Simplicity could have been a virtue for the well-meaning PSNI…
2 February 2017
Sometimes, in law as in life, keeping things simple is the best approach. Unfortunately for the Police Service of Northern Ireland (‘PSNI’), the Supreme Court found in DB v Chief Constable of PSNI  UKSC 7 that the Force had made both the law and its life, in policing parades in Belfast, more complicated than it needed to be.
This appeal from a judicial review decision was all about the PSNI’s powers, and its understanding of its own powers, to police illegal parades in Belfast. Fittingly, the judgement was delivered by Lord Kerr, Northern Ireland’s former Lord Chief Justice, who (as Wikipedia reliably tells me) is an alumni of Queen’s University, Belfast. The underlying facts will be familiar to anyone with a passing interest in the knock-about politics of Northern Ireland and they drew on those most pressing of issues there: parades and flags.
Until 3 December 2012, the Union flag flew daily over Belfast City Hall. However on that date the City Council took the highly contentious decision that the flag should only fly on designated days. As anyone could have predicted, that decision sparked a wave of protests throughout Northern Ireland which went on for months, including in Belfast. As an aside, I remember being in Belfast at this time, seeing angry protestors and failing to convince a taxi driver to come into the City Centre and bring me to the airport.
The Belfast protests took on a pattern. Each week protestors would march from East Belfast to the City Hall. The route took them through an area of the city known as the Short Strand. Most residents in that area “are perceived to be nationalist”  (carefully chosen words from Lord Kerr) and as readers may have guessed, those taking part in the processions were loyalists. After assembling at the City Hall, the procession would then march back through the Short Strand, having picked up extra numbers in the City Centre. As sure as night follows day, substantial violence and disorder occurred as the parade travelled through the nationalist Short Strand. Sectarian abuse was directed at residents, homes were attacked, stones were thrown. The Appellant was a Short Strand resident whose home had come under attack.
The police initially decided to prevent the protests coming into the City Centre but changed that decision and tried to facilitate some kind of protest. Thereafter, the parades continued weekly for months without the police taking action to stop them. They became known as the ‘flags parades’. The fundamental problem was that the parades had never been notified to the Parades Commission (more of that below) and the PSNI thought it had no power to stop these unnotified parades. The thrust of the judicial review claim was an attack on the PSNI’s failure to recognise and make use of legal powers available to it to prevent the parades from taking place.
The Scheme for Regulating Parades in Northern Ireland
For some residents of Northern Ireland parades are a ‘love/ hate’ business depending on who is doing the parading (I come from there, so feel qualified to say this). Over the years, parades and their routes have led to violence, stand-offs and community tensions. Readers might remember the high profile stand-offs in the mid-1990’s at Drumcree in Portadown, when the Orange Order wanted to march along the Catholic Garvaghy Road, but residents prevented this. Orangemen have now staged over 6000 days of protests at Drumcree. Before 1998, the police were responsible for deciding whether parades should be permitted to proceed. This was a ‘no-win’ situation as both sides of the religious divide accused the police of taking sides.
And so in 1996 the government commissioned an independent review of contentious parades and marches in Northern Ireland. The report became known as the ‘North’ report and it led to the Public Processions (Northern Ireland) Act 1998 (the ‘1998 Act’) which created a new and independent body called the Parades Commission. The Commission itself did not actually have the power to prohibit a parade but it could impose conditions regulating its conduct (including the route). To achieve this, a statutory duty was placed on those proposing to organise a public procession to give advance notice of it to the police. Importantly for the present case, the 1998 Act also made it a criminal offence to organise or take part in a public procession which had not been notified.
Police Powers When there is an Unnotified Parade
None of the flags parades in Belfast was notified to the Parades Commission. The PSNI worked on the basis it had no specific power to ban a parade under the 1998 Act (only the Secretary of State could do that) and reached the wrong view that, in the absence of a ban from the Secretary of State or a decision from the Parades Commission, all it could do was rely on general public order policing powers . The PSNI recognised that those organising the parades were committing a criminal offence under the 1998 Act but saw its role in such situations as collecting evidence of offences and referring that to the prosecuting authorities, while also employing public order and common law powers to keep the peace . The police view was that parades could not be stopped solely because they were unnotified. This, as Lord Kerr found, was simply wrong.
The Short Strand representatives had pointed out that to the PSNI that they were facilitating illegal parades. But that did not prompt the PSNI to examine its legal powers to stop an unnotified parade. It considered itself hamstrung by trying to balance Articles 8 and 11 of the ECHR, by the challenges of policing these kinds of parades, and by what it saw as ‘gaps’ in the 1998 Act. In fact, the PSNI had even considered bringing judicial review proceedings itself to get clarity on its powers under the 1998 Act.
The Supreme Court’s Decision
But life was actually quite simple for the PSNI, and yet the Force insisted on making it complicated. The Supreme Court stripped things back to basics to remind the PSNI that, under the general law, the police have a duty and a power to prevent the commission of criminal offences. That fundamental duty of the police at common law was expressly confirmed by s32 of the Police (Northern Ireland) Act 2000 which provides:
“(1) It shall be the general duty of police officers-
(c) to prevent the commission of offences…”.
The parades were unnotified under the 1998 Act. Participating in an unnotified parade was a criminal offence under the 1998 Act. The police had a power and a duty to prevent the commission of criminal offences. Therefore, the PSNI did have the power to stop an unnotified parade. Simple.
Or perhaps only so simple with the benefit of hindsight. The High Court judge had allowed the judicial review on this basis. But the Court of Appeal allowed the Chief Constable’s appeal. It had 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” . Those were concerns that played heavily on the PNSI. Intelligence had suggested that, had they stopped the protests in the early days, there was a significant risk to life that would be posed by the resultant disorder and violence. However, the Supreme Court roundly disagreed with the Court of Appeal’s view on the central issue. According to Lord Kerr, the key issue was actually whether the PSNI had properly understood its powers. That analysis did not call on the police to form a view as to whether a parade should take place (something the PSNI did not want to descend into). What was required was a decision as to whether a parade was taking place legally. If it was not, either because the parade did not comply with a condition imposed by the Parades Commission or because it had never been notified to the Parades Commission, the police had the power to prevent an illegal parade.
Article 11 ECHR
It was clear that the PSNI had considered the implications of the Article 11 right to freedom of peaceful assembly and association with others. But of course that is a qualified right, with restrictions permissible as prescribed by law and necessary in a democratic society for the prevention of disorder or crime.
The Supreme Court considered Eva Molnar v Hungary (Application 10346/05) in which the ECtHR had decided that notification requirements would not normally encroach on the Article 11(1) right. However in that case the ECtHR had recognised there may be special circumstances when a spontaneous demonstration is justified and where authorities should show tolerance towards unnotified peaceful gatherings if Article 11 is not to be deprived of its substance. The problem for the PSNI in this case was twofold: first, the vital ingredient of spontaneity (which might absolve organisers of the need to notify of the parade) was missing. Secondly, the Supreme Court agreed that the 1998 Act was Parliament’s considered response to Northern Ireland’s intractable parades’ problem. Fundamental to its successful operation was the requirement for notification, especially of those parades likely to be contentious. Here the parades were far from peaceful and the PSNI had no obligation under Article 11 to facilitate them. As Lord Kerr said:
“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” .
According to Lord Kerr , “[i]t is universally agreed that PSNI must have operational discretion to make policing decisions” (see Osman v UK (1998) 29 EHRR 245). It was also correct that operational discretion does not equate to immunity from judicial scrutiny of policing decisions (H v Commissioner of Police of the Metropolis  1 WLR 3021). The Appellant had argued that the police’s operational discretion was circumscribed by the imperative of ensuring full effectiveness of the 1998 Act and the positive obligation to protect his Article 8 rights. He also argued that the Court of Appeal had failed to consider if the PSNI’s actions passed the proportionality test. The Supreme Court gave little attention to this proportionality argument for the very reason that the mischief or fault was more straightforward, namely that the PSNI had misconstrued its powers. Proportionality depended on context and the police had set themselves the wrong context in which to make decisions .
Of course, this analysis also allowed the Supreme Court to neatly avoid being drawn into decisions on what proportionate action would have looked like or what policing decisions could or should have been taken.
But the PSNI had the Right Intention
While the PSNI may have forgotten its core duty and power to take steps to prevent crime, its heart was in the right place, as Lord Kerr was at pains to point out:
“There can be no reasonable suggestion…that the police failed to treat the control of parades and demonstrations with sufficient seriousness….This case is not about the sincerity and authenticity of the efforts made by the police to control the parades. It is about their conception and understanding of the powers available to them to do so.” 
There was praise for the managerial and strategic steps taken by the police. They had responded to intelligence reports, consulted with interested parties and liaised with community leaders. But the issue was not shortcomings on those fronts. The issue was whether the PSNI was sufficiently aware of the full range and scope of its powers. As Lord Kerr said, it was:
“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” .
By diligently trying to recognise apparently competing claims under Articles 8 and 11, trying to engage the Parades Commission to control the parades, and holding the mistaken view that they needed to police the parades outside of the 1998 Act scheme, the PSNI was, unfortunately, just making life difficult for itself. Entirely understandably, the Force did not want to be drawn into the controversial arena of deciding what parades should be permitted and under what conditions, but there was a failure to see that it did not have to be this way. The 1998 Act made notification of an intention to hold a parade vital to the scheme of control. Without a notification, the integrity of the 1998 Act was undermined. The PSNI made the situation more complicated than it was or needed to be, a point not lost on Lord Kerr. Yes, it remained true that the police did not have the power to ban the parades but it did have “ample legal power to stop them” . They could be stopped solely because they were unnotified.
This case is a helpful reminder that, certainly in policing, it sometimes pays to go right back to basics. What are the core powers and duties of a constable? Can these be used to cut through what might appear a tricky legal situation? The power and duty to prevent the commission of offences is firmly settled in common law, it was contained in the Police (Northern Ireland) Act 2000 and repeated in paragraph 1.1 of the PSNI Code of Ethics, directed at each constable. And those simple provisions were what the PSNI should have focused its attentions on.