Public order cases involving protests have always sparked controversy, with the collision between the state’s responsibility to ensure the smooth running of civil society and the individual citizen’s right to draw attention to what they regard as a pressing moral concern.
The optics on this are tricky. Protesters giving up their time and energy to raise attention; police moving them on. Which do we support, freedom of physical movement or free expression of thoughts?
There is a welter of debate and criminal legislation behind public protest action and this or that provision that authorises arrest. With this case I want to focus attention on what exactly triggers a prohibition of public protest under Section 59 of the Anti-social Behaviour, Crime and Policing Act of 2014. This provision allows councils to local authorities to issue a “Public Service Protection Order (“PSPO”) to prohibit public protests if they are satisfied that these are “detrimental” to the quality of life of “those in the locality”. Anyone who fails to comply with the requirements of a PSPO or to violate any prohibition contained in the order is liable to a fine of £1000.
In the case of Dulgheriu & Anor v The London Borough of Ealing ( EWCA Civ 1490) the Court of Appeal dismissed a challenge to one of these PSPOs prohibiting anti-abortion protests in the immediate vicinity of Marie Stopes’ UK West London Centre. The Court concluded that the judge below had been correct to find that the pro-life activists’ activities had a detrimental effect within the meaning of s.59 of the 2014 Act. The Article 8 rights of the women wanting to access the clinic’s abortion procedures had been engaged and outweighed the pro-life activists’ rights under Articles 9, 10 and 11.
Legal and factual background
Chapter 2 of the 2014 Act empowers local authorities to make PSPOs if the two main conditions in section 59 are met.
The first condition is that:
(i) activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality, or
(ii) it is likely that activities will be carried on in a public place within that area and that they will have such an effect
The second condition is that if the effect of the activities is or is likely to be
(i) of a persistent or continuing nature
(ii) is, or is likely to be, such as to make the activities unreasonable, and
(iii) justifies the restrictions imposed by the notice.
Two issues lay at the heart of this appeal:
(i) whether a local authority had the power to make a PSPO where the activity to be regulated impacted only or primarily on the quality of life of occasional visitors to the locality rather than on those who reside or work in the locality or visit it regularly; and
(ii) whether the restrictions imposed by the PSPO were compatible with the rights to freedom of religion, expression and assembly under the European Convention on Human Rights.
The appellants had for many years congregated immediately outside the Marie Stopes clinic to persuade the women visiting it from having abortions. They did this by trying to dissuade them from entering the clinic, handing out leaflets, displaying posters depicting foetuses at various stages of gestation and holding group vigils. Pro-choice activists also protested outside the clinic. The local authority unsuccessfully encouraged the opposing groups to reach a compromise. It launched a public consultation which concluded that the activities outside the clinic were having a detrimental effect on the locality. Witnesses submitted evidence of the activists’ behaviour including:
- The display of lifelike foetus dolls;
- Threats that users of the Centre would go to Hell;
- Referring to users of the Centre as “Mum”.
- The handing out of rosary beads to users and passers-by;
- Pursuing users of the Centre with leaflets;
- Not leaving users with enough room to pass into the Centre;
- The playing of loud music and chanting from pro-choice activists;
- The taking of photographs of persons using the clinic;
- Young children passing by exposed to images of foetuses.
Ealing imposed a PSPO which prohibited all abortion-related protests within a substantial safe zone around the clinic save as to limited protest within a designated area 100 metres away from the clinic entrance.
The judge rejected the appellants’ challenge to the validity of this order.
Arguments before the Court of Appeal
The appellants submitted that the judge had erred in a number of respects, including
- holding that the phrase “those in the locality” in s.59(2)(a) of the Act applied to occasional visitors such as women who visited a clinic for abortion procedures;
- holding that the Article 8 rights of those using the clinic were engaged;
- giving too little weight to the appellants’ rights under Articles 9, 10 and 11 of the Convention, when considering whether the PSPO constituted an interference that was necessary in a democratic society.
- giving insufficient consideration to whether the terms of the PSPO could have been formulated in a less restrictive way.
The Court of Appeal’s decision
It was clear from the terms of the Act that Parliament had deliberately decided not to limit the expression “those in the locality”. There was no reason to construe “those in the locality” as narrowly as those who lived and worked in the area. The appellants had relied upon the view of May J in Summers v London Borough of Richmond Upon Thames  EWHC 782 (Admin),  1 WLR 4729, at , that the expression “those in the locality” in section 59 of the 2014 Act “must be read to include those who regularly visit or work in the locality, in addition to residents”.
But the expression “those in the locality” in s.59 covered not only residents and those who regularly visited or worked in the locality but also others depended on the precise local circumstances. Such a rigid and hard edged limitation as that for which the appellants contended,
would also apparently apply to patients in hospitals and hospices and medical services generally and those visiting such patients, would not only be unworkable in practice in distinguishing regular from irregular visitors but would potentially produce considerable uncertainty as to the legality of a PSPO and is highly unlikely to have been the intention of Parliament.
That interpretation was not consistent with the Home Office’s statutory guidance on PSPOs. Turner J in the court below had found that some of those who visited the clinic had been left with significant emotional and psychological damage which has lasted substantial periods of time due to the protestors’ conduct ( EWHC 1667 (Admin)). The local authority had therefore been correct to interpret the expression “those in the locality” in s.59(2)(a) as capable of embracing occasional visitors and to decide that the women, their family members and supporters visiting the clinic fell within that section.
The appellants also contended that the Article 8 rights of the visitors to the Centre had not been engaged. They submitted, inter alia, that the activities which were the subject of the PSPO were in a public place, and that the activists were doing no more than taking advantage of a public highway. They had not kept any record or publication of what the women visiting the clinic were doing. Finally, they sought to convince the court that there could be no expectation on the part of the service users that they would not engage with those who entered the Centre, as abortion is a controversial topic of general public importance. On the contrary, the expectation was that there would be some engagement by protesters with those seeking to use the services of the Centre.
The Court of Appeal disagreed. A woman’s decision whether to have an abortion is an “intensely personal and sensitive matter” which falls within Article 8. This has been repeatedly confirmed both by local courts and the ECtHR (P v Poland  ECHR 1853). In Re Northern Ireland’s Human Rights Commission’s application for judicial review  UKSC 27,  1 All ER 173 at  Lady Hale observed that
for those women who become pregnant, or who are obliged to carry a pregnancy to term, against their will, there can be few greater invasions of their autonomy and bodily integrity.
The protestors’ activities therefore engaged the Article 8 rights of those visiting the clinic both in terms of their right to autonomy in wishing to carry through their decision to have an abortion and their reasonable desire and legitimate expectation that their visit would not receive any more publicity than was inevitably involved in accessing and leaving the clinic across a public space and highway.
As for the appellants’ rights to manifest their religion or beliefs under Article 9, there was no question that these were engaged, and the judge below had not underplayed their significance. The Article 9 rights could not have carried more weight in the balancing exercise than the protestors’ rights under Articles 10 and 11 to which the local authority was required by s.72 to have regard when deciding whether to make the PSPO.
Engagement of the protestors’ Article 9 rights could not have tipped the balance against the making of the PSPO if the local authority had otherwise been justified in making it.
Finally, the CA concluded that the judge had been entitled to find that, on the particular facts of the case, the Article 8 rights of the service users visiting the clinic outweighed the rights of the appellants and other pro-life protestors under Articles 9, 10 and 11, and that the terms of the PSPO were proportionate. Furthermore, the PSPO’s terms were not impermissibly vague or excessive.
This case shines a light on one of the most contentious issues of our time: the policing of ideas. However much one may disapprove of the activities of the protesters, none of them were actively preventing a legal abortion taking place. Startling children with pictures of foetuses may be in bad taste, but it’s not illegal. Whichever side one stands on the pro-life/pro-choice divide, it’s worth a thought experiment. Would extinction rebellion fit within the criteria for PSPO? What about anti- or pro-Brexit marches, etc?
The Home Office statutory guidance document describes the purpose of PSPOs thus:
Public Spaces Protection Orders are intended to deal with a particular nuisance or problem in a specific area that is detrimental to the local community’s quality of life, by imposing conditions on the use of that area which apply to everyone. They are intended to help ensure that the law- abiding majority can use and enjoy public spaces, safe from anti-social behaviour.
The objective of this legislation is to “put victims first”. In the context of public protests, this means that
In deciding to place restrictions on a particular public space, councils should consider the knock on effects of that decision and ensure that this is a reasonable and proportionate response to incidents of anti-social behaviour in the area. Introducing a blanket ban on a particular activity may simply displace the behaviour and create victims elsewhere.
As the guidance document points out, anti-social behaviour powers should only be exercised with “due regard to issues of proportionality: is the restriction proposed proportionate to the specific harm or nuisance that is being caused?”
The Extinction Rebellion protests which started in April 2019 have continued and extended across central London. Initially, the police issued numerous orders under the Public Order Act 1986 to move the climate protestors to an area near Marble Arch and limit their ability to disrupt transport networks. The process of issuing orders and arresting those who were non-compliant was slow and some commentators questioned why the police were not using force to move the protestors. The police response was that they had “no legal basis to do so”:
These are peaceful protesters; while disruptive their actions are not violent towards police, themselves or other members of the public. We are looking at other tactics such as tighter police cordons, but again that is resource intensive in terms of officer numbers and more often than not it just shifts the protesters to another location nearby, and does not assist in reopening roads. (House of Commons Library Briefing Paper, No. 03658, 2 May 2019 “Protests around Parliament”)
Since the referendum on Britain’s membership of the European Union in 2016 protestors have regularly gathered in and around Parliament Square to demonstrate both in favour and against Brexit. College Green and other parts of this area are governed by specific legislation that governs protest near parliament. But the Metropolitan Police Commander assured the Joint Committee on Human Rights that officers had not engaged in the confrontations with MPs outside parliament because “the criminal threshold had not been reached”.
With regard to the ER protests, Adrian Usher told the JCHR that “the legislation associated with policy protest is quite dated … policing and protest has moved on and …legislation should follow suit”.
Perhaps legislation has moved a little too far, from the prevention of illegal action to the deplatforming of unpopular ideas.
This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks