but even if it was, a demonstration consisting of five people is much smaller than the demonstrations that were organised by the claimant's group. There does not appear to have been a counter-demonstration, and the 11th December episode appears to have been a one-off occasion.[25]Adopting, as Mr Hossein-Bor submitted that I should, the analysis of Dyson LJ in The Queen (on the application of Samaroo) v Secretary of State for the Home Department [2001] EWCA Civ 1139, the Chief Constable has satisfied me that his legitimate aim of preventing serious disruption and disorder in the pedestrian area of Manchester City Centre on the busiest shopping days of the year could not be achieved by means which interfered less with the claimant's Convention rights and given the temporary and limited nature of the measure it did not have disproportionate effect, in my judgment, on those rights.[26]Accordingly, while I am grateful to Mr Hossein-Bor for the very attractive and forceful way in which he put his submissions on behalf of the claimant, I must dismiss this application for judicial review. MR COWAN: My Lord, I am grateful. Could I ask that the claimant be ordered to pay the defendant's costs? Because he is in receipt of public funding could the determination of his ability to pay those costs be postponed? MR JUSTICE BEAN: Mr Hossein-Bor, that is the usual order, is it not? MR HOSSEIN-BOR: Yes, my Lord. MR JUSTICE BEAN: Do you require any order for Community Legal Service Funding assessment? MR HOSSEIN-BOR: Yes, my Lord. MR JUSTICE BEAN: Yes, I make those orders. Thank you both for your very great assistance.

Cited in 2 later judgments