Chief Constable of Sussex, Ex Parte International Trader's Ferry Ltd, R v. [1998] UKHL 40

House of Lords

Between

Chief Constable of Sussex, Ex Parte International Trader's Ferry Ltd, R v.Appellant

Before

Lord Slynn of Hadley

Lord Nolan

Lord Hoffmann

Lord Cooke of Thorndon

Lord Hope of Craighead

Date 11 November 1998

LORD COOKE OF THORNDON

My Lords,

The Factual Background

International Trader's Ferry Ltd. ("I.T.F.") was incorporated on 17 November 1994 by a group consisting mainly of farmers and hauliers for the purpose of carrying across the Channel livestock, mainly the property of members of the company. The group took this step since the major cross-Channel ferry operators gave up this business because of the difficulties caused by those protesting against the transport of live animals to the Continent.

I.T.F. chose Shoreham as being the most convenient port because of the areas from which the animals came and to which they were to go. They contracted for the provision by the Shoreham Port Authority of a berth for a roll-on roll-off ferry and on 6 December 1994 concluded a time charter for a vessel, the "Northern Cruiser."

The company realised from the beginning that it was likely to be met by protests and demonstrators from those opposing the trade. Sensibly it kept the police informed of its plans and a number of meetings were held from 11 November 1994 between the company and the police. The police made it clear that their task was to maintain public order and to deal with criminal offences or the threat of them. It is plain from the minutes of the meetings, from correspondence and from the affidavits filed in the course of these proceedings that the police recognised the right of I.T.F. to trade lawfully, the right of the demonstrators to protest peacefully and the potential for conflict between the two interests which opened up the risk of danger to all those involved. "The public safety identified here is for the demonstrators and the lorry drivers and their cargo and, as importantly, the police officers on duty" (letter from Assistant Chief Constable Lake to I.T.F. dated 26 January 1995).

To this end the police set up three operations:

The first sailing was deferred until 2 January 1995 when the problems were immediate and serious. The police had 74 officers at the port to protect the lorries: they were met by between 500 and 600 demonstrators, some of whom were violent to drivers and to the police, damaging the vehicles; others blocked the road by sitting down. Accordingly on 2 and 3 January 1995 the lorries could not get through. Between 4 and 14 January the average number of demonstrators was the same as on 2 January and the Chief Constable arranged for some 1,125 officers to be present for each sailing. This very substantial number was only made possible by the Chief Constable obtaining assistance from other police forces which had to be paid for out of Sussex Police budgeted funds. Thus just for these few days the sum of £1,252,000 had to be paid in addition to the cost of his own men on duty at the sailings. During the same period 67 demonstrators were arrested.

It is hardly surprising that on 6 January 1995 the notes of a meeting between the police and I.T.F. should record that Assistant Chief Constable Childs stated "that the current level of policing for operation Ferndown was not easily sustainable." I.T.F. insisted, however, that they intended to export every day for the 50 days remaining of the charter, though the police had already made it clear that full policing could not be available on Saturdays and Sundays because of other commitments.

Fortunately the number of protestors fell from 14 January to between 100 and 150 on Mondays to Thursdays and round about 350 on Fridays. The number of police engaged on operation Taunton in policing the port remained at 24 during the week and 30 on Sundays.

In addition to dealing with the demonstrators there were other specific problems for the police caused by cancellations after the police had been arranged for duty, or when sailings were cancelled because of bad weather, or when I.T.F. sought to give short notice of a sailing and when it was difficult or not possible for police to be made available, or when I.T.F. wished to sail on a Saturday morning. The police at a meeting on 27 January 1995 were asked to look after more frequent sailings, including weekend sailings, and that request was repeated by letter of 17 March 1995, but the police made it clear that weekend sailings could not be accommodated.

I.T.F.'s sailings were also affected by a stop notice issued by the local planning authority between 1 and 8 February which the High Court refused to set aside. Thereafter a different berth was found but between 8 and 13 March activities were suspended by the Harbour Master until the High Court intervened so that operations were resumed.

On 10 April 1995 the Chief Constable, having consulted his colleagues in the command team, wrote to I.T.F.:

In reply on 13 January 1995 I.T.F. said that they had agreed to operate on a five day week, with no operations at the weekend or in the evenings. Having entered into a new time charter, they would be likely to be put out of business if they were limited to two days a week. They asked in the light of the judgment of the Divisional Court in Reg. v. Coventry City Council, Ex parte Phoenix Aviation [1995] 3 All E.R. 37 that the decision be not implemented before 9 May so that discussions could take place. The police and I.T.F. did meet on 20 April. It was agreed that I.T.F. could sail on the four days between 24 and 27 April but I.T.F. insisted that it would also sail on 28 April though it was negotiating with the Dover Port Authority to use the "Northern Cruiser" from Dover. By letter dated 24 April Assistant Chief Constable Lake confirmed that the decision of 10 April stood and added that the judgment in the Coventry case did not cause the police to change their decision:

Although they had used up four days for the fortnight from 24 April, I.T.F. decided to sail again on 28 April and they confirmed this to the police on 27 April. Since 28 April was a Friday it was in two respects contrary to what I.T.F. had been told the police could do. By 6.30 a.m. on that day, there were 150-200 protestors at the port and so I.T.F. decided to ship only one lorry rather than the seven to ten provided for in the arrangements. By 8.35 a.m. there were between 250 and 350 demonstrators. Thirty police officers were present, fifty more were available ten minutes away and twenty two were available within half-an-hour. Because of the number and hostile attitude of the crowd ("here come the Nazi scum"; the windscreen of a Harbour Authority officer's car was smashed), the one lorry was served with a notice warning the driver that because the Chief Inspector had "reason to believe that breaches of the peace will occur if you continue to the port. . . I have a power and a duty at common law to prevent breaches of the peace. I therefore ask you to turn back. If you refuse to do so and insist on continuing on your journey you will be obstructing a police officer in the execution of his duty and therefore liable for arrest. As a result of what I have told you, will you please turn your vehicle back and leave the area." The vehicle did so but no arrests were made, it apparently not being possible to identify the persons involved in attacking the car.

From 1 May I.T.F. sailed twice a week, though on 6 and 14 June, because only two lorries were available, the police only provided a limited number of officers. The vehicles were, however, able to reach the vessel. From mid-June 1995 I.T.F. sailed from Dover with regular sailings, including from October 1995 a larger vessel chartered by I.T.F., though during this period they encountered sharp competition from another trader in Dover which made their business less profitable. Because of the B.S.E. crisis regular sailings ceased on 27 March 1996 and I.T.F. went out of business in mid-June 1996.

Although the arrangements at Dover enabled I.T.F. to operate, and apparently to transport all that they wished to transport, I.T.F. has always said that Dover was less satisfactory since it meant a longer road journey for farmers from the West Country with more stops and lairage provision and less security in the use of a berth. In addition I.T.F. lacked office facilities.

I.T.F. applied to quash the Chief Constable's decisions of 10 April 1995 to provide no policing, save on two consecutive days a week or on four days consecutively a fortnight, excluding Fridays, weekends and bank holidays, and also his decision of 24 April 1995 refusing to change that decision or to review its implementation. I.T.F. also claimed damages for breach of Articles 5 and 34 of the EC Treaty.

The Divisional Court

In the Divisional Court [1996] Q.B. 197 these decisions were said by I.T.F. in the first place to be so unreasonable as to justify the court quashing them ( Associated Provisional Picture Houses Ltd. v. Wednesbury Corporation

[1948] 1 KB 223

). The Divisional Court firmly rejected this contention. It was in their view for the Chief Constable to decide on the disposition of his forces and the use of his resources. He was fully entitled to take into account the size of his force, the need to perform other police functions and his budget. In view of the Home Office's practice in the provision of further finance he had not acted unreasonably in not asking the Police Authority to seek further funds from the Home Office. Having set out all the arguments, the Court concluded, at p. 211:

"We are quite unable to say that this Chief Constable's decisions, taken as a whole, were such that as a matter of domestic law we can intervene."

In the second place reliance was placed by I.T.F. on Article 34(1) of the EC Treaty (O.J. 1992 No. C. 224, p. 6-79) in that the decisions amounted to a quantitative restriction on exports. On the basis, as was common ground, that the Chief Constable is an "emanation of the State" and that an individual decision may constitute a "measure" for the purpose of the Article, the Court ruled that, since the Chief Constable was only concerned with exports, his action amounted to a prima facia breach of Article 34. They held, moreover, that civil disturbances do not provide a defence under Article 36 of the Treaty "provided that the resources are available to deal with such disturbances, and the cost of so doing is not disproportionate." Here the Chief Constable had not proved that the resources available to him were inadequate, within the principle of proportionality, to police Shoreham "at a level which would enable the lorries to get through to the port on a regular basis." He had not asked the Police Authority to seek funds from the Home Office. Hence his two decisions fell to be quashed as being in breach of Article 34. The Court recognised that if a request had been made and refused then "in proceedings differently constituted to the present proceedings" different considerations might arise.

The Court of Appeal

The Court of Appeal [1998] Q.B. 477 took an equally firm view of I.T.F.'s contention that these decisions were Wednesbury unreasonable. The Chief Constable's conclusions(1) that his available resources were not such as to enable him to police his area and to escort lorries on five days a week and

(2) that he had no realistic prospect of obtaining significant extra resources "can [not] possibly be regarded as so unreasonable as to enable a Court to interfere." "To describe those proposals [in the letters of 10 and 24 April 1995] as an abrogation of responsibility, or as a decision by the Chief Constable not to enforce the law, seems to me to be a travesty." ( Per Kennedy L.J., at p. 492, giving the judgment of the Court.) When dealing with Community law the Court of Appeal proceeded on the assumption that there had been a contravention of Article 34. As to Article 36 they attached importance to the fact that the Chief Constable was himself acting to preserve law and order and was not attempting to reduce exports, and to the fact that it was abundantly clear in March and April 1995 that an approach for further financial assistance would not have been met with a favourable response. The allocation of resources available to the Chief Constable was for him and the course he took was well within his margin of appreciation, not least because of the need to balance serious competing claims. It was unreal and unfair to treat the Chief Constable as having all the resources of the State available to him before he could justify what he had done. I.T.F.'s application was, therefore, dismissed.

The arguments before the House

The case has also been argued before your Lordships as a matter of domestic law and as a matter of Community law. Although the two have been treated separately it is recognised that there is an overlap and that if Articles 34 and 36 apply and can be relied on by I.T.F. in these proceedings effect must be given to them.

Domestic Law

As a matter of domestic law I.T.F.'s case in essence is that the Chief Constable had an overriding duty to make it possible for lawful activities to be carried out and that he could not lawfully allow the illegal acts of violent demonstrators to deflect him from that duty. Alternatively if he had a discretion as to how he dealt with the problem then he failed adequately to take into account relevant matters and gave too much weight to other matters; in any event his decisions in the letters of 10 and 24 April 1995 were those to which no Chief Constable could reasonably come.

My Lords,

it is clear that, although the duty to keep the peace is that of the Chief Constable, what he does may be reviewed by the courts; if his act is clearly unlawful it will be quashed and he may be ordered to do something else; he may have to pay damages.

As I see it, however, a right of the kind claimed--here to trade lawfully--is not an absolute right by which the Chief Constable owes a duty to protect the trader at whatever cost and in whatever way necessary, any more than is the right to protest lawfully an absolute right owed by the Chief Constable to protestors which he must protect at whatever cost. If, for example, the police find a crowd of 500 demonstrators, half of whom are armed with offensive weapons and are clearly aggressive and half of whom are intending to protest peacefully, but the crowd is completely mixed, and the police reasonably conclude that the only way to prevent immediate breaches of the peace is to move the whole crowd away it does not seem to me that the peaceful members could say that the Chief Constable is in breach of his duty to them by moving the whole crowd.

In a situation where there are conflicting rights and the police have a duty to uphold the law the police may, in deciding what to do, have to balance a number of factors, not the least of which is the likelihood of a serious breach of the peace being committed. That balancing involves the exercise of judgment and discretion.

The courts have long made it clear that, though they will readily review the way in which decisions are reached, they will respect the margin of appreciation or discretion which a Chief Constable has. He knows through his officers the local situation, the availability of officers and his financial resources, the other demands on the police in the area at different times. ( Chief Constable of the North Wales Police v. Evans

[1982] 1 WLR 1155

, 1174). Where the use of limited resources has to be decided the undesirability of the court stepping in too quickly was made very clear by Sir Thomas Bingham M.R. in Reg. v. Cambridge Health District Health Authority, Ex parte B

[1995] 1 WLR 898

, 906 and underlined by Kennedy L.J. in the present case. In the former the Master of the Rolls said in relation to the decisions which have to be taken by Health Authorities "difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make." The facts here are different and the statutory obligations are different but mutatis mutandis the principle is relevant to the present case. It seems to me that it is the right principle and that, whilst the courts must be astute to condemn illegal acts by the police yet, as was said by Balcombe L.J. in Harris v. Sheffield United Football Club Ltd. [1988] Q.B. 77, 95:

Here although on occasions lorries got through with few demonstrators and a small number of police, it is plain that, particularly in the early months, there was no possibility of the lorries getting through without damage when large numbers of demonstrators were present. It seems clear that a large number of demonstrators genuinely objected on moral or physical grounds to these animals being taken to be dealt with on the Continent even if they were carried in an acceptable way; it seems also that many of the demonstrators were likely to have acted, and to have intended to act, only in a peaceful and lawful way. There remained a hard core of people prepared to be, and who in fact were, violent to the lorries, the drivers and the police. The Chief Constable provided a large number of men at great cost in January but in my view he was entitled to consider whether in all the circumstances the use of so many officers and such costs were justified on a continuing basis even without imposing a total ban on shipment. On the evidence it is clear that in coming to his decisions the Chief Constable took into account in the present case(a) the number of men available to him,

(b) his financial resources to provide police officers,

(d) the risk of injury during the demonstration to the drivers, to the police and to others; he took into account no less the competing rights of I.T.F. to trade and of those who objected to the trade peacefully to demonstrate.

This approach, if there was evidence reasonably to support it, was in my opinion open to him. It is said by I.T.F., however, that in a number of respects his decisions on 10 and 24 April were in the circumstances so wholly unreasonable that the court should interfere. As to the availability of officers and finance the Chief Constable emphasises that the first problem was that of providing officers. It seems obvious that if the normal strength was in the region of 2,929 officers for the whole police area then to use in the region of 1,125 of these officers for the supervision of these lorries was not realistically possible. If, therefore, it was necessary to provide for other police activities in the police area this number could not regularly be provided by the Chief Constable himself from his normal establishment. But it is said that the arrangements for mutual aid (Police Act 1964 section 14) under which he could ask for help would have alleviated the problem. Temporarily that may be so but that aid was intended to be for short term emergencies and it could not be assumed that a sufficient number of officers could always be available. Moreover the cost of ten support units (250 officers) was in any event said to be £14,040 more expensive per day than the use of the same number of his own officers. Both of these factors pointed to the need to reduce the number of officers supervising the lorries entering the port which was what the Chief Constable did in his decisions under challenge.

The Chief Constable also considered that the cost to 14 January (including £1.2m for mutual aid in addition to the cost of providing officers from his own area) which extrapolated for the whole year on the same basis would have cost something in the region of £6.5m was beyond his budget. He did not ask the Police Authority to apply to the Home Secretary for more cash because he did not think that he would get it. Both the Divisional Court and the Court of Appeal accepted, for the purposes of I.T.F.'s claim that his actions were unreasonable in a Wednesbury sense, that the Chief Constable could not have provided the cost from his own finance resources and that he could not be said to have acted unreasonably in not asking the Police Authority (who alone could have done so) to ask the Home Secretary to provide special payments.

I would accept the finding of the Divisional Court and the Court of Appeal on these points. The existing resources were clearly not adequate; the Home Office policy or practice as to further payments was made clear. On 12 January 1995 at a meeting between the Home Office and the Treasurer of the Police Authority and the Chief Constable, the Home Office said that it was not the funder of last resort and that the County Council ought to be able to find the difference from their own balances. "Only in extremely rare cases did the Home Office give aid via the supplementary vote mechanism." (The Chief Constable's affidavit paragraph 6). The Home Secretary said in a statement on 16 January 1995 that the Government "had paid its full part in ensuring that Sussex Police are more than adequately funded." Any application for special payment "will be considered against the usual, stringent criteria. The force must be able to show that the expenditure was unforseen, exceptional and threatens the efficiency of the force. There is no reason to believe that this is the case." In a statement dated 6 July 1995, on the last day of the hearing before Divisional Court, Mrs. Clarkson of the Home Office repeated this but added that there was "no fixed figure for the expenditure which the Home Secretary would have expected the Police Authority to have incurred before making an application for special payments. . . By virtue of the fact that special payments are only made in unforseen circumstances police authorities should not rely on the prospects of special payments when planning their budget." The Police Authority asked on 31 July 1995 if the Home Office would change its approach in the light of the Divisional Court's judgment but was told that the events at Shoreham were not exceptional and that they should have been allowed for in the budget for 1995/1996.

The Treasurer and the Chief Constable were given the impression that special payments were very unlikely. On 23 March 1995 the Police Authority decided not to claim special assistance from the Home Office but drew the matter to the latter's attention in case the new Sussex Police Authority due to take over from 1 April 1995 decided to seek assistance.

Moreover the Chief Constable knew or believed that from 1 April 1995 the Police Authority had been subject to a Standard Spending Assessment prescribed by Central Government and that if the Police Authority exceeded that quota the same capping provisions that applied to other local authorities will apply to the Police Authority" (affidavit paragraph 109).

The 1994/1995 budget of the Police Authority was exceeded by £3.45m. which was met as to 49 per cent. by the councils and as to 51 per cent. by the Home Office. The budget for 1995/1996 did include £7.25m. for "reserves" which covered many contingencies including an amount considered to be "appropriate and necessary" for Shoreham. Total revenue reserves in the balance sheet at 31 March 1996 were in fact shown at £13.133m. but this included moneys earmarked for information technology, for insurance and for capital expenditure as well as for operational reserves.

If this matter is looked at ex post facto, it may be that some more money could have been squeezed from elsewhere to provide extra policing at Shoreham. If the Chief Constable had had an absolute duty to protect I.T.F. at whatever cost then this might have been a crucial factor. But that is the wrong approach on this application. The question is what the Chief Constable reasonably believed at the time and whether he was entitled to proceed on the monies actually available to him as allocated by the Police Authority in its budget and in the light of all other expenditure to be incurred by the Authority.

The Police Authority were well aware of the problem, and of the requirements of other police activities. The Chief Constable was entitled to take the view that the amount of money available was not sufficient to cover the cost of continuing the heavy police coverage at Shoreham. How he could have found and trained that number of extra men at short notice has not in any event been explained by I.T.F.

The Chief Constable gave evidence of the areas where other policing was required in accordance with the Home Secretary's and the Police Authority's policing objectives. It was his view that although the 1994 figures in some cases were down on the statistics for 1993, the 1995 figures were an increase on 1994 both in relation to overall crime, and to residential burglary, to crimes of violence and to vehicle crime. He attributed in part these increases to the "disproportionately high level of policing which was allocated to the port between January and March 1995." (Affidavit paragraph 75). There were fewer searches of premises to investigate crime (though not as few as he thought as the time) and the crime strategy in his view was adversely affected in other areas such as traffic control and training, in the maintenance of public order and in community assistance. In all these areas there was an adverse effect which he attributed in part to the police services he provided at Shoreham. Whether the precise figure was accurate does not matter; it is plain that his assessment was that policing in other areas was affected and that there was evidence to support this. It is not possible to say that this is something that he could not reasonably have taken into account in deciding the level of policing at Shoreham.

I.T.F. contends that the Chief Constable did not sufficiently take into account the effect on I.T.F.'s business of limiting protection by the police to two days a week. The Chief Constable was, however, frequently told of this and of the risk that they would go out of business. There was nothing to show that he regarded the facts as irrelevant; he was firmly aware of them and of I.T.F.'s right to carry on lawful trading. He knew, moreover, that, as happened in fact, it was possible, even if less convenient, for I.T.F. to transport some animals through Dover even though Dover at one stage was not open for this traffic. It was also possible that on some other days vehicles could get through without extensive police protection. Moreover, though the adverse effect on I.T.F.'s trade is an important consideration it is only one to be balanced against all the other factors in arriving at the Chief Constable's decision.

I.T.F. has relied on the judgment of the Divisional Court in Reg. v. Coventry City Council, Ex parte Phoenix Aviation [1995] 3 All E.R. 37. There a local authority (Coventry), the operator of an airport, suspended flights on aircraft transporting livestock; a harbour authority (Dover) refused to allow cross-Channel services for the export of live animals; in the third case a local authority (Plymouth) challenged the decision of a statutory body operating a dock not to ban the export of live animals. In all three cases what was relied on to justify imposing a ban was the activity and size of the disruptive protests. The Divisional Court held that none of the bans was lawful under the body's statutory power but each was, or would have been, unlawful. The authority had given in to unlawful threats. "None of them, it appears, gave the least thought to the awesome implications for the rule of law of doing what they propose." This was contrary to "the thread [which] runs consistently throughout all the case law; the recognition that public authorities must beware of surrendering to the dictates of unlawful pressure groups." (Simon Brown L.J., at p. 62, with whom Popplewell J. agreed.)

These cases are it seems to me quite different from the present where there is no question of a total ban and where it is plain that the Chief Constable was seeking to do what he could to uphold the rule of law within the limit of his resources. Whether that was sufficient is one of the issues in this case but the criticism of the authorities in Coventry does does not find its place in this case. Indeed the conduct of the police in those cases was not impugned. In reply to a statement by the Chief Constable of Kent that "the Chief Constable has and must exercise the responsibility to decide upon the measures which are necessary in the prevailing circumstances and he expresses the hope that nothing in [the court's] decision would preclude him from doing so" (page 64), the Divisional Court responded:

"We confirm that it will indeed be for the Chief Constable to decide upon the measures necessary and that all concerned should cooperate fully with him."

The Divisional Court's judgment on this point is entirely in line with earlier authorities and I refer in particular to Neill L.J.'s statement in Harris v. Sheffield United Football Club Ltd. [1988] Q.B. 77, 91; "I see the force of the argument that the court: must be very slow before it interferes in any way with a decision of a chief constable about the disposition of his forces."

I.T.F. were obviously in a very difficult position but were determined to carry on trading "at whatever cost" as they said at a meeting with the police. The Chief Constable was in a no less difficult position. The evidence shows that he and his senior colleagues devoted considerable time and thought to how the situation could be handled. The police on the ground made many arrests--up to 14 January 1995 67 demonstrators were arrested. Between 15 January and 23 April, in addition to those arrested for connected offences, 183 persons were arrested. Overall in and around the port area 318 persons were arrested and 265 protestors were charged with 32 offences. At times the police were at risk from violent demonstrators.

It is my opinion wrong to over-emphasise particular areas where he might have done more or, as the Divisional Court said, where other chief constables might have reacted in a somewhat different way to particular aspects of the problem. The overall picture must be regarded.

As was said by Barnard & Hare in a valuable analysis of the issues raised by this case:

This, in my view, is such a case.

Here he did carry out a balancing exercise as he was required to do. He allocated his men on a carefully considered basis. He has not been shown to have ignored relevant facts or taken account of irrelevant factors in a way which vitiates his overall decisions. These decisions have not been shown to be unreasonable in a Wednesbury sense.

Mr. Roth Q.C. contends that what happened here was in breach of the principle in Beatty v. Gillbanks

[1882] 9 QBD 308

. In that important case it was held that persons who lawfully and peaceably assembled could not be convicted of the offence that they did "unlawfully and tumultuously assemble with divers other persons . . . to the disturbance of the public peace, and against the peace of our sovereign Lady the Queen." They did nothing unlawful and the evidence showed that the disturbances were caused by other people antagonistic to the appellants.

Per contra the Court said "If this disturbance of the peace was the natural consequence of acts of the appellants they would be liable, and the justices would have been right in binding them over."

It does not seem to me that that principle is in issue here. The proceedings do not relate to any prosecution of the lorry drivers for not turning back when told to do so because they did turn back and the direction given by the police is not raised as a separate head in the notice of application for leave to apply for judicial review though the facts are set out in the grounds on which relief is sought.

The police, in the performance of their duty, here sought to protect people exercising a lawful trade from the acts of violent demonstrators acting unlawfully and threatening a breach of the peace. When, with their finite resources of officers and finance, the police could do this they did so. Only when their resources were insufficient did they not provide the protection and, in order to prevent a breach of the peace, on rare occasions, they told the lorry drivers to turn back. I do not accept that Beatty v. Gillbanks lays down that the police can never restrain a lawful activity if that is the only way to prevent violence and a breach of the peace. Professor Feldman in " Civil Liberties and Human Rights in England and Wales " (1993) at page 791 writes:

It seems to me that in the way the police behaved here, they were acting within their discretion and taking the only steps they could, steps which were necessary to protect the lorry drivers from the violence of some of the demonstrators.

Community Law

Mr. Roth Q.C. in a forceful and carefully prepared case submits that it is plain that, whatever the position under domestic law, the decisions in the two letters were "measures" for the purposes of Article 34 of the E.C. Treaty, and that even if he cannot succeed against the Chief Constable under Article 34 read alone it is clear that Article 34, read with Article 5, imposes a liability on the Chief Constable on behalf of the United Kingdom which is directly enforceable. As to the latter point I accept that even though Article 5 is not directly enforceable by an individual, the combination of Article 5 with Article 34, which is directly enforceable, may be directly enforceable in some circumstances.

It is, as I understand it, common ground between the parties that the Chief Constable is an emanation of the State and that the decision of a local authority may constitute a "measure" in respect of a single undertaking for the purposes of Article 34. It is not common ground that what the Chief Constable did was a measure. I am not satisfied that the Chief Constable's acts or omissions here do constitute a "measure" for the purposes of Article 34. If that had to be decided I would find it necessary to refer a question to the European Court of Justice under Article 177 of the Treaty. However, if Article 36 is satisfied so as to provide an exception to the prohibition in Article 34 it is not necessary to consider that question. I therefore consider whether Article 36 is satisfied on the assumption that these decisions did constitute "measures". If it is, the Article 34 question does not have to be decided.

I agree, as Mr. Roth Q.C. submits, that here the onus is on the Chief Constable to establish that Article 36 is satisfied so that he must show that the decisions he took were "justified on grounds of. . . public policy" and that the exceptions to a fundamental rule of the Treaty like Article 34 must not be liberally interpreted or applied.

In a detailed analysis of many of the Court's decisions he says that, even if upholding the rule of law can be a public policy ground under Article 36, "balanced policing is something fundamentally different and that the rule of law is itself clearly threatened when the actions of private interest groups are able persistently and directly to prevent the exercise of freedom guaranteed by law." In none of the European Court's decisions is lack of funding accepted as an excuse for not protecting one of the freedoms created by the Treaty such as Article 34. He relies in particular on Reg. v. Bouchereau (Case 30/77) [1977] ECR 1999 , 2014, para. 35:

He also relies on what was said by Advocate General van Thenaat in Cullet v. Centre Leclerc Toulouse (Case 231/83) [1985] E.C.R. 305, 312:

Even if, contrary to I.T.F.'s submissions, the Chief Constable can establish that his decisions were not unreasonable in a Wednesbury sense, the investigation as to whether, for the purposes of Community law he can show that his decisions were suitable, necessary and not disproportionate to the restrictions which they involve, requires a more intensive review. Accordingly the Chief Constable, he submits, must show that there was no other course open to him that would have had less restrictive effect on rights under Article 34. None of these tests, he says, was satisfied here and the Divisional Court were right to say that the Chief Constable had to prove, and had not proved, that he could not get more money from the Home Office.

Quantitative restrictions "justified on grounds of public policy" include not just situations where there is something inherently bad about the activity itself which justifies the restriction but also where the broader requirements of public policy, here the maintenance of public order, justify steps being taken which so long as proportionate may have a restrictive effect.

I.T.F. argues, however, that "it was not a suitable or proportionate pursuit of the objective of balanced policing in Sussex to give a clear signal to unlawful protestors that the Chief Constable would allow their unlawful conduct to have its intended effect of restricting exports from Shoreham except on 2 days per week or to threaten lawful traders with arrest if they did not conform to this policy" (case 89).

All the cases to which your Lordships have been referred have to be considered now in the light of the important judgment of the European Court of Justice in Commission of the European Communities v. French Republic (

Case C-265/95

, judgment of 9 December 1997). In that case the Commission claimed that France had failed to fulfil its obligations under the common organisation of the markets in agricultural, products and under Article 30, in conjunction with Article 5, of the E.C. Treaty. The Commission's case was that there had been for more than a decade violent acts committed by individuals and by protest movements of French farmers directly against agricultural products from other Member States. Lorries were damaged, their loads destroyed, shops selling the goods were threatened and the goods damaged. From 1993 there was "a systematic campaign to restrict the supply of agricultural products from other Member States" (judgment paragraph 3). It was said by the Commission that the French Government had failed to take adequate or proportionate measures to deter the perpetrators of such offences. The Government's reply was that it had condemned the acts, brought criminal prosecutions and monitored what was happening. None the less the European Court found "it is a fact that, year after year, serious incidents have gravely jeopardised trade in agricultural products in France" (paragraph 44), that some incidents went on for several hours and that only a very small number of the persons who had participated in such offences have been prosecuted.

The Court held that Article 30 "also applies where a Member State abstains from adopting the measures required in order to deal with obstacles to the free movement of goods which are not caused by the State. . . . Article 30 therefore requires the Member States. . . . when read with Article 5 of the Treaty, to take all necessary and appropriate measures to ensure that that fundamental freedom is respected on their territory" (paragraphs 30 and 32). France had "manifestly and persistently abstained from adopting appropriate and adequate measures to put an end to the acts of vandalism which jeopardise the free movement on its territory" of agricultural products from other Members States. (paragraph 65) It was held to have failed in its Treaty obligations.

The facts of that case and the steps taken which the authorities took or failed to take are very different from the facts here but the Court made it clear that when it comes to taking all necessary and appropriate measures to ensure that the fundamental freedom contained in Article 30 is respected on its territory:

At paragraph 56 of the judgment the Court said:

I do not accept that the Court is here saying that in every case where steps have to be taken by a Member State a court must consider whether, somehow, the Member State could have found, somewhere, the money necessary to take steps which could theoretically have been taken. If that were so the State could always in theory call upon moneys allocated for education or health or defence and use them for this kind of purpose. That cannot have been intended. It would in any event require an investigation as to whether other competing claims for money allocated allowed moneys to be taken away from other areas of government. That is an impossible inquiry for the court to undertake and I think is an unreasonable exercise for the Member State itself to be required to undertake.

What is required in a case like the present where the Chief Constable has statutory and common law duties to perform is to ask whether he did all that proportionately and reasonably he could be expected to do with the resources available to him. He is after all dealing with an emergency situation and there is no question of funds being deliberately withheld by the State to hamper his work. The budget for the Authority was a very large one and it was for him to decide how he would use the moneys apportioned to him. These decisions have to be taken on the information available at the time. It is not right, in my view, that there should be an ex post facto examination of accounts to see whether, in some way or another, in the event moneys did prove to be available which perhaps could have been used. Thus, in the present case, I do not consider that the fact that the amount attributed to reserves in the final accounts in the 1995/1996 year (£13.13m.) meant that, at the time he had to take his decision, the Chief Constable should have assumed that the police authorities would allocate more money to this particular task than appeared as reserves in the budget (£7.25m.). It seems to me that at the end of the day it is all a question of considering whether "appropriate measures" have been taken. That in turn involves an inquiry as to whether the steps taken were proportionate.

In Reg. v. Secretary of State for the Home Department, Ex parte Brind

[1991] 1 AC 696

the House treated Wednesbury reasonableness and proportionality as being different. So in some ways they are though the distinction between the two tests in practice is in any event much less than is sometimes suggested. The cautious way in which the European Court usually applies this test, recognising the importance of respecting the national authority's margin of appreciation, may mean that whichever test is adopted, and even allowing for a difference in onus, the result is the same.

I am satisfied, as was the Court of Appeal, that the Chief Constable has shown here that what he did in providing police assistance was proportionate to what was required. To protect the lorries, in the way he did, was a suitable and necessary way of dealing with potentially violent demonstrators. To limit the occasions when sufficient police could be made available was, in the light of the resources available to him to deal with immediate and foreseeable events at the port, and at the same time to carry out all his other police duties, necessary and in no way disproportionate to the restrictions which were involved. Unlike the authorities in the case of France he was controlling and arresting violent offenders. He was, moreover, not dealing with a situation where no other way of exporting the animals was available. Dover was available and there were, and might be, other occasions when the lorries could get through. Far from failing to protect the appellants' trade he was seeking to do it in the most effective way available to him with his finite resources. It was only on rare and necessary, even dangerous, occasions that lorries were turned back. In the light of Article 36 it is not open to I.T.F. to say, as they at times seem to be saying, that they had an absolute right to export animals on seven days a week and there is no suggestion that with such a short Channel crossing their claim was necessarily limited to one sailing a day. This case is quite different from France where "manifest and persistent failure" to control those interfering with imports was shown and where there was no evidence to show that those responsible could have acted. Since this case involves the application of the principles laid down in France , where clearly the European Court left a considerable discretion to national authorities in dealing with issues of this sort, I do not find it necessary, nor are your Lordships obliged, to refer a question concerning Article 36 to the European Court of Justice under Article 177 of the E.C. Treaty.

I am satisfied that here the Chief Constable has shown that the steps that he took were justified on grounds of public order and I would dismiss this appeal.

LORD NOLAN

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Slynn of Hadley. I agree with it, and I too would, therefore, dismiss the appeal. The result may be seen as the acceptance by the courts of a victory for the violent elements in the crowds at Shoreham over the forces of law. I would describe it myself as an acceptance of the plain fact that there are limits to the extent to which the police can control unlawful violence in any given situation. If those limits are felt to be too narrow, the remedy lies in increasing the resources of the police. It does not lie in the imposition of further restrictions upon the discretion which the law allows to a Chief Constable to decide upon the best use of the resources, which are in fact available to him.

LORD HOFFMANN

My Lords,

International Trader's Ferry Ltd ("I.T.F.") was formed at the end of 1994. Earlier in the year there had been a sustained campaign of protest and demonstration against the shipment of animals to the Continent for slaughter. The pressure forced ferry operators to stop carrying them. Exporters had to find other means of getting the animals across the Channel. A group of farmers, hauliers and dealers therefore decided to form their own shipping company. This was ITF, which chartered a ro-ro ferry and commenced operations on 2 January 1995 carrying livestock from the port of Shoreham to France.

It was predictable that ITF's activities would attract protests and demonstrations. So it turned out. Sussex Police had to provide large numbers of officers to keep the demonstrators from blocking the access road to the port. There was a period in January 1995 when no less than 1,125 policemen were needed every day. Afterwards the numbers of demonstrators fell off and about 315 officers protected each sailing. I.T.F. agreed not to have sailings at week-ends or on bank holidays, when demonstrators were able to gather in large numbers. But by April 1995 the demonstrations showed no sign of stopping.

The Chief Constable of Sussex, who is responsible for the policing of the administrative counties of East and West Sussex, decided that policing Shoreham harbour was putting too great a burden upon the resources of his force. On 10 April 1995 he wrote to I.T.F. saying that he intended to withdraw police protection except on two consecutive days in a week or four consecutive days in a fortnight, Fridays, weekends and bank holidays excluded. I.T.F. protested that the freight from two sailings a week would not cover its charter hire. Sailings from Shoreham would be uneconomic. But the Chief Constable reaffirmed his decision in a second letter dated 24 April 1995. I.T.F. therefore moved some of its activities to Dover at the beginning of May and in June ceased to use Shoreham altogether.

On 4 May 1995 I.T.F. commenced proceedings for judicial review of the Chief Constable's decision. It based its case upon domestic and European law. In domestic law, the Chief Constable has a public duty to keep the peace and enforce the law. But the law gives him a wide discretion as to the way in which the duty is performed. As Lord Denning M.R. said in Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118, 136:

I.T.F. acknowledges the existence of this discretion but says that in withdrawing protection to the extent which he did, the Chief Constable exceeded its lawful bounds. He knew that without protection, I.T.F.'s lawful trade would be disrupted by unlawful acts of obstruction, even violence, on the part of some protesters. But for most of the time he let them have their way and thereby denied I.T.F. the protection of the law.

In European law, I.T.F. say that the Chief Constable's decision was a "measure" having equivalent effect to a quantitative restriction on exports. It was therefore contrary to Article 34 of the Treaty of Rome:

"Quantitative restrictions on exports and all measures having equivalent effect shall be prohibited between Member States."

Alternatively, I.T.F. submits that if the Chief Constable's decision cannot be regarded as a "measure" because it did not prevent I.T.F. from exporting but merely gave notice that the Chief Constable would do nothing to stop the demonstrators from doing so, then I.T.F. say that Article 5 of the Treaty imposes upon the United Kingdom a positive duty to maintain the free movement of goods:

I.T.F. say that the Chief Constable, as an emanation of the State, failed to take appropriate measures to facilitate the free passage of exports.

Both the Divisional Court and the Court of Appeal rejected the claim in domestic law, saying that the Chief Constable was entitled to balance the needs of I.T.F. against his obligations to provide policing for the rest of Sussex. In so doing, he could not be said to have acted unreasonably. But there was a division of opinion on European law. The Divisional Court said that the decision was a "measure" which infringed Article 34. Nor could it be justified under any of the exceptions contained in Article 36:

The Court of Appeal was content to assume that it was a measure but held that the need to provide adequate policing for the rest of Sussex was a legitimate head of public policy which could provide a justification under Article 36. In exercising his discretion, the Chief Constable acted reasonably and proportionately as between the needs of the people of Sussex for police protection and the Community interest in free movement of goods. Against this decision and the rejection of its case in domestic law, I.T.F. appeals to your Lordships' House.

1. Domestic law

My Lords,

I will say at once that I think I.T.F.'s claim in domestic law is quite hopeless. The reasons will become apparent if I explain the legal position of the Chief Constable and the financial and other constraints within which he operates. It is important to bear in mind that the Chief Constable is the only respondent to this application. That is not to say that I.T.F. would have done any better if they had brought their proceedings against other persons and bodies who also have legal powers and responsibilities for the policing of Sussex, such as the Sussex Police Authority and the Home Secretary. They too have wide discretions. But the form of the proceedings means that your Lordships may concentrate upon the position of the Chief Constable and need not trouble about what others may have done.

For the purpose of convenience I shall refer to the provisions of the Police Act 1996 , which came into force after the events in this case but which merely consolidated identical provisions in earlier statutes now repealed. The duty to "secure the maintenance of an efficient and effective police force" is imposed by section 6 (1) upon the Police Authority, a body made up largely of local authority representatives with some independent members and magistrates. The Police Authority appoints the Chief Constable and is in no way subject to his control. It is the Authority which fixes the police budget. This is funded partly by local authority funds and partly by a police grant made by the Home Secretary under section 46 .

The Chief Constable has operational command of the force but must work within the police budget. He has the discretion to which Lord Denning referred in Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118 but he is now also required to have regard to the objectives and targets set out in an annual plan issued by the Police Authority pursuant to section 8 . This will state the Authority's priorities, the financial resources expected to be available and the proposed allocation of those resources. In preparing the plan, the Authority will have regard to what it perceives to be the policing priorities of its area and also to any national objectives and performance targets set by the Home Secretary under sections 37 and 38.

The 1995-96 police plan said that the police would concentrate their efforts on the prevention and detection of crime and answering and attending calls from the public. The Home Secretary had also determined certain "key objectives" which had to be included in the plan, such as increasing the number of detections for violent crime and targeting crimes which were a local problem such as drug-related criminality.

In 1995 the force consisted of just under 3,000 officers, of whom 25 per cent. would at any given time be on rest days. It will therefore be apparent that if the 1,125 officers deployed at Shoreham in January 1995 had been drawn entirely from Sussex, the Chief Constable would have been left with only half his force to police the rest of the two counties. In fact a substantial number were provided by other forces pursuant to section 24 , which enables forces to request and provide mutual aid in emergencies. It is however expensive. The few occasions in January and February 1995 on which the Chief Constable drew upon mutual aid cost the Sussex Police Authority £1.2 million. When the Chief Constable decided to restrict protection to two sailings a week, the officers on duty were all from the Sussex force.

The Home Office can make special payments by way of assistance to a Police Authority which has incurred expenditure which was unforseen, exceptional and threatens the efficiency of the force. These criteria are rarely satisfied and in answer to inquiries, the Home Office made it clear to the Sussex Authority that it did not consider them satisfied in this case. The Chief Constable had no power to make the Home Office pay more money or even to make the Sussex Police Authority ask for it.

The Chief Constable says that by April 1995 he had formed the view that Shoreham was having a significant adverse effect on his ability to attain the objectives which had been given priority in the policing plan. In January to March, residential burglaries had increased by 7.5 per cent. over the same period in the previous year and violent crime by 5.5 per cent. Other indicators also pointed to a drop in policing efficiency.

My Lords,

it seems to me quite impossible to say that against this background, the decision was unreasonable. He was not merely entitled but statutorily obliged, in the allocation of the resources under his command, to have regard to the fact that the Police Authority, mainly appointed by the democratically elected institutions of local government, wished priority to be given to the objectives stated in the plan.

I.T.F. says that this case is unique because the Chief Constable decided, as a matter of policy, that he would not deploy the forces which he himself had decided were necessary to deal with an anticipated level of unlawful and violent conduct. It was his decision that 315 or so officers were needed to keep the peace at Shoreham and provide protection for ITF's lawful trade. His duty to enforce the law therefore required him to provide that number of policemen.

In my view this reasoning is fallacious. The fact that a Chief Constable considers that certain resources would be needed to prevent some kind of criminal behaviour does not entail that he is obliged to provide them. He might, for example, decide that the only way to eliminate muggings on the streets of Brighton or burglaries in Rottingdean would be to have many more constables on patrol and spend large sums on vehicles and communication equipment. This cannot create a duty to find the resources at the expense of other policing activity. I can see no distinction between the interests of ITF in obtaining protection from demonstrators and those of the citizens of Brighton and Rottingdean in obtaining protection from muggers and burglars.

I.T.F. also complained that the Chief Constable had gone further than merely refusing to provide protection except on two days a week. He had, said I.T.F., instructed officers to tell drivers of livestock lorries that if they attempted to reach the docks on other days they would be arrested for obstructing a police officer in the execution of his duty. This, it was argued, would have been contrary to the constitutional principle that lawful activities cannot become unlawful because other people threaten unlawful acts to stop them: Beatty v. Gillbanks

(1882) 9 QBD 308

There is a dispute of fact over whether the Chief Constable did give orders in such broad terms but I think that even if he did, it can make no difference to this appeal. I.T.F.'s application for judicial review does not complain of any such orders by the Chief Constable and the point was not properly explored in the evidence. The Chief Constable does not claim that it would have been unlawful to drive to the docks and no one was arrested for doing so. If someone had been, the case might have raised interesting questions of the kind discussed in the controversial decision of the Divisional Court in Duncan v. Jones [1936] 1 K.B. 218. As it is, the point does not arise.

Finally, ITF relies upon the decision of the Divisional Court in Reg. v. Associated British Ports, Ex parte Plymouth City Council , reported as Reg. v. Coventry City Council, Ex parte Phoenix Aviation [1995] 3 All E.R. 37. Associated British Ports ("A.B.P.") operated Plymouth Docks and had a statutory duty to keep the harbour open to all persons for shipping goods. Notwithstanding this duty, Plymouth City Council brought judicial review proceedings claiming that A.B.P. should be ordered to close the harbour to livestock exporters. The application was plainly a bold one: Simon Brown L.J. described it, at p. 63, as "barely respectable." The grounds alleged for requiring A.B.P. to breach its statutory duty were that demonstrations were causing a nuisance to people living near the docks and putting a strain on police resources. The court said that this was insufficient; if the lawful use of the docks gave rise to unlawful demonstrations, it was a matter for the police to decide how best to cope with them. Simon Brown L.J. said that it was regrettable that the Council were "asking the court to order their own port authority in effect to surrender to mob rule." I.T.F. fastens on these words and says that the Chief Constable of Sussex has surrendered to mob rule. I find these emotive phrases unhelpful. The positions of A.B.P. and the police are quite different. A.B.P. had an unqualified statutory duty not to turn anyone away. The police have a different duty to uphold the law which confers a wide discretion subject to the statutory plan. The possible perception that he had surrendered to mob rule was one of the matters which the Chief Constable took into account and he could not be legally obliged to do more. For these reasons I agree with the Divisional Court and the Court of Appeal that I.T.F.'s claim in domestic law must fail.

2. European law

The European aspect of the case has proved more difficult than the domestic; indeed, as I said earlier, it gave rise to a difference of opinion between the Divisional Court and the Court of Appeal. I think that the reason for the difficulty is that the case has been argued upon certain assumptions about the effect of Articles 5 and 34 of the Treaty which in my view are wrong. In particular, it has been assumed(a) that the Chief Constable's decision was a "measure" within the meaning of Article 34 or that the I.T.F. was in some other way entitled to enforce Community rights under Articles 5 and 34 against the Chief Constable and

(b) that in considering whether a measure which prima facie infringed Article 34 could be justified under Article 36 on grounds of public policy, it was right to consider public policy from the point of view of the Chief Constable rather than the United Kingdom as a whole. Lord Lester Q.C., for the Chief Constable, said that he did not necessarily accept the first assumption and Mr. Roth Q.C., for I.T.F., said much the same about the second. For the most part, however, the argument proceeded on the basis that they were correct. In my view they are in fact contrary to the jurisprudence of the European Court and have distorted the shape of the case as presented to your Lordships. This explains the difficulty and awkwardness involved in trying to fit it within the principles derived from the European cases.

I shall consider first whether the Chief Constable's decision as expressed in the letters under challenge was a measure having equivalent effect to a quantitative restriction on imports within the meaning of Article 34. It certainly had equivalent effect, because it reduced the amount of livestock which could be exported from Shoreham. But was it a "measure?" In the Divisional Court, Balcombe L.J. said that it was. He stressed the fact that, in his view, the Chief Constable had made it clear that his officers would prevent a convoy of lorries from going to the docks when they feared there might be a breach of the peace. This was a positive prohibition on exports. In my view, however, it is not legitimate to look beyond the terms of the letters which constitute the decisions under challenge. There is, as I have said, a dispute of fact about whether the Chief Constable said that he would stop lorries and even if he did, there is nothing to show that his statement had any causal effect upon I.T.F.'s ability to export. That was caused by the demonstrators and not by anything done or threatened to be done by the police. The substance of the complaint is that the Chief Constable did not take measures to protect the convoys.

In some contexts (for example, if the Chief Constable had owed an unqualified statutory duty to permit free passage of goods through the port of Shoreham) it would be technical to insist upon the distinction between a positive preventative measure and a mere failure to act. The scope of such a hypothetical duty would almost certainly cover both. But the distinction, as I hope to show, is very important in the European jurisprudence on the free movement of goods.

I.T.F. are able to assert a Community right only if the Article or Articles which it alleges to have been infringed have direct effect , that is to say, they give rise to rights which are directly enforceable by citizens of Member States against the State or against other citizens. The concept of direct effect was first expounded by the Court in Van Gend en Loos v. Nederlandse Administratie Der Belastingen (Case 26/62) [1963] ECR 1 and is a fundamental principle of Community law. Not all the provisions of the Treaty or subordinate legislation confer rights upon private persons such as I.T.F. Many will operate only at the level of international law, enforceable only by Member States against each other or by the Commission in proceedings under Article 169:

In the case of Article 34 there is no doubt that, ever since Van Gend en Loos [1963] E.C.R.1, it, and its sister Article 30, which prohibits quantitative restrictions on imports, have been construed as having direct effect. But in construing the scope of those Articles, it is important to take into account the reasons why the European Court of Justice has said that they satisfy the criteria for having direct effect. There is a convenient statement of those criteria in the judgment of the Court in Case 44/84 Hurd v. Jones [1986] E.C.R. 29, para 47:

The paradigm of a provision which is clear, unconditional and not contingent upon implementation by a Member State is a prohibition against some defined action. It was the negativity of the obligation which the Court emphasised in its discussion of the relevant provision (Article 12, which prohibits customs duties or charges having equivalent effect) in Van Gend en Loos itself:

Even in cases in which it may look as if a Member State has infringed Article 30 or Article 34 by failing to take some positive steps to facilitate free movement of goods, it will be found on analysis that the direct effect arises from the negative prohibition having been infringed. So, for example, in Commission of the European Communities v. Italian Republic (Case 128/89) [1990] E.C.R. 1-3239 the Italian Government was held to have infringed Article 30 by closing all inland frontier posts at which imported grape fruit could be inspected and allowing importation only through certain seaports. This may look like a failure to take positive steps to provide more inspection posts. On a proper analysis, however, it was the law which prohibited the importation of grapefruit without inspection which prima facie infringed Article 30. The requirement of inspection in itself made importation more difficult and therefore constituted a restriction. The question in the case was whether it could be justified under Article 36 and a specific Directive (77/93) on the grounds that it was necessary for "the protection of the health and life of plants": see Advocate General Jacobs at pp. 3251-3252, paras. 11 and 12. The Italian Government failed to show that it was necessary for such purposes, not merely to require inspection, but to require it at a restricted number of border posts. Thus the fact that more inspection posts could have been provided was not the reason why Italy was in breach of Article 30--it was the reason why Italy failed to establish a defence under Article 36.

The distinction between positive measures by a Member State or one of its institutions which infringe the directly enforceably prohibitions in Article 30 and Article 34 and the failure of a Member State to take "appropriate and adequate measures" to maintain the free movement of goods against the acts of individuals such as demonstrators was clearly made in the recent Commission v. France (

Case C-265/95

) (Judgment 9 December 1997). In that case, the French Government had over a long period "manifestly and persistently abstained from adopting appropriate and adequate measures to put an end to . . . acts of vandalism" and other unlawful practices by French farmers against imported fruit and vegetables: see para. 65 of the judgment of the Court. But Advocate General Lenz (at para. 8) said that this did not constitute an infringement of Article 30:

On the other hand, Article 5 imposed upon Member States a positive obligation which, read with Article 30, implies an obligation to take appropriate measures to maintain freedom of imports. The Court adopted this analysis in paragraph 32 of its judgment:

Thus in order to create an obligation upon a Member State to take positive steps, Article 30 requires the support of Article 5.

Does this obligation give rise, like the negative prohibition in Article 30, to directly enforceable rights? There is no decision on the point: Commission v. France was an action by the Commission under Article 169. But the terms in which the Court stated the nature of the obligation make it highly unlikely that it would be held to be directly enforceable. For this purpose, it will be remembered, the obligation must be clear, unconditional and not leave the means of implementation to the discretion of the Member State. But the terms in which the Court described the duties of the French Government conceded a wide discretion over the way in which the obligation was to be implemented:

The existence of a discretion of such breadth seems to me incompatible with the criteria for direct effect. Mr. Roth submitted that there were cases in which direct effect had been attributed to the obligation of a Member State under Article 5 in conjunction with the Articles on competition. I have not pursued the question because I am willing to assume that this may be so. There is no reason why certain positive obligations should not be sufficiently clear and unconditional to have direct effect. But we are concerned with the particular obligation to maintain free movement of goods in the face of civil disturbance by citizens of a Member State. I say only that this seems an unlikely candidate for direct enforceability.

If the decision of the Chief Constable was not an infringement of Article 34 standing alone and if the positive obligation created by Article 5 does not have direct effect, then there is no European dimension to the present case at all. There has been no infringement of a Community right of which I.T.F. can complain. This analysis would go far to explain why it has proved so difficult, on the assumption that there has been a prima facie infringement of Article 34, to apply the European jurisprudence on the justifications in Article 36. The difficulty lies in the fact that Article 36 involves a balancing of, on the one hand, the legitimate interests of the Member State falling within the categories specified in Article 36 and, on the other hand, the Community interest in free movement of goods. Measures taken by a Member State which prima facie contravene Article 30 or Article 34 must be proportionate in the sense that they must not restrict the free movement of goods more than is necessary to protect such a legitimate interest. But the considerations taken into account in this balancing process are quite different from those involved in the domestic decision as to whether the Chief Constable acted reasonably in balancing the interests of I.T.F. with the policing demands of the rest of Sussex. In European law, justification is seen in terms of the legitimate interests of the Member State as a whole and for this purpose, all the institutions of the State are aggregated and treated as a single entity. In a number of cases the European Court has said that a Member State "may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with its obligations under Community law": see for example Joined Cases 227 to 230/85 Commission of the European Communities v. Kingdom of Belgium [1988] E.C.R. 1, 11, para. 10. Similarly in Case 231/83 Cullett v. Centre Leclerc Toulouse [1985] E.C.R. 305 the French Government imposed minimum prices on the sale of imported petroleum products, thereby preventing importers from deriving a competitive advantage from their lower costs. The French Government attempted to justify this regime under Article 36 on the ground that there was a "threat to public order and security represented by the violent reactions which would have to be anticipated on the part of retailers affected by unrestricted competition."

The Court rejected the argument out of hand (p. 324, para. 33):

The Court was plainly not concerned with any internal divisions of responsibility or jurisdiction among the French law-enforcement authorities. The responsibility for compliance with the Treaty was that of the Member State with all the resources at its disposal.

This reasoning is entirely appropriate when the question is the existence of justification for some measure taken by the Member State or one of its institutions which prima facie infringes the prohibition in Article 30 or Article 34, or the compliance by the Member State with its positive obligation under Article 5 in proceedings under section 169 to which the Member State itself is a party. In the former case, the issue is simply whether the validity of the measure has been struck down by Article 30 or Article 34 as supreme law. There is no question of the court ordering anything positive to be done. In the latter case, the court will declare that the Member State, taken as a whole, has failed to comply with its obligations under Article 5. But the reasoning makes little sense in proceedings brought against the Chief Constable, asserting a duty on his part to take positive steps which involve the use of resources. Mr. Roth saw the difficulty in making the cases on Article 36 fit his contentions on the liability of the Chief Constable and suggested that, pursuant to the principles stated in cases like Cullet , the Chief Constable should be deemed to have access to all the resources of the United Kingdom. But I think it would be absurd for a court to make an order against an individual Chief Constable requiring him to take certain steps on the assumption that he has at his disposal all the resources of the United Kingdom. He plainly could not comply with such an order. The need for I.T.F. to advance such an argument reinforces my view that Article 34 has no application to this case.

My Lords,

I have taken some time to explain why I feel some reluctance about dealing with the European aspect of the case on the assumptions accepted by the Divisional Court and the Court of Appeal. I think that it is a false basis. But if I am obliged to do so, then I prefer the view of the Court of Appeal. If it can be assumed legitimate to examine the public policy justification in Article 36 on the basis that we are concerned only with the obligations of the Chief Constable, then I have no difficulty in agreeing that he acted in pursuance of a legitimate head of public policy and that the degree of restriction on exports cannot be shown to have been disproportionate. I would therefore dismiss the appeal.

LORD COOKE OF THORNDON

My Lords,

To begin by disposing of a minor point which might not otherwise be mentioned in the speeches on this appeal, I note that in the Case for the respondent Chief Constable some purely incidental support was claimed from article 35.5 of the Consolidated Version of the Treaty on European Union. Article 35.5 is among the provisions to be introduced by the Treaty of Amsterdam. Like the other new provisions and the renumbering which is to take place, it will not come into force until the Treaty of Amsterdam itself comes into force. It reads:

Somewhat similar provisions are to appear in the renumbered articles 64.1 and 68.2. Although none of these provisions are yet in force, the suggestion apparently was that they might reflect a continuing theme, evidencing that the Member States have exclusive competence as regards public order and that the European Court of Justice is prohibited from examining the validity of police decisions per se.

A perusal of the Treaty of Amsterdam makes it clear, however, that the new provisions are confined to the respective titles in which they appear (Title Vl, Provisions on Police and Judicial Cooperation in Criminal Matters and Title lV, Visas, Asylum, Immigration and other Policies related to Free Movement of Persons) . In their own spheres they will operate to exclude entirely any jurisdiction of the European Court of Justice. I do not think that they can have any significant bearing on the present articles 5 (to be renumbered 10), 34 (to be renumbered 29) and 36 (to be renumbered 30) of the Treaty Establishing the European Community, nor on the present article 177 (to be renumbered 234) of that Treaty insofar as it confers on that court jurisdiction to give preliminary rulings concerning the interpretation of those articles. Likewise the direct effect of those articles, and the consequent duties of national courts to remedy breaches of them, must remain, as I see it, unmodified by the Treaty of Amsterdam.

To turn now to matters of more present importance, I.T.F. attacks the decisions as to policing policy contained in the Chief Constable's letters of 10 and 24 April 1995. It is appropriate to read each letter as a whole and in the context of the history of the demonstrations at Shoreham. The essence of the policy announced in the first letter and reiterated in the second was that no policing would be provided to protect the transport of livestock to Shoreham for shipment by the applicant to France, save on two consecutive days a week or four consecutive days a fortnight, excluding in any case Fridays, weekends and bank holidays. There were other conditions: lorries were restricted to one movement per day and any movement of lorries was to consist of not less than seven or more than ten vehicles.

My Lords,

since experience had shown that, without policing, lorries were unlikely to get through at all regularly, and since it was undoubtedly the Chief Constable's purpose (however reluctantly formed) to prevent or at least severely limit livestock shipments by the applicant outside the permitted days and conditions, I think that the terms so laid down were in the ordinary use of language measures having effect equivalent to quantitative restrictions on exports. No doubt the Chief Constable did not wish to have to adopt these measures. He considered that they were forced on him by the tactics of law-breaking protesters and the need to deploy his resources in a balanced way. This explains his policy but cannot alter its effect. It is effect, not motive, with which the second limb of the present article 34 of the E.C. Treaty is concerned. In Commission v. France (9 December 1997) there was no corresponding promulgation of policy. It would be stretching words to describe as "measures" the turning of a blind eye in the Anglo-Saxon idiom or a shrug of shoulders in the Gallic. A Minister's statement that he did not contemplate intervention by the police can hardly pass muster as a "measure." Hence the emphasis which it was thought necessary by the Advocate General and the Court in that case to place on the present article 5. In the Shoreham case, by contrast, I am not persuaded that it is necessary to look beyond articles 34 and 36.

Of course, it is possible that in article 34 "measures" has some special and more limited meaning. If it were necessary to decide that point, I would share the view of my noble and learned friend Lord Slynn of Hadley that it should be referred to the European Court of Justice under the present article 177. I am content now to assume, however, that what I have called the ordinary meaning is the correct one.

On that assumption certain consequences follow. First, as the present article 34 contains a clear and unconditional prohibition and so has direct effect (Van Gend en Loos [1963] ECR 1 ), the announced policy was prima facie an actionable breach of that article but is open to justification under the present article 36 on grounds of public policy or public security. Secondly, although in the argument of this case it was found convenient to deal with domestic law and community law as separate heads, the rights of ITF under article 34 will be directly enforceable in the United Kingdom by virtue of section 2 (1) of the European Communities Act 1972 . In truth article 34 becomes part of domestic law and to the extent of any inconsistency prevails over such domestic law as would otherwise apply. If anything, scrutiny under article 36 is more rigorous than scrutiny under ordinary domestic law, so the latter may be treated as subsumed in the former.

My Lords,

I have said "if anything" because I agree with the proposition of Lord Lester of Herne Hill Q.C. that on the particular facts of this case the European concepts of proportionality and margin of appreciation produce the same result as what are commonly called the Wednesbury principles. Indeed in many cases that is likely to be so. It seems to me unfortunate that Wednesbury and some Wednesbury phrases have become established incantations in the courts of the United Kingdom and beyond. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation

[1948] 1 KB 223

, an apparently briefly--considered case, might well not be decided the same way today; and the judgment of Lord Greene M.R. twice uses (at 230 and 234) the tautologous formula "so unreasonable that no reasonable authority could ever have come to it." Yet judges are entirely accustomed to respecting the proper scope of administrative discretions. In my respectful opinion they do not need to be warned off the course by admonitory circumlocutions. When, in Secretary of State for Education and Science v. Tameside Metropolitan Borough Council

[1977] AC 1014

, the precise meaning of "unreasonably" in an administrative context was crucial to the decision, the five speeches in the House of Lords, the three judgments in the Court of Appeal and the two judgments in the Divisional Court all succeeded in avoiding needless complexity. The simple test used throughout was whether the decision in question was one which a reasonable authority could reach. The converse was described by Lord Diplock (at 1064) as "conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt." These unexaggerated criteria give the administrator ample and rightful rein, consistently with the constitutional separation of powers.

Similarly, in the present field, it is said by the European Court of Justice in Commission v. France (at para. 33) that "The Member States, which retain exclusive competence as regards the maintenance of public order and the safeguarding of internal security, unquestionably enjoy a margin of discretion in determining what measures are most appropriate . . ." For practical purposes in this case I think that the Chief Constable must enjoy a margin of discretion that cannot differ according to whether its source be found in purely domestic principles or superimposed European principles. The Wednesbury judgment itself confirms (at 229) that the administrative authority must direct himself properly in law. In the field now relevant he must therefore give weight both to his duty to enforce the rule of law as far as reasonably practicable and to the principle that, as stressed by the European Court in Commission v. France (at para. 24), the free movement of goods is one of the fundamental principles of the Treaty.

Nevertheless, under both the ordinary United Kingdom and the broader European systems, public policy or public security may justify restrictions on a lawful trade. Whatever the rubric under which the case is placed, the question here reduces, as I see it, to whether the Chief Constable has struck a balance fairly and reasonably open to him.

Insofar as the facts have been traversed by other members of your Lordships' Appellate Committee it would be superfluous to repeat them, but there are aspects on which I would say something. One relates to the view of the Divisional Court that the Chief Constable might have had "the beginning of a defence under article 36" if the Home Office had been asked for and had refused a special grant. On the evidence it would seem to have been always unlikely that such a request would have been met. The Home Secretary's letter of 11 August 1995, written after the Divisional Court judgment and quoted by Kennedy L.J. in [1998] Q.B. at 491, confirms as much. But the fact must be faced that the Home Secretary's position was that the Sussex Police Authority had other sources of funds which should be sufficient. This position was taken implicitly in the letter of 11 August 1995 and explicitly in a news release by the Home Secretary of 16 January 1995 and an answer by him on 19 January 1995 to a question in the House of Commons.

Among the points made by the Home Secretary were that the County Councils were "underfunding" the Sussex Police by £4 million, which would automatically attract a Home Office grant of another £4 million, together more than enough to cover the full cost of special policing at Shoreham, as sought by I.T.F., for five days a week. Further, in a letter to Mr Leavey of the National Farmers Union, dated 5 December 1995, the Home Secretary pointed out that the Sussex police's published annual policing plan provided for £7.25 million (5 per cent. of budget) being put into reserves. A new Sussex Police Authority took over from 1 April 1995; from the report and accounts for 1995/6 it appears that, in the event, during the year £8.052 million was in fact transferred to reserves. Also the Authority became "debt free" by paying off long-term borrowing previously shown at £1.216 million.

The agreed statement of facts and issues records that the additional costs of policing the port, including all related operations, from 6 April to 22 June 1995 (with effect from 24 April on two days per week) were £517,145. The Police Authority estimated that it would have cost at least £89,430 per week to finance a further three days policing using officers supplied under the mutual aid scheme. Extrapolated over a full year the latter figure would be £4.65 million. It assumes (perhaps improbably) that the size of the protests would not have declined.

In the light of the figures and the Home Secretary's position, it would not be right to approach the case on the footing that the extra cost of the full police protection sought by I.T.F. would have been prohibitive for the Chief Constable. His case cannot be put quite so high. Rather his position is that he would make special provision for I.T.F. to the extent of two days a week or four a fortnight, and that this is a reasonable and proportionate response when weighed with his other responsibilities. It emerged during the argument in your Lordships' House that his two day or four day proposal is not shown to have been based on any precise mathematical calculation or ratio. For example it was not possible to pinpoint why he offered two days a week instead of one or three. Perhaps his aim was to offer something sufficiently substantial to be clearly more than a mere gesture, but to go no further. But that is speculation. And, however that may be, although the company insists that it would need five days a week, there is no ground in the evidence for suggesting that the Chief Constable did not make a genuine attempt at a fair compromise.

The strongest ground for questioning the lawfulness of the Chief Constable's policy is the one that at all stages of the case Mr Roth Q.C. has put in the forefront of his argument. If the policy is upheld, the case is a defeat for the rule of law and a victory for mob rule. Emotive though such descriptions may seem, they are no more than the truth. It is not a question of the rights of peaceable protesters against the rights of a lawful trader. It is the lawless elements acting on the side of the protesters who have won the day. That unpalatable fact must be acknowledged. A decision to that effect cannot be justified except for most cogent reasons. In the end, however, I do not differ from the opinions of my noble and learned friends and the Court of Appeal that such reasons do exist here. Essentially they are threefold and closely linked.

In the first place there is the reason captured by Lord Hoffmann's reference to the citizens of Brighton and Rottingdean. That is to say, the case can equally be seen as a conflict, not between the company and the lawbreakers but between the policing needs of the company and those of all the rest of the public of Sussex, including in the latter the need to make at least some relatively modest provision for reserves to meet contingencies. In the second place it has to be borne in mind that the company's needs are purely commercial. The company is carrying on a lawful trade but one of a kind apt to arouse opposition in modern society. In effect the company is asking the public to subsidise it to a total extent of more than £7 million a year in order to enable it to make a private profit. In the third place the entire issue relates to one port only. Shoreham may often be more convenient for the company's operations, but other ports, notably Dover, are available.

Bearing in mind in particular those factors among all the circumstances of the case, I am forced to conclude that the Chief Constable struck a fair and reasonable balance which survives scrutiny under purely domestic law and European--originating domestic law alike; and I too would dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

I have had the advantage of reading in draft the speeches which have been prepared by my noble and learned friends Lord Slynn of Hadley and Lord Hoffmann. For the reasons which they have given I also consider that I.T.F. have failed to show that the Chief Constable was in breach of his public duty in domestic law.

I also doubt the soundness of the assumptions which formed the basis of the argument as to whether I.T.F. has a remedy against the Chief Constable in Community law. But I agree with Lord Slynn of Hadley that, if those assumptions are made, the Chief Constable's actions can be justified under Article 36 of the Treaty on grounds of public policy.

I too would dismiss the appeal.

Cited in 22 later judgments

and 13 more of the most senior