|Judgment - Regina v. Chief Constable of Sussex EX Parte International Trader's Ferry Limited continued|
I agree, as Mr. Roth Q.C. submits, that here the onus is on the Chief Constable to establish that Article 36 is satisfied so that he must show that the decisions he took were "justified on grounds of. . . public policy" and that the exceptions to a fundamental rule of the Treaty like Article 34 must not be liberally interpreted or applied.
In a detailed analysis of many of the Court's decisions he says that, even if upholding the rule of law can be a public policy ground under Article 36, "balanced policing is something fundamentally different and that the rule of law is itself clearly threatened when the actions of private interest groups are able persistently and directly to prevent the exercise of freedom guaranteed by law." In none of the European Court's decisions is lack of funding accepted as an excuse for not protecting one of the freedoms created by the Treaty such as Article 34. He relies in particular on Reg. v. Bouchereau (Case 30/77)  E.C.R. 1999, 2014, para. 35:
He also relies on what was said by Advocate General van Thenaat in Cullet v. Centre Leclerc Toulouse (Case 231/83)  E.C.R. 305, 312:
Even if, contrary to I.T.F.'s submissions, the Chief Constable can establish that his decisions were not unreasonable in a Wednesbury sense, the investigation as to whether, for the purposes of Community law he can show that his decisions were suitable, necessary and not disproportionate to the restrictions which they involve, requires a more intensive review. Accordingly the Chief Constable, he submits, must show that there was no other course open to him that would have had less restrictive effect on rights under Article 34. None of these tests, he says, was satisfied here and the Divisional Court were right to say that the Chief Constable had to prove, and had not proved, that he could not get more money from the Home Office.
Quantitative restrictions "justified on grounds of public policy" include not just situations where there is something inherently bad about the activity itself which justifies the restriction but also where the broader requirements of public policy, here the maintenance of public order, justify steps being taken which so long as proportionate may have a restrictive effect.
I.T.F. argues, however, that "it was not a suitable or proportionate pursuit of the objective of balanced policing in Sussex to give a clear signal to unlawful protestors that the Chief Constable would allow their unlawful conduct to have its intended effect of restricting exports from Shoreham except on 2 days per week or to threaten lawful traders with arrest if they did not conform to this policy" (case 89).
All the cases to which your Lordships have been referred have to be considered now in the light of the important judgment of the European Court of Justice in Commission of the European Communities v. French Republic (Case C-265/95, judgment of 9 December 1997). In that case the Commission claimed that France had failed to fulfil its obligations under the common organisation of the markets in agricultural, products and under Article 30, in conjunction with Article 5, of the E.C. Treaty. The Commission's case was that there had been for more than a decade violent acts committed by individuals and by protest movements of French farmers directly against agricultural products from other Member States. Lorries were damaged, their loads destroyed, shops selling the goods were threatened and the goods damaged. From 1993 there was "a systematic campaign to restrict the supply of agricultural products from other Member States" (judgment paragraph 3). It was said by the Commission that the French Government had failed to take adequate or proportionate measures to deter the perpetrators of such offences. The Government's reply was that it had condemned the acts, brought criminal prosecutions and monitored what was happening. None the less the European Court found "it is a fact that, year after year, serious incidents have gravely jeopardised trade in agricultural products in France" (paragraph 44), that some incidents went on for several hours and that only a very small number of the persons who had participated in such offences have been prosecuted.
The Court held that Article 30 "also applies where a Member State abstains from adopting the measures required in order to deal with obstacles to the free movement of goods which are not caused by the State. . . . Article 30 therefore requires the Member States. . . . when read with Article 5 of the Treaty, to take all necessary and appropriate measures to ensure that that fundamental freedom is respected on their territory" (paragraphs 30 and 32). France had "manifestly and persistently abstained from adopting appropriate and adequate measures to put an end to the acts of vandalism which jeopardise the free movement on its territory" of agricultural products from other Members States. (paragraph 65) It was held to have failed in its Treaty obligations.
The facts of that case and the steps taken which the authorities took or failed to take are very different from the facts here but the Court made it clear that when it comes to taking all necessary and appropriate measures to ensure that the fundamental freedom contained in Article 30 is respected on its territory:
At paragraph 56 of the judgment the Court said:
I do not accept that the Court is here saying that in every case where steps have to be taken by a Member State a court must consider whether, somehow, the Member State could have found, somewhere, the money necessary to take steps which could theoretically have been taken. If that were so the State could always in theory call upon moneys allocated for education or health or defence and use them for this kind of purpose. That cannot have been intended. It would in any event require an investigation as to whether other competing claims for money allocated allowed moneys to be taken away from other areas of government. That is an impossible inquiry for the court to undertake and I think is an unreasonable exercise for the Member State itself to be required to undertake.
What is required in a case like the present where the Chief Constable has statutory and common law duties to perform is to ask whether he did all that proportionately and reasonably he could be expected to do with the resources available to him. He is after all dealing with an emergency situation and there is no question of funds being deliberately withheld by the State to hamper his work. The budget for the Authority was a very large one and it was for him to decide how he would use the moneys apportioned to him. These decisions have to be taken on the information available at the time. It is not right, in my view, that there should be an ex post facto examination of accounts to see whether, in some way or another, in the event moneys did prove to be available which perhaps could have been used. Thus, in the present case, I do not consider that the fact that the amount attributed to reserves in the final accounts in the 1995/1996 year (£13.13m.) meant that, at the time he had to take his decision, the Chief Constable should have assumed that the police authorities would allocate more money to this particular task than appeared as reserves in the budget (£7.25m.). It seems to me that at the end of the day it is all a question of considering whether "appropriate measures" have been taken. That in turn involves an inquiry as to whether the steps taken were proportionate.
In Reg. v. Secretary of State for the Home Department, Ex parte Brind  1 A.C. 696 the House treated Wednesbury reasonableness and proportionality as being different. So in some ways they are though the distinction between the two tests in practice is in any event much less than is sometimes suggested. The cautious way in which the European Court usually applies this test, recognising the importance of respecting the national authority's margin of appreciation, may mean that whichever test is adopted, and even allowing for a difference in onus, the result is the same.
I am satisfied, as was the Court of Appeal, that the Chief Constable has shown here that what he did in providing police assistance was proportionate to what was required. To protect the lorries, in the way he did, was a suitable and necessary way of dealing with potentially violent demonstrators. To limit the occasions when sufficient police could be made available was, in the light of the resources available to him to deal with immediate and foreseeable events at the port, and at the same time to carry out all his other police duties, necessary and in no way disproportionate to the restrictions which were involved. Unlike the authorities in the case of France he was controlling and arresting violent offenders. He was, moreover, not dealing with a situation where no other way of exporting the animals was available. Dover was available and there were, and might be, other occasions when the lorries could get through. Far from failing to protect the appellants' trade he was seeking to do it in the most effective way available to him with his finite resources. It was only on rare and necessary, even dangerous, occasions that lorries were turned back. In the light of Article 36 it is not open to I.T.F. to say, as they at times seem to be saying, that they had an absolute right to export animals on seven days a week and there is no suggestion that with such a short Channel crossing their claim was necessarily limited to one sailing a day. This case is quite different from France where "manifest and persistent failure" to control those interfering with imports was shown and where there was no evidence to show that those responsible could have acted. Since this case involves the application of the principles laid down in France, where clearly the European Court left a considerable discretion to national authorities in dealing with issues of this sort, I do not find it necessary, nor are your Lordships obliged, to refer a question concerning Article 36 to the European Court of Justice under Article 177 of the E.C. Treaty.
I am satisfied that here the Chief Constable has shown that the steps that he took were justified on grounds of public order and I would dismiss this appeal.
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Slynn of Hadley. I agree with it, and I too would, therefore, dismiss the appeal. The result may be seen as the acceptance by the courts of a victory for the violent elements in the crowds at Shoreham over the forces of law. I would describe it myself as an acceptance of the plain fact that there are limits to the extent to which the police can control unlawful violence in any given situation. If those limits are felt to be too narrow, the remedy lies in increasing the resources of the police. It does not lie in the imposition of further restrictions upon the discretion which the law allows to a Chief Constable to decide upon the best use of the resources, which are in fact available to him.
International Trader's Ferry Ltd ("I.T.F.") was formed at the end of 1994. Earlier in the year there had been a sustained campaign of protest and demonstration against the shipment of animals to the Continent for slaughter. The pressure forced ferry operators to stop carrying them. Exporters had to find other means of getting the animals across the Channel. A group of farmers, hauliers and dealers therefore decided to form their own shipping company. This was ITF, which chartered a ro-ro ferry and commenced operations on 2 January 1995 carrying livestock from the port of Shoreham to France.
It was predictable that ITF's activities would attract protests and demonstrations. So it turned out. Sussex Police had to provide large numbers of officers to keep the demonstrators from blocking the access road to the port. There was a period in January 1995 when no less than 1,125 policemen were needed every day. Afterwards the numbers of demonstrators fell off and about 315 officers protected each sailing. I.T.F. agreed not to have sailings at week-ends or on bank holidays, when demonstrators were able to gather in large numbers. But by April 1995 the demonstrations showed no sign of stopping.
The Chief Constable of Sussex, who is responsible for the policing of the administrative counties of East and West Sussex, decided that policing Shoreham harbour was putting too great a burden upon the resources of his force. On 10 April 1995 he wrote to I.T.F. saying that he intended to withdraw police protection except on two consecutive days in a week or four consecutive days in a fortnight, Fridays, weekends and bank holidays excluded. I.T.F. protested that the freight from two sailings a week would not cover its charter hire. Sailings from Shoreham would be uneconomic. But the Chief Constable reaffirmed his decision in a second letter dated 24 April 1995. I.T.F. therefore moved some of its activities to Dover at the beginning of May and in June ceased to use Shoreham altogether.
On 4 May 1995 I.T.F. commenced proceedings for judicial review of the Chief Constable's decision. It based its case upon domestic and European law. In domestic law, the Chief Constable has a public duty to keep the peace and enforce the law. But the law gives him a wide discretion as to the way in which the duty is performed. As Lord Denning M.R. said in Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn  2 Q.B. 118, 136:
I.T.F. acknowledges the existence of this discretion but says that in withdrawing protection to the extent which he did, the Chief Constable exceeded its lawful bounds. He knew that without protection, I.T.F.'s lawful trade would be disrupted by unlawful acts of obstruction, even violence, on the part of some protesters. But for most of the time he let them have their way and thereby denied I.T.F. the protection of the law.
In European law, I.T.F. say that the Chief Constable's decision was a "measure" having equivalent effect to a quantitative restriction on exports. It was therefore contrary to Article 34 of the Treaty of Rome: "Quantitative restrictions on exports and all measures having equivalent effect shall be prohibited between Member States."
Alternatively, I.T.F. submits that if the Chief Constable's decision cannot be regarded as a "measure" because it did not prevent I.T.F. from exporting but merely gave notice that the Chief Constable would do nothing to stop the demonstrators from doing so, then I.T.F. say that Article 5 of the Treaty imposes upon the United Kingdom a positive duty to maintain the free movement of goods:
I.T.F. say that the Chief Constable, as an emanation of the State, failed to take appropriate measures to facilitate the free passage of exports.
Both the Divisional Court and the Court of Appeal rejected the claim in domestic law, saying that the Chief Constable was entitled to balance the needs of I.T.F. against his obligations to provide policing for the rest of Sussex. In so doing, he could not be said to have acted unreasonably. But there was a division of opinion on European law. The Divisional Court said that the decision was a "measure" which infringed Article 34. Nor could it be justified under any of the exceptions contained in Article 36:
The Court of Appeal was content to assume that it was a measure but held that the need to provide adequate policing for the rest of Sussex was a legitimate head of public policy which could provide a justification under Article 36. In exercising his discretion, the Chief Constable acted reasonably and proportionately as between the needs of the people of Sussex for police protection and the Community interest in free movement of goods. Against this decision and the rejection of its case in domestic law, I.T.F. appeals to your Lordships' House.