JUDGMENT
DB (Appellant) v Chief Constable of Police Service
of Northern Ireland (Respondent) (Northern
Ireland)
before
Lord Neuberger, President
Lord Kerr
Lord Reed
Lord Hughes
Lord Dyson
JUDGMENT GIVEN ON
1 February 2017
Heard on 15 November 2016
Appellant Respondent
Karen Quinlivan QC Tony McGleenan QC
Fiona Doherty QC Joe Kennedy BL
(Instructed by Padraig O
Muirigh Solicitors
)
(Instructed by Crown
Solicitors Office
)
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LORD KERR: (with whom Lord Neuberger, Lord Reed, Lord Hughes and
Lord Dyson agree)
Introduction
1. The flags protest, as it has become known, took place throughout Northern
Ireland in late 2012 and early 2013. The series of demonstrations and marches that
the protest involved presented the Police Service with enormous, almost impossible,
difficulties. They strove to deal with those difficulties by using different policing
techniques and strategies; responding to intelligence reports; considering
representations made by community leaders; continuously re-evaluating their
decisions; and consulting interested parties who might contribute to the resolution
of the problems caused by the protests. They also recorded the deliberations that
they undertook and the consultations that they held within the Police Service. A
great many police officers were deployed to police the demonstrations and marches.
A considerable number of them sustained injuries. Assiduous detection of offenders
and their prosecution continued throughout this unhappy time.
2. There can be no reasonable suggestion, therefore, that the police failed to
treat the control of parades and demonstrations with sufficient seriousness. They
were obviously exercised at an early stage, and throughout the period when the
parades and the disorder took place, to seek to control the marches and to minimise
the disorder to which they gave rise. It is also clear that police were constantly
concerned about the risk of greater disorder occurring with the consequent risk to
life which might accrue if they tried to prevent the parades from taking place
altogether, rather than policing and controlling them as best they could. This case is
not about the sincerity and authenticity of the efforts made by police to control the
parades. It is about their conception and understanding of the powers available to
them to do so.
3. The various managerial and strategic steps undertaken by the police and the
tactical decisions made on foot of them reflect the standards required of and the
demands made on a modern police force. It is also, of course, necessary for a police
force in our society to have a proper understanding of the extent of the legal powers
available to them in order to discharge their duties effectively and fairly in service
of the community. The question whether the Police Service for Northern Ireland
(“PSNI”) was sufficiently aware of the full range and scope of those powers is now
the principal issue in this appeal.
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4. This was not always the position. Application for leave to apply for judicial
review was first made on 31 January 2013. Its primary focus was on obtaining relief
in relation to a planned parade on 2 February and challenging the failure of PSNI to
give assurances that they would take action to prevent that parade from taking place.
The statement served in support of the application under Order 53 of the Rules of
the Court of Judicature of Northern Ireland (1980) did, however, contain the claim
that the failure of PSNI to prevent the parade had the effect of undermining the
Public Processions (Northern Ireland) Act 1998 and that it constituted a breach of
their obligations under section 32 of the Police (Northern Ireland) Act 2000.
5. As the case progressed and the reasons that the police had not taken action to
stop various parades became clear, the emphasis has shifted to an attack on PSNI’s
failure to recognise and make use of legal powers available to it to prevent the
parades from taking place. It is still argued that that failure has undermined the
efficacy and proper functioning of the 1998 Act. It is also claimed that the
operational decisions of the police have not been proportionate. But these latter
arguments have featured somewhat less prominently in the appellant’s presentation
of his appeal before this court.
6. The application for judicial review had also sought orders against the
Secretary of State for Northern Ireland for failing to exercise her powers under
section 11 of the 1998 Act to prohibit the holding of the procession. That particular
application was dismissed. There is no appeal from that dismissal and nothing more
need be said about it.
The historical setting
7. For a number of years before 1998, considerable public disorder and
community conflict were regular features of many contentious parades in Northern
Ireland. Until the enactment of the 1998 Act, the police were responsible for
deciding whether parades should be permitted to proceed. This placed them in a
wholly invidious position. Their impartiality was questioned and they were accused
of taking sides both in permitting some parades to proceed and banning others. It
was against this background that a report was commissioned by the government into
what should be done about the management and control of public processions in
Northern Ireland. The chairman of the body which produced the report was Dr Peter
North and the report has become known as “the North report”. Some details about
the recommendations which the report contained are given at paras 45-49 below.
8. The 1998 Act created a new public body, the Parades Commission. The
commission was charged under section 8 with the function of controlling parades by
means of conditions regulating their conduct, imposed on those who organised them.
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The commission did not have power to prohibit a procession. The Secretary of State
did have such a power under section 11, on specific grounds, but it has never been
exercised.
9. A key part of the scheme of the 1998 Act was that control of parades would
be achieved by conditions imposed by the commission. In order for that vital
element to work, a statutory duty (section 6(1)) was placed on those proposing to
organise a public procession to give advance notice of that proposal to a member of
the police force. By section 6(7) it was made a criminal offence to organise or to
take part in a public procession which had not been notified. It was also an offence
to fail to comply with any conditions imposed. None of the flags parades in Belfast
was notified to the commission.
10. Under the general law the police have a duty to prevent the commission of
offences. That fundamental duty of the police, inherent at common law, is expressly
confirmed by section 32 of the 2000 Act. There was power, therefore, to prevent a
parade from taking place on the grounds that it was likely to result in public order
offences. But under the 1998 Act there was also power to prevent the commission
of the offence of processing in an un-notified parade. The complaint which is made
of the police in the present case is that they were conscious of the first of those
powers, but they did not properly appreciate the existence and significance of the
second.
The factual background
11. Until 3 December 2012 the Union flag flew over Belfast City Hall throughout
the year. On that date the City Council decided that the flag should fly on certain
designated days only. That decision sparked a wave of protests throughout Northern
Ireland which continued for some months. The present appeal is concerned with
those protests which took place in Belfast and the policing operations that were
undertaken to deal with them.
12. After 3 December 2012, the protests in Belfast quickly took on a pattern.
Every week, protesters marched from a meeting point in East Belfast to Belfast City
Hall which is located in the centre of the city. That route took them through part of
the city known as Short Strand. Most residents in the Short Strand area are perceived
to be nationalist. Those taking part in the processions were loyalists. When the
protesters who had processed from East Belfast assembled at the City Hall, they
were joined by others who had found their way to the city centre by other means.
Some at least of these others joined the protesters from East Belfast on the march
back after the protest. Considerable numbers were involved in the parade which
passed through the Short Strand on its return to East Belfast, therefore. There was
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substantial violence and disorder as the parade went through that nationalist area.
Sectarian abuse was directed at the residents of Short Strand; stones and other
objects were thrown at them; and their homes were attacked. The appellant is a
resident in Short Strand and his and his neighbours’ homes have come under attack
during the parades that took place during December 2012 and January 2013.
13. On 4 December 2012 an initial decision was made that protesters should not
be permitted to enter Belfast city centre on Saturday 8 December when, as police
knew, a protest at the City Hall was planned. That decision had nothing to do with
stopping a parade or march. It was taken because it was considered necessary to
prevent disorder. It was felt that the “normal life” of the city centre should be
maintained because of the number of families and other members of the public who
would be gathered there “at a peak retail period”. The reputation of the city at a time
when inward investment was being encouraged was also a consideration.
14. In the period between 6 and 8 December police reflected on this decision.
That reflection led to a change of mind. In an entry of 7 December 2012 in an Event
Policy Book maintained by PSNI, the change in decision was explained. It was
considered that there was “a need to try and facilitate some form of protest at Belfast
City Hall to allow for some venting of anger and [relief of] community tension on
this issue”.
15. The parades therefore began on 8 December 2012 and, as earlier noted,
quickly developed into a weekly pattern. They continued until March 2013. Social
media alerted those who wished to participate of their timing and organisation. Until
March 2013, police took no action to stop them.
The affidavit evidence of Assistant Chief Constable Kerr
16. Soon after it had begun, a police strategy to deal with the flags protest was
devised. This was called “Operation Dulcet” and its leader, designated Gold
Commander, was Assistant Chief Constable Will Kerr of PSNI. Chief
Superintendent Alan McCrum was appointed Silver Commander. In a series of
affidavits filed in these proceedings, Mr Kerr has described how the police
developed and implemented plans to deal with the protest. In the first of these he
suggested that police have “no specific power to ban a procession” under the
relevant legislation. He stated that PSNI seeks to enforce conditions imposed by the
Parades Commission or a prohibition order by the Secretary of State for Northern
Ireland. Such an order may be made by the Secretary of State under article 5(1) of
the Public Order (Northern Ireland) Order 1987 (SI 1987/463 (NI 7)) in respect of
open air public meetings. Significantly. Mr Kerr stated that “in the absence of either
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a Parades Commission determination or prohibition from the Secretary of State,
PSNI can only have recourse to general public order policing powers”.
17. Having referred to a statement issued by the Parades Commission on 22
February 2013 (in which, among other things, the commission said that the “event”
in East Belfast had not been notified). Mr Kerr made the following statements in
paras 21 and 22 of his affidavit:
“21. This being the case and there having been no
determinations upon any of protests which have taken place
close to the Short Strand area, the PSNI have had to police the
situation in line with their powers outside of the statutory
scheme contained in the [Public Processions (Northern Ireland)
Act 1998].
22. PSNI also have regard to our general functions as
contained in Section 32 of the Police (NI) Act 2000 (‘the
P(NI)A’) wherein the general duties of the police are set out ie
to protect life and property, to preserve order, to prevent the
commission of offences and, where an offence has been
committed, to take measures to bring the offender to justice.
Human Rights considerations are included in decisions made
in respect of public order issues such as have arisen during the
flag protests. This includes but is not necessarily limited to
article 2 Rights (Life) wherein public order disturbances can
put this right at risk along with the article 8 Rights (Private
Life) of persons in the community and the article 11 Rights
(Assembly) of the protesters. The interaction between these
competing rights and the status of article 8 and 11 rights as
being qualified are all taken into account when operational
decisions are being made.”
18. Later in the same affidavit Mr Kerr said that where a public procession is not
notified under the Public Processions (Northern Ireland) Act 1998, those organising
the parade committed an offence under the Act. Tellingly, however, he continued,
“The role of PSNI in such situations is to collect evidence of such offences and refer
them to the prosecuting authorities while also employing public order and common
law powers to keep the peace” – para 39.
19. In a second affidavit, Mr Kerr said that PSNI had “consistently held the view
that parades can be stopped but not solely because they are unnotified.” In February
2013, a change in police policy in relation to the flag protests and in particular the
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marches coming from and returning to East Belfast occurred. Mr Kerr explained
how this came about in para 17 of his second affidavit:
“On the 14th of February, as part of the ongoing strategy
review, several changes were adopted, one was in respect of the
protests processing into the city centre and the other regarded
the charging policy … The considerations resulting in the
decision to stop the unnotified parade included the fact that
protests were continuing although with lower numbers, the
views of the CNR [Catholic/Nationalist/Republican]
community that the protests should be stopped, the wider
attitude in the PUL [Protestant/Unionist/Loyalist] community
that the protests had run their course and the likely reaction
from Loyalists would not be extreme as had been the case in or
around the 6th of December. In addition, the wish to have a
break in time between the protests and the main marching
season, the lack of any proper structure in the protests groups
whereby an agreed cessation could be settled, the resource
considerations in terms of our ability to manage and contain
any problems associated with stopping the protests and the
impact upon the residents of the Short Strand of the ongoing
protests.”
20. It should also be noted that what he described as the article 2 risks weighed
heavily with ACC Kerr in deciding to permit protestors in the city centre. In an
affidavit he said:
“Between the 6th of December and the 8th of December, the
decision not to permit flag protestors to move into the city
centre was changed. The rationale for this change was that risks
associated with doing so were too great. The intelligence at the
time informed us that had we stopped the protests from going
into the city centre that the risk to life posed by the resultant
disorder and violence posed too great an article 2 risk.”
The Service Procedure and the Event Policy Book
21. PSNI maintains a service procedure which gives guidance for dealing with
“public processions and protest meeting applications”. It is also intended to provide
“advice on the interaction between the Parades Commission and PSNI”. The service
procedure was issued on 31 March 2008 and amended and reissued on 9 June 2011.
An event is defined in the procedure as including any event or incident ranging from
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routine operational policing through to major disorder requiring a degree of
planning. When an event has been notified or the police become aware of an
intended event, a strategy meeting is held. At the first such meeting an Event Policy
Book is opened. Strategic decisions concerning the way in which an event is policed
should be recorded in this book. These include major decisions which have an
impact on an established strategy; major tactical decisions; any change in strategy;
and any issue or decision which may have legal consequences not already addressed
in the strategy plan.
22. Between 4 December 2012 and 30 April 2013, no fewer than 67 decisions
were taken as to how the parades and the associated disorder would be policed. A
record of each of the decisions taken and the reasons for them was made in the Event
Policy Book. We were referred to several of these. It is not necessary to advert to
more than a few of them.
23. On 6 December 2012 Mr Kerr, in an email to police colleagues about the
“movement of groups of protesters from various parts of the city towards Belfast
City Hall”, referred to “the rights and presumptions (sic) to peaceful protest, outlined
in articles 9 to 11 of ECHR”. He pointed out that these were not absolute rights and
that the degree of disorder experienced during protests on earlier evenings justified
preventing “known groups of protesters (from either community)” from entering
Belfast city centre. This was cited as an example of Mr Kerr’s appreciation that the
police were entitled to stop unnotified processions or parades. It is plainly not that.
To the contrary, the entire tenor of the email is directed towards the public order
powers of the police to prevent disorder even where that takes place under the guise
of the right to protest. The record of decision appearing in the Event Policy Book of
the same date to the effect that a “Gold Direction” was issued to prevent large
numbers of protesters moving towards the city centre prompts the same conclusion.
It does not address the question of parades at all, much less the legal powers of police
to stop them.
24. A change to the Gold Strategy was introduced in January 2013. This had two
aspects: more proactive engagement with protest groups so as to convey to them that
blocking the road was against the law; and avoiding the public impression that police
were “doing nothing”. Again, no reference was made to the circumstance that
participating in an unnotified parade was a criminal offence and that, where such an
event was reasonably apprehended, the police had powers to prevent it.
25. In January 2013, representations were received by PSNI from local
representatives of the Short Strand area in which it was suggested that police were
facilitating illegal parades. As is clear from the record of decision in the Event Policy
Book of 22 January 2013, instead of prompting PSNI to examine its legal powers to
stop an unnotified parade, this led to a discussion between ACC Kerr and the Chief
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Constable that “the appropriate means and mechanism” to determine how the Public
Processions (Northern Ireland) Act should be complied with was for PSNI and the
Parades Commission to seek legal advice. It had been agreed between the chairman
of the commission and Mr Kerr on 15 January 2013 that both sides should take
advice. A letter from Chief Superintendent McCrum to the chairman of the
commission on 19 January 2013 stated that un-notified processions that had been
occurring every Saturday were likely to continue and that the commission might
wish to take legal advice as to whether it “should be considering these in line with
the Public Processions (Northern Ireland) Act 1998.” This was followed up by a
letter in much the same terms on 23 January.
26. On 12 February 2013 Mr Kerr and another senior police officer met a member
of the Legislative Assembly of Northern Ireland who expressed concern about police
decisions “to facilitate the weekly parade past Short Strand”. The Event Policy
Book’s record of this meeting is to the effect that there were policing challenges in
dealing with these events, Human Rights Act considerations and “gaps” in the Public
Procession legislation. On 13 February 2013, a record was made that Mr Kerr was
considering whether judicial review proceedings should be brought on behalf of
PSNI in order to obtain “clarity on powers under the Public Processions Act”. It was
suggested that a judicial review application might act as “a catalyst to have weak
legislation … reviewed and possibly amended.”
27. On 14 February 2013 the Events Policy Book recorded for the first time
discussion of stopping the parade. Even then, there was no reference to police
powers to stop a parade which, because it had not been notified, was illegal. Indeed,
it referred to the “absence of a legislative (regulatory) fix” under the Public
Processions (Northern Ireland) Act.
ACC Kerr’s press interview
28. On 16 February 2013, a local paper, the Irish News, published a report of an
interview which one of its journalists had had with Mr Kerr on 14 February. An
incomplete transcript of the interview and handwritten notes made by PSNI staff are
available. In the course of the interview, Mr Kerr is recorded as saying that a
difficulty with the Public Processions Act was that it was “predicated at least in part
that everybody will consent to being regulated by that means … [and] if some people
decide that they don’t want to be regulated by those means it leaves a gap and that
gap at the minute is defaulting to policing and we don’t find that acceptable.”
29. Later in the interview Mr Kerr said that there was “no such thing as an illegal
parade under the Public Processions Act, it doesn’t exist.” He also said that the
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police had “no power to stop an illegal parade under the Public Processions Act, the
offence is taking part in an un-notified parade.”
30. On the contact between the police and the Parades Commission the Assistant
Chief Constable said that they had written to the commission in the hope that it
would take responsibility for dealing with the parade. The situation was “legally
complex” and that police would welcome “some judicial clarity” on what exactly
the Public Processions Act allowed people to do. The principal concern of the police
was not to be placed in the position of having to decide whether a parade should be
permitted to take place because they could “only make the decision based on a risk
or threat to life”.
The proceedings
31. The application for judicial review generated a substantial number of
affidavits. Apart from those of Assistant Chief Constable Kerr, the most significant
of these relate to exchanges between police and a local Sinn Fein councillor, Niall
O’Donnghaile. His council area includes Short Strand. He wrote to Chief
Superintendent McCrum on 8 January 2013 asking for information about
notification of the parades. He also inquired about the action PSNI intended to take
in the event that no notification had been given. In his response of 19 January Mr
McCrum confirmed that no notification of the parades had been received. In relation
to the action to be taken by PSNI, he said this:
“As regards the responsibility of PSNI to ensure that parades
and protests which have previously resulted in disorder do not
occur again, it is important to remember that PSNI do not
authorise parades or protests. I am sure you will agree with me
that it would be inappropriate in a democratic society for the
police to determine when people can protest. However, it is
important that the police take all feasible steps to maintain
order and PSNI are committed to continuing to do so.”
32. Again, as in the affidavits of ACC Kerr, no reference was made to the fact
that, by reason of the illegality of the parades under the 1998 Act, the police could
resort to common law powers and the statutory duty arising under section 32 of the
Police (Northern Ireland) Act 2000 to stop them from taking place. The emphasis
was, as before, on the maintenance of order.
33. In a careful and comprehensive judgment, [2014] NIQB 55, Treacy J
reviewed the relevant provisions of the 1998 Act; he referred to section 32 of the
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Police (Northern Ireland) Act 2000 which provides, among other things, that it is
the general duty of police to prevent the commission of crime; and he considered
the powers of arrest at common law referred to in article 26 of the Police and
Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)) to prevent
an imminent breach of the peace. The judge also painstakingly examined all the
evidence in the case, and in much greater detail than I have considered necessary for
the purposes of the appeal. He summarised the appellant’s submissions in a series
of propositions. A simple paraphrase of those may be expressed thus:
1. In failing to stop the weekly parades, PSNI had undermined the 1998
Act;
2. The police had been wrong to conclude that they did not have power
to stop the parades;
3. ACC Kerr had misunderstood the qualified nature of article 11 of
ECHR;
4. The attacks on the appellant’s home engaged his right under article 8
of ECHR. The state (in the form of its police force) had failed to discharge
its positive obligation to protect him from unjustified interference with that
right;
5. Operational decisions taken by PSNI were not immune from challenge
on the basis that they were taken within an area of discretionary judgment
since that had been wrongly informed by the belief that there was no power
to stop the parades; and
6. Operational discretion does not, in any event, provide an automatic
and blanket immunity – H v Commissioner of Police for the Metropolis [2013]
EWCA Civ 69; [2013] 1 WLR 3021. The circumstances of the present case
were quite different from those of E v Chief Constable of the Royal Ulster
Constabulary [2009] AC 536 where the appellant had to surmount the high
hurdle of showing that there was a positive obligation to prevent article 3 illtreatment. Furthermore, unlike the position in the present case, there was a
substantial body of evidence in E v Chief Constable of the Royal Ulster
Constabulary that policing the operation in that case differently might have
led to an extension of the protest to other locations and resulted in a risk to
lives of other civilians.
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34. Treacy J concluded that, in the period between 8 December 2012 and January
2013, ACC Kerr did not consider the option of stopping the weekly parades. PSNI
did not behave in a proactive manner to arrest and prosecute those who were
organising and participating in the parades. When he did come to consider police
action to stop them, Mr Kerr wrongly believed, the judge held, that he was inhibited
from doing so by the 1998 Act. The police officer was “labouring under a material
misapprehension as to the proper scope of police powers and the legal context in
which they were operating.” – para 127 of the judgment. The judge further found
that no evidence had been presented to him as to why police had “repeatedly
permitted violent loyalist ‘protesters’ to participate in illegal marches both to and
from Belfast City Centre on every Saturday between 8 December and 14 February
…” – para 122 of his judgment.
35. The judge found that a failure to notify the Parades Commission of an
intended parade invests the police with powers to prevent it from taking place. These
were equivalent to the powers available to police when parade organisers and
participants arrange and take part in parades where conditions imposed by the
Parades Commission had not been observed – para 134 of his judgment. ACC Kerr’s
purported distinction between the two scenarios was unsustainable, the judge said.
“Whether a parade was unlawful by reason of breach of a Parades Commission
determination or because of a decision to flout the notice requirement, should not
have led to a different police response. In each case the expectation is that the police
will seek to uphold the rule of law.” – para 135. The consequence of the police’s
failure to appreciate the extent of their powers to deal with the criminal offences of
organising and participating in non-notified parades had the effect, in the estimation
of the judge, of undermining the 1998 Act; it had led to a failure on the part of the
police to act in accordance with their obligations under section 32 of the Police
(Northern Ireland) Act 2000 and it gave rise to a violation of the appellant’s article
8 rights – para 137 of the judgment.
36. The Court of Appeal (Sir Declan Morgan LCJ, Girvan LJ and Weir J [2014]
NICA 56) allowed the Chief Constable’s appeal against the judgment of Treacy J.
The Lord Chief Justice, delivering the judgment of the court, also carefully
rehearsed the evidence about the various parades and the action taken by police in
relation to them. He quoted from a letter of 31 January 2013 sent by PSNI to the
appellant’s solicitors in response to their pre-action protocol correspondence. In it
the police had said:
“Professional policing decisions dealing with public order
issues are extremely complicated and require the balancing of
a wide range of competing interests. As recognised by the
European Court of Human Rights in its decision on the
admissibility in PF and EF v United Kingdom (23 November
2010) to require ‘the police in Northern Ireland to forcibly end
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every violent protest would likely place a disproportionate
burden on them, especially where such an approach could
result in the escalation of violence across the province. In a
highly charged community dispute, most courses of action will
have inherent dangers and difficulties and it must be
permissible for the police to take all of those dangers and
difficulties into consideration before choosing the most
appropriate response’.”
37. At para 34 of the judgment the Lord Chief Justice said that the central issue
in the case was whether the police response to the parades was based on the need to
take account of “the possibility of violence and disorder giving rise to article 2 risks
both in the immediate vicinity and in the wider Northern Ireland community”. For
reasons that I will give presently, I do not consider that this was in fact the central
issue in the appeal.
38. Having taken this as the starting point, the judgment proceeded to examine
the operational decisions taken by the police. This examination was conducted
against the backdrop of the decision of the House of Lords in E v Chief Constable
of the Royal Ulster Constabulary [2008] UKHL 66; [2009] AC 536 in which Lord
Carswell, drawing on the judgment of the European Court of Human Rights in
Osman v United Kingdom (1998) 29 EHRR 245, alluded to the many practical
difficulties that confronted police in dealing with protests and making arrests in
situations of riot or near riot. Having referred to Lord Carswell’s opinion on this
question, the Lord Chief Justice stated that the same approach should be taken by
the Court of Appeal “in considering the police conduct in this case”. It should also
be borne in mind that section 32 of the 2000 Act did not impose a requirement to
intervene on every occasion when a crime was being committed. The police had, he
said, “a wide area of discretionary judgment as to how they should respond” – para
41 of the judgment.
39. In relation to Treacy J’s conclusion that ACC Kerr had not addressed the
question of whether to stop the weekly parade, the Lord Chief Justice said that
“strategy documents indicate that there was ongoing consideration of the manner in
which this situation, which at that time extended throughout Northern Ireland,
should be managed.” – para 46.
40. Commenting on the judge’s view that ACC Kerr wrongly felt himself
inhibited by the 1998 Act from taking action to stop the parades, the Lord Chief
Justice suggested that this conclusion was based on two, essentially misconceived,
considerations. The first was that Mr Kerr had said, when interviewed by the Irish
News, that he had no power to stop an unnotified parade; the second was that the
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assistant chief constable had sought to encourage the Parades Commission to take
action in relation to the parades – para 49.
41. Dealing with the first of these reasons, the Lord Chief Justice said (at para 47
of the judgment):
“The interview on which the article was based explored a
number of aspects of the unnotified parades. ACC Kerr sought
to promote the primacy of the Parades Commission in the
regulation of all parades. He indicated that police did not want
to find themselves in the situation they were in prior to the 1998
Act. It was against that background that he noted that police did
not have power to stop an illegal parade under the 1998 Act.
He was correct about that. Such power lay only with the
Secretary of State. He noted that the offence under the Act was
taking part in an unnotified parade. That again was correct. He
went on to indicate that police were faced with having to make
decisions about the appropriate response to such parades on the
basis of a risk or threat to life. We do not consider that any
criticism can be made of that.”
42. The difficulty with this passage is that it does not address the point that
Treacy J had made. This was that, because ACC Kerr had not adverted to the
provision in the 1998 Act which made it illegal to organise or participate in an
unnotified parade (section 6(7)), and had failed to recognise that this provided police
with the power (and, indeed, the duty under section 32 of the 2000 Act) to prevent
this particular species of criminal activity, the option of stopping the parade for that
reason was not considered. Contrary to what the Lord Chief Justice said, the police
did have power to stop an unnotified parade precisely because participating in such
a parade was a criminal offence. Police have common law powers to prevent crime,
quite apart from their duty to do so under section 32.
43. The Lord Chief Justice said, in para 48, that ACC Kerr had initially decided
to prevent the parade coming into the centre of Belfast “which itself was an indicator
that he recognised his power to stop it.” As pointed out in para 23 above, however,
a proper understanding of what was said by Mr Kerr in his email of 6 December
2012 and the entry in the Event Policy Book of the same date, leads inevitably to
the conclusion that the police were not exercised about the question of stopping a
parade at all. Their concern was to prevent disorder in Belfast city centre and to stop
protesters converging there. Discussions about the tactical approach did not take
place in the context of an anticipated parade.
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44. On the second reason for the judge’s conclusion (the attempt by ACC Kerr
to engage the Parades Commission to deal with the unnotified parades), the Lord
Chief Justice said this at para 49:
“[Mr Kerr] hoped to persuade [the commission] that there was
some mechanism by which they could become involved in the
determination of the action to be taken in respect of such
parades. That certainly was the intention of the North
Committee. It is, however, agreed that there is no mechanism
by which the Parades Commission can take decisions for
unnotified parades. The management of such parades is the
responsibility of the police on the basis of their general public
order powers and their obligation to prevent crime including
crimes under the 1998 Act.”
45. Again, this does not deal directly with the judge’s consideration of the issue.
Treacy J had raised the question (in para 129 of his judgment) of Mr Kerr having
suggested that the Parades Commission take responsibility when, given that the
commission had no role because of the lack of notification about the parades, the
only agency that had the legal authority to stop the parade was PSNI. The
circumstance that it had been the intention of the North Committee that the Parades
Commission should be involved in the regulation of non-notified parades is not
relevant to ACC Kerr’s attempt to persuade the Parades Commission to do what
legally it could not. Trying to get the commission to intervene betokened a failure
on the part of Mr Kerr to understand that it was the police, not the commission, who
had responsibility under the law to prevent the parades from taking place.
46. In para 52 of the Court of Appeal judgment it is stated that that court had seen
a transcript of the interview of ACC Kerr by the Irish News and that this was not
available to Treacy J. In the same para it is also suggested that the Court of Appeal
had been taken through the police strategy documents and the Events Policy Book
in greater detail than had been opened to the trial judge. Ms Quinlivan QC, who
appeared for the appellant, disputed both those statements. It is not possible to assess
how detailed was the consideration before the judge of the various strategy
documents etc. But it is abundantly clear (and not disputed by Mr McGleenan QC
for the respondent) that the judge had seen the transcript of the interview. Indeed,
he quoted from it in para 73 of his judgment.
47. The Court of Appeal concluded that the 1998 Act had not been undermined
by the decisions and actions of the police in relation to the parades. It also decided
that the steps taken by the police to protect the article 8 rights of the appellant and
other residents of Short Strand were proportionate.
Page 16
The North report
48. In August 1996 the government commissioned an independent review of
contentious parades and marches in Northern Ireland. As earlier noted, the body
convened to conduct the review was chaired by Dr Peter North and its report,
published in January 1997, has become known as the North report. The Public
Processions (Northern Ireland) Act 1998 implemented the report, although not all of
its recommendations found their way into the legislation.
49. Before the 1998 Act police had responsibility for imposing conditions on
public parades. Article 3(1) of the Public Order (Northern Ireland) Order 1987
required a person proposing to organise a public procession to give seven days’
written notice of that proposal to the police. Article 4 of the 1987 Order provided:
“(1) If a senior police officer, having regard to the time or
place at which and the circumstances in which any public
procession is being held or is intended to be held and to its route
or proposed route, reasonably believes that –
(a) it may result in serious public disorder, serious
damage to property or serious disruption to the life of
the community; or
(b) the purpose of the persons organising it is the
intimidation of others with a view to compelling them
not to do an act they have a right to do, or to do an act
they have a right not to do,
he may give directions imposing on the persons organising or
taking part in the procession such conditions as appear to him
necessary to prevent such disorder, damage, disruption or
intimidation, including conditions as to the route of the
procession or prohibiting it from entering any place specified
in the directions.”
50. The North report concluded that a new independent body was required which
would replace the police as the organisation to decide whether a parade would take
place and, if so, under what conditions. The report was not solely concerned with
the identity of the body that would take decisions about whether parades should be
permitted to take place and under what conditions they ought to be allowed to
proceed. Public order considerations, which were intrinsic to the operation of the
Page 17
police powers to control processions under the 1987 Order, were no longer to be the
sole driver for determining whether and in what circumstances parades should be
permitted to take place, although the report did recommend that the police should
retain the power to intervene on public order grounds in “the extreme circumstances
of the determination of the Parades Commission being defied” – Chapter 12 para
12.124 of the report. Generally, however, the report considered that putting
emphasis on the question whether a particular parade might cause disorder ran the
risk of rewarding threats that such disorder would take place. New criteria were
required which should include the need to have regard to the impact that a parade
would have on relationships within the community.
51. The North report envisaged that parades should come to the Parades
Commission’s attention in any one of three ways – first on referral by the police;
second on the initiative of the commission itself; and third as a result of public
representation -Chapter 12 paras 12.55 et seq. As it happened, however, the structure
of the 1998 Act did not cater for the commission having power to make
determinations in relation to processions unless the police had been notified of a
parade and had sent a copy of the notice to the commission thereby triggering their
powers.
The Public Processions (Northern Ireland) Act 1998
52. The Parades Commission was established by section 1 of the 1998 Act. Its
functioning in relation to controlling public processions depends on receipt of a
notification of an intention to hold a parade. Section 6(1) of the Act provides that a
person proposing to organise a public procession shall give notice of that proposal
to a member of the police force; within a stipulated period (section 6(2)); in a
prescribed form (section 6(3)); and providing certain specified information (section
6(4)). By virtue of section 6(6) the Chief Constable is to ensure that the Parades
Commission is provided with a copy of the notice immediately.
53. Section 6(7) makes it an offence to organise or take part in a procession that
has not been notified. It provides:
“(7) A person who organises or takes part in a public
procession –
(a) in respect of which the requirements of this
section as to notice have not been satisfied; or
Page 18
(b) which is held on a date, at a time or along a route
which differs from the date, time or route specified in
relation to it in the notice given under this section,
shall be guilty of an offence.”
54. Section 8 gives the commission powers to impose on persons organising or
taking part in “a proposed public procession” such conditions as it considers
necessary. These may include conditions as to the route of the procession and
prohibiting it from entering any place. Section 9 gives the Secretary of State power
to review a determination by revoking or amending it. Section 11 empowers the
Secretary of State to ban processions in certain circumstances. This provision has
not been invoked during the life of the commission.
55. Although article 4(1) of the 1987 Order was repealed by the 1998 Act, the
recommendation that had been made in the North report that police should retain the
power to intervene on public order grounds if the determination of the Parades
Commission was defied, was not implemented. This does not mean, of course, that
the police could not have recourse to common law powers to stop a parade in order
to prevent disorder and to the duty under section 32 of the 2000 Act in order to avert
the criminal offence of participating in an unnotified parade contrary to section 6(7)
of the 1998 Act.
56. The Court of Appeal in para 19 of its judgment (perhaps in contrast to its later
statement in para 47 – see para 41 above) acknowledged that these powers were
available to PSNI but considered that the incomplete enactment of the North report
created a particular difficulty for the police:
“The North Report recognised that under its proposals there
would still remain that cohort of parades that were last minute
or unforeseen. It considered that in those circumstances the
parades should be controlled by police using their public order
powers. The problem for police, which the circumstances in
this case demonstrate, is that the partial implementation of the
North Report has left a larger cohort of parades outside the
Parades Commission’s jurisdiction. In particular, the PSNI
have to deal with unnotified parades using their available
public order powers including the right of arrest in respect of
the organisation or participation in such parades and the
prevention of such unlawful parades in accordance with the
duty under section 32 of the 2000 Act to prevent crime.”
Page 19
57. It is not clear why this should be regarded as a particular problem, at least in
terms of police operational decisions. When the correct legal position is understood,
namely that the police have power to stop parades to prevent disorder and to preempt breach of section 6(7) of the 1998 Act, the police strategy and tactics in
exercising those powers would have been similar, if not identical, to those which
they would deploy to prevent a parade from proceeding in a manner which did not
comply with a determination of the Parades Commission. Neither situation called
on the police to form a judgment as to whether a parade should take place. What
was required of them in both instances was a decision as to whether the parade was
taking place legally. If it was not, either because it did not comply with a
determination of the commission or because it had not been notified, their powers
were, to all intents and purposes, the same. And the operational decisions should not
have been any different, or, at least, certainly not on account of the fact that each
parade contravened the law in different ways or that the source of the power of the
police to stop the parade arose from different sections of the 1998 Act.
Article 11 of the European Convention on Human Rights
58. Article 11 of the European Convention on Human Rights and Fundamental
Freedoms (ECHR) provides:
“1. Everyone has the right to freedom of peaceful assembly
and to freedom of association with others, including the right
to form and to join trade unions for the protection of his
interests.
2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are
necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or
crime, for the protection of health or morals or for the
protection of the rights and freedoms of others. This article
shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, of the
police or of the administration of the State.”
59. ACC Kerr clearly regarded what he described as the “interaction” between
articles 8 and 11 of ECHR as important – see para 17 above. He also considered that
it was significant that both were qualified rights. During his interview with the Irish
News he had said:
Page 20
“The European Convention makes it very clear that there is a
right to peaceful assembly under article 11 of the European
Convention and the reasons it gets slightly confusing
sometimes is that the European Convention is explicitly clear
the Police Service has a responsibility to facilitate peaceful
protests even if it is technically unlawful and that’s where it
takes us in to the space of confusing rights.”
60. In Eva Molnar v Hungary (Application 10346/05) the European Court of
Human Rights (ECtHR) considered a complaint that the applicant’s rights under
article 11 had been infringed by police dispersing a peaceful demonstration in which
she had participated merely because prior notification of the protest had not been
given. At paras 34-38 ECtHR said this:
“34. The Court observes that paragraph 2 of article 11 entitles
States to impose ‘lawful restrictions’ on the exercise of the
right to freedom of assembly. The Court notes that restrictions
on freedom of peaceful assembly in public places may serve
the protection of the rights of others with a view to preventing
disorder and maintaining the orderly circulation of traffic.
35. The Court reiterates that a prior notification requirement
would not normally encroach upon the essence of that right. It
is not contrary to the spirit of article 11 if, for reasons of public
order and national security, a priori, a High Contracting Party
requires that the holding of meetings be subject to authorisation
(see Nurettin Aldemir v Turkey, nos 32124/02, 32126/02,
32129/02, 32132/02, 32133/02, 32137/02 and 32138/02
(joined), para 42, 18 December 2007).
36. However, in special circumstances when an immediate
response might be justified, for example in relation to a
political event, in the form of a spontaneous demonstration, to
disperse the ensuing demonstration solely because of the
absence of the requisite prior notice, without any illegal
conduct by the participants, may amount to a disproportionate
restriction on freedom of peaceful assembly (see Bukta, cited
above, paras 35 and 36). It is important for the public
authorities to show a certain degree of tolerance towards
peaceful gatherings if the freedom of assembly guaranteed by
article 11 of the Convention is not to be deprived of all
substance (see Nurettin Aldemir, cited above, para 46).
Page 21
37. Nevertheless, in the Court’s view, the principle
established in the case of Bukta cannot be extended to the point
that the absence of prior notification can never be a legitimate
basis for crowd dispersal. Prior notification serves not only the
aim of reconciling, on the one hand, the right to assembly and,
on the other hand, the rights and lawful interests (including the
right of movement) of others, but also the prevention of
disorder or crime. In order to balance these conflicting
interests, the institution of preliminary administrative
procedures is common practice in member states when a public
demonstration is to be organised. In the Court’s view, such
requirements do not, as such, run counter to the principles
embodied in article 11 of the Convention, as long as they do
not represent a hidden obstacle to the freedom of peaceful
assembly protected by the Convention (see Balcik v Turkey, no
25/02, para 49, 29 November 2007).
38. The Court therefore considers that the right to hold
spontaneous demonstrations may override the obligation to
give prior notification to public assemblies only in special
circumstances, namely if an immediate response to a current
event is warranted in the form of a demonstration. In particular,
such derogation from the general rule may be justified if a delay
would have rendered that response obsolete.”
61. ACC Kerr’s belief that PSNI was obliged by article 11 of ECHR to facilitate
peaceful protests even if they were “technically illegal” was therefore misplaced.
ECtHR has made it clear that, in general, a requirement to notify an intention to hold
a parade and a decision to disperse a parade or protest which has not been notified
will not infringe article 11. There was no warrant for allowing article 11
considerations to determine how these parades should be policed.
62. Ms Quinlivan submitted that the 1998 Act “occupies the field” for virtually
all planned demonstrations in Northern Ireland. She also claimed that, in relation to
protests such as involved in the parades here, the vital ingredient of spontaneity
(which might absolve organisers of the need to notify) was missing. In both
propositions she is clearly right. The 1998 Act is the considered response of
Parliament to the intractable problem of parades in Northern Ireland. Fundamental
to its successful operation is the requirement that there be notification of parades,
especially those which are likely to be contentious or to provoke disorder. The
parades in this case were far from peaceful. The police had no obligation to facilitate
them. To the contrary, they had an inescapable duty to prevent, where possible, what
were plainly illegal parades from taking place and to protect those whose rights
under article 8 of ECHR were in peril of being infringed. Meeting those obligations
Page 22
had to be tempered by operational constraints, of course. Stopping the parades
without taking account of what further violence that might provoke was not an
option. But the operational difficulties required to be assessed in the correct legal
context. PSNI had to have a clear-sighted appreciation of their available powers and
an equally percipient understanding of the fact that the Parades Commission had no
power to intervene. I shall discuss this in more detail in the next section of this
judgment.
Undermining the 1998 Act
63. Failure to notify a proposed parade strikes at the heart of the effective
functioning of the Parades Commission and therefore at the successful
implementation of the 1998 Act. This Act represented, as Ms Quinlivan put it, a
paradigm shift away from the old system where police were drawn into the
controversial role of deciding which parades should be permitted to take place and
under what conditions they should be allowed to proceed. Enforcing the legal
requirement of notifying an intention to hold a parade was not less than vital to the
success of the new venture. A premium had to be placed on preserving the integrity
of that requirement.
64. Unfortunately, ACC Kerr and his colleagues failed to recognise this central
truth. There is no reference to section 6(7) of the 1998 Act in the many entries in the
Event Policy Book. Instead, the focus was on the need to recognise the competing
claims under articles 8 and 11 of ECHR; the so-called gaps in the 1998 legislation;
the need to engage the Parades Commission in some role in controlling the parades;
the lack of power on the part of the police to ban parades; the need to “police the
situation outside of the statutory scheme”; that the role of the police was to collect
evidence of such offences and refer them to the prosecuting authorities; that the
parades could not be stopped solely because they were unnotified; that there was
“no such thing as an illegal parade under the Public Processions Act”; and that the
situation was legally complicated and judicial clarification was needed.
65. The situation was not legally complicated, although, in fairness to ACC Kerr
this is a judgment that can be made in confidence now, with the benefit of close
attention to the text and effect of the 1998 Act. But, having had the opportunity to
consider these and the powers of the police both at common law and under section
32 of the 2000 Act, it can be assuredly said that there is no reason to suppose that
the avowed gaps in the 1998 Act were other than the product of deliberate legislative
intention. Likewise it must now be clearly understood that the Parades Commission
had no role where a proposed procession had not been notified. The attempt to
persuade the commission to become involved was misconceived. The police did not
have power to ban the parades but they had ample legal power to stop them. Contrary
to ACC Kerr’s stated position, they could indeed be stopped solely because they
Page 23
were unnotified. There certainly was such a thing as an illegal parade under the
Public Processions Act.
66. All of that is quite different from saying that police decisions undermined the
1998 Act, however. Clearly, there was no considered intention to weaken the effect
of the Act. The view of ACC Kerr and his colleagues on what were perceived to be
shortcomings of the Act and their lack of powers to stop the parades were the result
of misapprehension of the true legal position rather than a wilful disregard for it. It
is true, of course, that the Loyal Orange Order, in light of PSNI’s response to the
unnotified parades, considered adopting a policy of not notifying the commission of
intended parades, contrary to their previous practice of doing so. But that does not
signify in the debate as to whether the 1998 Act was in fact undermined. As it
happens such a policy was not adopted by the Orange Order.
67. The power of the police to stop a parade which has not been notified has been
a consistent thread that runs through the judgments of Treacy J, of the Court of
Appeal and of this court, although the emphasis on the importance of this may have
varied. Whatever may have been the misapprehension of the police as to their
powers to stop a parade which had not been notified, the legal position is now clear.
The 1998 Act has not been undermined.
The central issue
68. The Lord Chief Justice considered that the central issue in the case was
whether the police response to the parades was based on the need to take account of
“the possibility of violence and disorder giving rise to article 2 risks both in the
immediate vicinity and in the wider Northern Ireland community”. One can
understand why this might have been considered to be the dominant question. But it
is now clear that the crucial issue was whether there was a proper understanding on
the part of the police as to the extent of their legal powers.
69. Of course, there were many pressing concerns about the possibility of
increased violence if the police attempted to stop the parades. But this must not
distract from what was the true issue in the case. That was “did the police approach
the difficult decision of whether to stop the parades with a proper understanding of
their legal powers”. If they wrongly considered that there were limits on their powers
to do so, this would inevitably cloud their judgment on that critical question.
70. For the reasons that I have given, I consider that Treacy J was right in his
conclusion that the police laboured under a misapprehension as to the extent of their
powers and on that account alone the appeal must be allowed.
Page 24
Operational discretion
71. It is universally agreed that PSNI must have operational discretion to make
policing decisions. Treacy J accepted this in para 120, after citing the well-known
passage from para 116 of ECtHR’s judgment in Osman v United Kingdom (1998)
29 EHRR 245. The Court of Appeal dealt with the same issue in paras 38-41 of its
judgment. It is also generally accepted, however, that operational discretion does
not equate to immunity from judicial scrutiny of policing decisions. As Lord Dyson
MR said in H v Commissioner of Police of the Metropolis v ZH [2013] 1 WLR 3021
at para 90:
“… operational discretion is important to the police. … It has
been recognised by the European court: see [(2012)] Austin v
United Kingdom 55 EHRR 359, para 56. And I have kept it well
in mind in writing this judgment. But operational discretion is
not sacrosanct. It cannot be invoked by the police in order to
give them immunity from liability for everything that they do.”
72. The debate in the present case has centred on how judicial scrutiny of the
policing decisions taken about these parades should be conducted. The appellant
suggested that the discretion was circumscribed by the imperative of ensuring the
full effectiveness of the 1998 Act. The area of discretion available to the police was
also constrained by the positive obligation to protect the appellant’s article 8 rights,
Ms Quinlivan argued. She claimed that policing decisions in this context had to
satisfy a requirement of proportionality. In advancing this claim she relied on what
had been said by Lord Carswell in E v Chief Constable of the Royal Ulster
Constabulary [2009] AC 536. That case was concerned with attempts by “loyalist”
protesters in Belfast to prevent Catholic parents from taking their normal route on
foot through a loyalist area to a Catholic girls’ primary school. The appellant had
challenged what she claimed was the failure of police to discharge their positive
obligation to protect her and her daughter against the infliction upon them of
inhuman and degrading treatment within the meaning of article 3 of ECHR. Having
considered R (Daly)v Secretary of State for the Home Department [2001] 2 AC 532,
Huang v Secretary of State for the Home Department [2007] 2 AC 167 and R (SB)v
Governors of Denbigh High School [2007] 1 AC 100, Lord Carswell said this at
para 54:
“… [these cases] all concerned the compatibility of decisions
of an administrative character with the Convention rights of
those affected by them. Nevertheless, the essential point
established by them is that the Smith test [see R v Ministry of
Defence, Ex p Smith [1996] QB 517, 554] is insufficiently
intense and that the actions of the police in the present case
Page 25
have to pass the test of proportionality, which must be decided
by the court.”
73. Ms Quinlivan criticised the judgment of the Court of Appeal in the present
case on the basis that it had failed to consider whether the actions of the police passed
the test of proportionality. It is true that the court did not refer to the question
whether the police actions were proportionate but it appears to have accepted that
the appellant’s article 8 rights were engaged and the Lord Chief Justice referred on
more than one occasion to Lord Carswell’s judgment in E so it is difficult to
conclude that he did not have the question of proportionality in mind.
74. Whatever of that, it seems to me that there is something of an air of unreality
about discussing the question of proportionality given that PSNI had wrongly
construed their powers under the 1998 Act and the Court of Appeal failed to so find.
Like so much else involved in judicial review of police actions, proportionality
depends on context and PSNI had set themselves the wrong context in which to
make decisions. Ms Quinlivan was therefore inclined to accept that a finding that
the police had failed to recognise the true breadth and nature of their powers under
the legislation would render discussion of the discretionary area of judgment less
than central to the case. She was right to do so. What might be considered
proportionate if the police view of the limits on their powers was correct might be
considered not to be so if they had recognised the full panoply of controls that were
in fact available. Discussion of what might have been proportionate in those
circumstances is unlikely to be helpful. So too is speculation about what the police
ought to have done if they had a proper understanding of the powers available to
them.
75. One can say that proportionality has certainly a role to play in assessing
whether police actions have fulfilled their positive obligation to protect the
appellant’s article 8 rights. One may also say that police took an active and
continuing approach to the question of how to deal with the parades. Many officers
were injured in the course of policing the flags protest. Many participants were
arrested and successfully prosecuted. Constant review of the proper tactical
approach was undertaken.
76. A definite area of discretionary judgment must be allowed the police. And a
judgment on what is proportionate should not be informed by hindsight. Difficulties
in making policing decisions should not be underestimated, especially since these
frequently require to be made in fraught circumstances. Beyond these generalities, I
do not consider it useful to go.
Page 26
77. Treacy J has said (in para 136) that the policing operation was characterised
by “an unjustified enforcement inertia”. I do not understand him to suggest that this
was the result of studied indifference or deliberate lack of response to the very
difficult situation faced by the residents of Short Strand. The absence of a more
proactive approach was due to a concatenation of unfortunate circumstances. These
included the misunderstanding by PSNI of the powers available to them; their failure
(at least in the early stages) to appreciate that the Parades Commission was
powerless to intervene; a lack of insight into the central importance of ensuring that
unnotified parades were not permitted to take place; the placing of too great an
emphasis on the possible article 11 rights of protesters; and that the matter of
controlling unnotified parades was legally complicated.
Review by an appellate court of findings at first instance
78. On several occasions in the recent past this court has had to address the issue
of the proper approach to be taken by an appellate court to its review of findings
made by a judge at first instance. For the purposes of this case, perhaps the most
useful distillation of the applicable principles is to be found in the judgment of Lord
Reed in the case of McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477.
In para 1 of his judgment he referred to what he described as “what may be the most
frequently cited of all judicial dicta in the Scottish courts” – the speech of Lord
Thankerton in Thomas v Thomas [1947] AC 484 which sets out the circumstances
in which an appeal court should refrain from or consider itself enabled to depart
from the trial judge’s conclusions. Lord Reed’s discourse on this subject continued
with references to decisions of Lord Shaw of Dunfermline in Clarke v Edinburgh &
District Tramways Co Ltd 1919 SC (HL) 35, 36-37, where he said that an appellate
court should intervene only it is satisfied that the judge was “plainly wrong”; that of
Lord Greene MR in Yuill v Yuill [1945] P 15, 19, and that of Lord Hope of Craighead
in Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1, para 17
where he stated that:
“It can, of course, only be on the rarest occasions, and in
circumstances where the appellate court is convinced by the
plainest of considerations, that it would be justified in finding
that the trial judge had formed a wrong opinion.”
79. Lord Reed then addressed foreign jurisprudence on the topic in paras 3 and 4
of his judgment as follows:
“3. The reasons justifying that approach are not limited to the
fact, emphasised in Clarke’s case and Thomas v Thomas, that the
trial judge is in a privileged position to assess the credibility of
Page 27
witnesses’ evidence. Other relevant considerations were
explained by the United States Supreme Court in Anderson v
City of Bessemer (1985) 470 US 564, 574-575:
‘The rationale for deference to the original finder of fact
is not limited to the superiority of the trial judge’s
position to make determinations of credibility. The trial
judge’s major role is the determination of fact, and with
experience in fulfilling that role comes expertise.
Duplication of the trial judge’s efforts in the court of
appeals would very likely contribute only negligibly to
the accuracy of fact determination at a huge cost in
diversion of judicial resources. In addition, the parties to
a case on appeal have already been forced to concentrate
their energies and resources on persuading the trial
judge that their account of the facts is the correct one;
requiring them to persuade three more judges at the
appellate level is requiring too much. As the court has
stated in a different context, the trial on the merits
should be “the ‘main event’ … rather than a ‘tryout on
the road.’” … For these reasons, review of factual
findings under the clearly erroneous standard – with its
deference to the trier of fact – is the rule, not the
exception.’
Similar observations were made by Lord Wilson JSC in In re
B (A Child) [2013] 1 WLR 1911, para 53.
4. Furthermore, as was stated in observations adopted by
the majority of the Canadian Supreme Court in Housen v
Nikolaisen [2002] 2 SCR 235, para 14:
‘The trial judge has sat through the entire case and his
ultimate judgment reflects this total familiarity with the
evidence. The insight gained by the trial judge who has
lived with the case for several days, weeks or even
months may be far deeper than that of the Court of
Appeal whose view of the case is much more limited
and narrow, often being shaped and distorted by the
various orders or rulings being challenged.’”
Page 28
80. The statements in all of these cases and, of course, in McGraddie itself were
made in relation to trials where oral evidence had been given. On one view, the
situation is different where factual findings and the inferences drawn from them are
made on the basis of affidavit evidence and consideration of contemporaneous
documents. But the vivid expression in Anderson that the first instance trial should
be seen as the “main event” rather than a “tryout on the road” has resonance even
for a case which does not involve oral testimony. A first instance judgment provides
a template on which criticisms are focused and the assessment of factual issues by
an appellate court can be a very different exercise in the appeal setting than during
the trial. Impressions formed by a judge approaching the matter for the first time
may be more reliable than a concentration on the inevitable attack on the validity of
conclusions that he or she has reached which is a feature of an appeal founded on a
challenge to factual findings. The case for reticence on the part of the appellate court,
while perhaps not as strong in a case where no oral evidence has been given, remains
cogent. In the present appeal, I consider that the Court of Appeal should have
evinced a greater reluctance in reversing the judge’s findings than they appear to
have done.
Conclusion
81. I would reverse the decision of the Court of Appeal and make a declaration
that, in their handling of the flags protest in Belfast during the months of December
and January, PSNI misconstrued their legal powers to stop parades passing through
or adjacent to the Short Strand area.
