Dulgheriu & Anor v The London Borough Of Ealing [2018] EWHC 1667 (Admin)

“(i) Protesting, namely engaging in any act of approval/disapproval or attempted act of approval/disapproval, with respect to issues related to abortion services, by any means. This includes but is not limited to graphic, verbal or written means, prayer or counselling, (ii) Interfering, or attempting to interfere, whether verbally or physically, with a service user or member of staff, (iii) Intimidating or harassing, or attempting to intimidate or harass, a service user or member of staff, (iv) Recording or photographing a service user or member of staff of the Clinic whilst they are in the Safe Zone, (v) Displaying any text or images relating directly or indirectly to the termination of pregnancy, or (vi) Playing or using amplified music, voice or audio recordings.”

“161. The public spaces protection order … is intended to deal with a particular nuisance or problem in a particular area that is detrimental to the local community’s quality of life, by imposing conditions on the use of that area. The order could also be used to deal with likely future problems. It will replace designated public place orders, gating orders and dog control orders. Examples of where a new order could be used include prohibiting the consumption of alcohol in public parks or ensuring dogs are kept on a leash in children’s play areas. It could also prohibit spitting in certain areas (if the problem were persistent and unreasonable). This is currently covered in local byelaws… 172. The public spaces protection order will be different from the powers it will replace in the following ways: a. It can prohibit a wider range of behaviour, which makes the new order more like the ‘good rule and government byelaws’ made under the Local Government Act 1972, but with a fixed penalty notice available on breach (although some current byelaws do allow for fixed penalty notices to be issued). This is following feedback in the consultation from local authorities that current byelaws are hard to enforce as the only option available to local agencies is to take an individual to court if they fail to comply, which can be costly and time-consuming; b. There is intended to be less central government oversight than with byelaws, and no central government reporting requirements as with designated public place orders. This would reduce bureaucracy; and c. There will be lighter touch consultation requirements to save costs (for example, there is no duty to advertise in local newspapers). This is following feedback in the consultation from local authorities that the current processes for consultation outlined in secondary legislation are costly and time-consuming.” a. It can prohibit a wider range of behaviour, which makes the new order more like the ‘good rule and government byelaws’ made under the Local Government Act 1972, but with a fixed penalty notice available on breach (although some current byelaws do allow for fixed penalty notices to be issued). This is following feedback in the consultation from local authorities that current byelaws are hard to enforce as the only option available to local agencies is to take an individual to court if they fail to comply, which can be costly and time-consuming; b. There is intended to be less central government oversight than with byelaws, and no central government reporting requirements as with designated public place orders. This would reduce bureaucracy; and c. There will be lighter touch consultation requirements to save costs (for example, there is no duty to advertise in local newspapers). This is following feedback in the consultation from local authorities that the current processes for consultation outlined in secondary legislation are costly and time-consuming.”

“Challenging the validity of orders (1) An interested person may apply to the High Court to question the validity of— (a) a public spaces protection order, or (b) a variation of a public spaces protection order. “Interested person” means an individual who lives in the restricted area or who regularly works in or visits that area. (2) The grounds on which an application under this section may be made are— (a) that the local authority did not have power to make the order or variation, or to include particular prohibitions or requirements imposed by the order (or by the order as varied); (b) that a requirement under this Chapter was not complied with in relation to the order or variation. (3) An application under this section must be made within the period of 6 weeks beginning with the date on which the order or variation is made. (4) On an application under this section the High Court may by order suspend the operation of the order or variation, or any of the prohibitions or requirements imposed by the order (or by the order as varied), until the final determination of the proceedings. (5) If on an application under this section the High Court is satisfied that— (a) the local authority did not have power to make the order or variation, or to include particular prohibitions or requirements imposed by the order (or by the order as varied), or (b) the interests of the applicant have been substantially prejudiced by a failure to comply with a requirement under this Chapter, the Court may quash the order or variation, or any of the prohibitions or requirements imposed by the order (or by the order as varied). (6) A public spaces protection order, or any of the prohibitions or requirements imposed by the order (or by the order as varied), may be suspended under subsection (4) or quashed under subsection (5)— (a) generally, or (b) so far as necessary for the protection of the interests of the applicant. (7) An interested person may not challenge the validity of a public spaces protection order, or of a variation of a public spaces protection order, in any legal proceedings (either before or after it is made) except— (a) under this section, or (b) under subsection (3) of section 67 (where the interested person is charged with an offence under that section).” (a) a public spaces protection order, or (b) a variation of a public spaces protection order. (a) that the local authority did not have power to make the order or variation, or to include particular prohibitions or requirements imposed by the order (or by the order as varied); (b) that a requirement under this Chapter was not complied with in relation to the order or variation. (a) the local authority did not have power to make the order or variation, or to include particular prohibitions or requirements imposed by the order (or by the order as varied), or (b) the interests of the applicant have been substantially prejudiced by a failure to comply with a requirement under this Chapter, (a) generally, or (b) so far as necessary for the protection of the interests of the applicant. (a) under this section, or (b) under subsection (3) of section 67 (where the interested person is charged with an offence under that section).”

“36 It was common ground between the parties that, where the question before a court concerns whether a decision interferes with a right under the ECHR and, if so, whether it is proportionate and therefore justified, it is necessary for the court to conduct a high-intensity review of the decision. The court must make its own assessment of the factors considered by the decision-maker. The need to do this involves considering the appropriate weight to give them and thus the relative weight accorded to the interests and considerations by the decision-maker. The scope of review thus goes further than the traditional grounds of judicial review: see e.g. R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at [27]. 37 There are also clear statements that it is the function of the court to determine whether or not a decision of a public authority is incompatible with ECHR rights. In R (SB) v Governors of Denbigh High School [2006] UKHL 15 at [30], Lord Bingham stated that “proportionality must be judged objectively by the court”

“It requires the court to seek first whether the action pursues a legitimate aim (i.e. one of the designated reasons to depart from a Convention right, such as national security). It then asks whether the measure employed is capable of achieving that aim, namely, whether there is a “rational connection” between the measures and the aim. Thirdly it asks whether a less restrictive alternative could have been employed. Even if these three hurdles are achieved, however…there is a fourth step which the decision-maker has to climb, namely, to demonstrate that the measure must be “necessary” which requires the courts to insist that the measure genuinely addresses a “pressing social need”, and is not just desirable or reasonable, by the standards of a democratic society.”

“25 The Act therefore envisages use of PSPOs to curb activities which it is possible that not everyone would view as detrimentally affecting their quality of life. Taken together with the absence of any further definition of the key terms "activities" or "detrimental" this strongly points to local authorities being given a wide discretion to decide what behaviours are troublesome and require to be addressed within their local area. This requires local knowledge, taking into account conditions on the ground, exercising judgment (i) about what activities need to be covered by a PSPO and (ii) what prohibitions or restrictions are appropriate for inclusion in the order. There may be strong feelings locally about whether any particular activity does or does not have a detrimental effect, in such cases a local authority will need to weigh up competing interests. Deciding whether, and if so what, controls on certain behaviours or activities may be necessary within the area covered by a local authority is thus the very essence of local politics. 26 It is important to bear in mind, however, as Mr Porter emphasised, that the behaviours which PSPOs are intended to target are those which are seriously anti-social, not ones that are simply annoying. He referred me in this respect to the following passage in the Home Office guidance from 2017: “Our aim in reforming the anti-social behaviour powers is to give the police, councils and others more effective means of protecting victims, not to penalise particular behaviours. Frontline professionals must use the powers in [the 2014 Act] responsibly and proportionately, and only where necessary to protect the public.” “Our aim in reforming the anti-social behaviour powers is to give the police, councils and others more effective means of protecting victims, not to penalise particular behaviours. Frontline professionals must use the powers in [the 2014 Act] responsibly and proportionately, and only where necessary to protect the public.”

“…any effect identified must be objectively detrimental – i.e. such that it would be detrimental to the quality of life of a reasonable person. Otherwise it would not be possible to comply with s59(3)(b) which stipulates that the effect of the activities must be (or be likely to be) “such as to make the activities unreasonable”

“There may be strong feelings locally about whether any particular activity does or does not have a detrimental effect, in such cases a local authority will need to weigh up competing interests. Deciding whether, and if so what, controls on certain behaviours or activities may be necessary within the area covered by a local authority is thus the very essence of local politics.”

“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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.”

“The primary purpose of Article 8 is to protect against arbitrary interferences with private and family life, home, and correspondence. This obligation is of the classic negative kind, described by the Court as the essential object of Article 8 (Kroon and Others v. the Netherlands, § 31). However, member States also have positive obligations to ensure that Article 8 rights are respected even as between private parties. In particular, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.”

“57. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. That Article also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX, with further references). 58. In P.G. and J.H. (§ 57) the Court further noted as follows: “There are a number of elements relevant to a consideration of whether a person's private life is concerned in measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character. Private life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain.””

“The Court reiterates that the notion of private life is a broad concept, not susceptible to exhaustive definition. It extends to aspects relating to personal identity, such as a person’s name, photograph, or physical and moral integrity. This concept also includes the right to live privately, away from unwanted attention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003‑IX (extracts)). The guarantee afforded by Article 8 of the Convention in this regard is primarily intended to ensure the development, without outside interference, of the personality of each individual in his or her relations with other human beings. There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life.”

“36. As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.”

““Article 9: Right to Freedom of Thought, Conscience and Religion 2.2.8 Article 9 of the ECHR protects a person’s right to hold both religious and non-religious beliefs and protects a person’s right to choose or change their religion or beliefs. The PSPO is not seeking to interfere with this right and it does not seek to prohibit any activities that affect a person’s right to hold religious or non-religious views. 2.2.9 Article 9 additionally protects a person’s right to manifest their beliefs in worship, teaching, practice or observance. For example the right to talk and preach about their religion or beliefs and to take part in practices associated with those beliefs. The right to manifest one’s religion or beliefs is a qualified right, which means it can be interfered with in certain situations, for example, to protect the rights of others. 2.2.10 The Council is aware that some of the represented groups believe that their activities are part of their right to manifest their religion or beliefs. The Council should be advised that these are important rights and that it should be reluctant to interfere with those rights. Where the Council does interfere it must ensure that any interference is in accordance with the law (this is addressed later in this report), and is necessary (also addressed more fully later in this report) to ensure the protection of the rights of others. The proposed PSPO would interfere with these Article 9 rights. This is a delicate balancing exercise in which any interference with the right must be in accordance with the law and necessary to protect the rights of others. Both of these considerations are addressed more fully later in this section. Article 10 Right to Freedom of Expression 2.2.11 Article 10 of the ECHR protects the right of everyone to freedom of expression. This includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority. Article 10 is a qualified right, which means it can be interfered with in certain situations, for example, to protect the rights of others. 2.2.12 Again, this is an important fundamental right in any democracy. It includes the entitlement to express views that others might disagree with, find distasteful or even abhorrent. Article 10 provides a protection to express those views and is an important part of a free and democratic society. 2.2.13 It is important to consider that individuals from Pro-Life represented groups have stated they attend the Clinic to impart information to women accessing services and that the proposed PSPO will interfere with their Article 10 rights. It should also be noted that the PSPO will interfere with the Article 10 rights of Pro-Choice represented groups. In deciding whether to implement a PSPO, therefore, the Council will have to balance the rights of pregnant women to access health services free from fear of intimidation, harassment or distress and with an appropriate level of dignity and privacy against the Article 10 rights of Pro-Life and Pro-Choice represented groups to impart information and ideas relating to the termination of pregnancy. This is a delicate exercise in which any interference with the right must be in accordance with the law and necessary to protect the rights of others. Both of these considerations are addressed more fully later in this section. Article 11 Right to Freedom of Assembly and Association 2.2.14 Article 11 of the ECHR protects everyone’s right to freedom of peaceful assembly and to freedom of association with others. Article 11 is again a qualified right, meaning it can be interfered with in certain situations, for example, to protect the rights of others. 2.2.15 The right to freedom of assembly includes peaceful protests and demonstrations of the kind seen outside the Clinic. The PSPO will interfere with the Article 11 rights of both Pro-Life and Pro-Choice represented groups in the locality of the Clinic. The Council therefore needs to balance the rights of pregnant women to access health services free from fear of intimidation, harassment or distress against the Article 11 rights of Pro-Life and Pro-Choice groups. This is a delicate balancing exercise in which any interference with the right must be in accordance with the law and necessary to protect the rights of others. Both of these considerations are addressed more fully later in this section. Article 14 Right to Freedom from Discrimination 2.2.16 Article 14 of the ECHR provides ‘The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ It is therefore not a free-standing Article but rather one which relates to the engagement of other Articles, and to discriminate in the manner in which people are entitled to enjoy those rights. 2.2.17 Article 14 needs to be considered by the Council, given the proposed PSPO targets the activities of groups which identify with a specific religion and belief (namely Christianity).”

“32. In cases which require the right to respect for private life to be balanced against the right to freedom of expression, the Court considers that the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the news report, or under Article 10 by the publisher. Indeed, as a matter of principle these rights deserve equal respect (Couderc and Hachette Filipacchi Associés v. France [GC], § 91).”

“2.2.26 Members are also asked to note the Options Assessment, which formed part of the report to Cabinet and which is reproduced at Appendix 6 for ease. Officers have had regard to a broad range of powers to deal with the activities that are having a detrimental effect on the quality of life of those in the locality. Careful consideration has been given to whether there are alternative means of achieving a reduction or elimination of the detrimental effect on the quality of life of those in the locality. Each option has its own advantages and disadvantages, which will not be repeated here. 2.2.27 The proposed PSPO includes the provision of a designated area for use by the represented groups, which is intended to protect and facilitate the rights of those groups. The creation of the area is addressed more fully in Section 5. 2.2.28 The main issue for the Council is whether the making of the proposed order is a proportionate means of achieving a reduction/elimination of the detrimental effect on the quality of life of those in the locality. Enforcement options which attach to an individual are not thought to be appropriate here as the people present outside the Clinic differ from day to day. The best fit is thought to be a solution which attaches to the space as opposed to an individual. If Members are of the view that other measures are more suited, or ought to be tried first, they should not approve the making of the proposed order. However, Officer advice to Members is that the interference with ECHR rights is in accordance with the law and necessary to protect the rights and freedoms of others.”

“52. The fundamental principles concerning the question of whether an interference with freedom of expression is “necessary in a democratic society” are well established in the Court’s case-law and have recently been summarised as follows (see Delfi AS v. Estonia [GC], no. 64569/09, § 131, 16 June 2015 with further references): (i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ... (ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10. (iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ... 53. Another principle that has consistently emphasised in the Court’s case-law is that there is little scope under Article 10 of the Convention for restrictions on political expressions or on debate on questions of public interest (see, among other authorities, Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996‑V; Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999‑IV; and Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 102, ECHR 2013 (extracts)). 54. The Court further reiterates that the right to protection of reputation is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009; Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012 and Delfi AS, cited above, § 137). 55. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; Axel Springer AG, cited above, § 84 and Delfi AS, cited above, § 138). 56. In cases such as the present one the Court considers that the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the person who has made the statement in dispute or under Article 8 of the Convention by the person who was the subject of that statement. Indeed, as a matter of principle these rights deserve equal respect. Accordingly, the margin of appreciation should in principle be the same in both cases (compare Axel Springer AG, cited above, § 88 with further references). 57. Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011; Axel Springer AG, cited above, § 88; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 66, ECHR 2012 (extracts)).”

“62. While the Court furthermore accepts the domestic courts’ position, according to which the applicant’s campaign had been directly aimed at the two doctors, it also notes that the applicant’s choice of presenting his arguments in a personalised manner, by disseminating leaflets indicating the doctors’ names and professional address in the immediate vicinity of the day clinic, enhanced the effectiveness of his campaign. The Court also points out that the applicant’s campaign contributed to a highly controversial debate of public interest. There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake (see A, B and C v. Ireland [GC], no. 25579/05, § 233, ECHR 2010)… 64. Having regard to the foregoing considerations and, in particular, the fact that the applicant’s statement, which was at least not in contradiction with the legal situation with regard to abortion in Germany, contributed to a highly controversial debate of public interest, the Court, in view of the special degree of protection afforded to expressions of opinion which were made in the course of a debate on matters of public interest (see Tierbefreier e.V. v. Germany, no. 45192/09, § 51, 16 January 2014 with further references) and despite the margin of appreciation enjoyed by the Contracting States, comes to the conclusion that the domestic courts failed to strike a fair balance between the applicant’s right to freedom of expression and the doctors’ personality rights. 65. There has therefore been a breach of Article 10 of the Convention in respect of the order to desist from further disseminating the leaflets.”

“‘Is the interference ‘necessary in a democratic society’? 2.2.19 Members are invited to have regard to the content of the relevant rights as summarised above. They are reminded that all of the rights highlighted, but Articles 10 and 11 in particular, are important rights in a free and democratic society. This has been highlighted by a number of the responses to the consultation. 2.2.20 If the Council wishes to interfere with these rights the interference must be ‘necessary’ in order to achieve a stated aim, here the aim that the Council is seeking to achieve is the protection of the rights and freedoms of others. Those rights and freedoms include the freedom to access health care services without impediment. Members have to consider whether this objective is sufficiently important to justify limiting fundamental rights. 2.2.21 ‘Necessary’ means that the interference must be connected to achieving the stated objective and must not interfere to any greater extent than is required in order to achieve it. In other words the PSPO must strike a fair balance between the competing rights of the represented groups and those affected by their activities. 2.2.22 The ECHR rights have been firmly in mind during the formulation of proposed order. In addition, these considerations have been kept under review throughout the process of consultation and drafting. 2.2.23 The principle issue identified by the evidence is the presence of the represented groups at the entry point to the Clinic and their desire to engage with the service users and staff. The evidence base suggests that the location of the groups, independently of what they do whilst they are there, is a problem in and of itself because the service users are sometimes impeded from entering the clinic, feel as though they are being watched or ‘judged’, are approached and spoken to about the procedure they are considering having or have already undergone, are given leaflets and ‘boy’ and ‘girl’ colour-coded rosary beads, are called ‘Mum’, partners, and relatives supporting service users are also approached and spoken to. 2.2.24 Members are reminded of the evidence base (summarised at Section 4 of this report and Appendix 3), which suggests that there is a detrimental effect on the quality of life of other persons who are living in or otherwise visiting the locality. Members are advised that the suggested prohibitions are directed at reducing the identified detrimental effect. 2.2.25 Balanced against this, Members should be aware that the represented groups say that their presence (of itself) should not be problematic, nor should the handing out of leaflets or attempting to speak to the service users/staff. They deny filming, shouting at or following Clinic service users or their partners, relatives and friends; they deny calling Clinic users ‘murderers’ or telling clinic users that they will be ‘haunted’.”