Judgment - Regina v. Chief Constable of Sussex EX Parte International Trader's Ferry Limited   continued

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      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 W.L.R. 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 W.L.R. 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:

      "The true rule, in my judgment is as follows. In deciding how to exercise his public duty of enforcing the law, and of keeping the peace, a chief constable has a discretion, which he must exercise even-handedly. Provided he acts within his discretion, the courts will not interfere;. . . . In exercising that discretion a chief constable must clearly have regard to the resources available to him."

      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, (c) the rights of others in his area and their protection, (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:

     "There may well be important and sound reasons for a chief constable's decision not to commit all his force's resources to, nor to exercise his full legal powers in, a given dispute or demonstration." 60 M.L.R. 394, 409.

      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 Q.B.D. 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.

     "What has happened here is that an unlawful organisation has assumed to itself the right to prevent the appellants and others from lawfully assembling together, and the finding of the justices amounts to this, that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act." (page 314).

      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:

     "Furthermore, the police have a duty to prevent reasonably apprehended and imminent breaches of the peace, and failure to obey instructions reasonably directed to that end constitutes the offence of obstructing a constable in the execution of his duty. That being so, the decision in Beatty v. Gillbanks tells us nothing about how the very wide discretion to act preventively in apprehension of a breach of the peace should be exercised."

      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.