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|Judgments - Regina v. Chief Constable of Sussex EX Parte International Trader's Ferry Limited
Lord Cooke of Thorndon Lord Hope of Craighead
LORD SLYNN OF HADLEY
The Factual Background
International Trader's Ferry Ltd. ("I.T.F.") was incorporated on 17 November 1994 by a group consisting mainly of farmers and hauliers for the purpose of carrying across the Channel livestock, mainly the property of members of the company. The group took this step since the major cross-Channel ferry operators gave up this business because of the difficulties caused by those protesting against the transport of live animals to the Continent.
I.T.F. chose Shoreham as being the most convenient port because of the areas from which the animals came and to which they were to go. They contracted for the provision by the Shoreham Port Authority of a berth for a roll-on roll-off ferry and on 6 December 1994 concluded a time charter for a vessel, the "Northern Cruiser."
The company realised from the beginning that it was likely to be met by protests and demonstrators from those opposing the trade. Sensibly it kept the police informed of its plans and a number of meetings were held from 11 November 1994 between the company and the police. The police made it clear that their task was to maintain public order and to deal with criminal offences or the threat of them. It is plain from the minutes of the meetings, from correspondence and from the affidavits filed in the course of these proceedings that the police recognised the right of I.T.F. to trade lawfully, the right of the demonstrators to protest peacefully and the potential for conflict between the two interests which opened up the risk of danger to all those involved. "The public safety identified here is for the demonstrators and the lorry drivers and their cargo and, as importantly, the police officers on duty" (letter from Assistant Chief Constable Lake to I.T.F. dated 26 January 1995).
To this end the police set up three operations:
The first sailing was deferred until 2 January 1995 when the problems were immediate and serious. The police had 74 officers at the port to protect the lorries: they were met by between 500 and 600 demonstrators, some of whom were violent to drivers and to the police, damaging the vehicles; others blocked the road by sitting down. Accordingly on 2 and 3 January 1995 the lorries could not get through. Between 4 and 14 January the average number of demonstrators was the same as on 2 January and the Chief Constable arranged for some 1,125 officers to be present for each sailing. This very substantial number was only made possible by the Chief Constable obtaining assistance from other police forces which had to be paid for out of Sussex Police budgeted funds. Thus just for these few days the sum of £1,252,000 had to be paid in addition to the cost of his own men on duty at the sailings. During the same period 67 demonstrators were arrested.
It is hardly surprising that on 6 January 1995 the notes of a meeting between the police and I.T.F. should record that Assistant Chief Constable Childs stated "that the current level of policing for operation Ferndown was not easily sustainable." I.T.F. insisted, however, that they intended to export every day for the 50 days remaining of the charter, though the police had already made it clear that full policing could not be available on Saturdays and Sundays because of other commitments.
Fortunately the number of protestors fell from 14 January to between 100 and 150 on Mondays to Thursdays and round about 350 on Fridays. The number of police engaged on operation Taunton in policing the port remained at 24 during the week and 30 on Sundays.
In addition to dealing with the demonstrators there were other specific problems for the police caused by cancellations after the police had been arranged for duty, or when sailings were cancelled because of bad weather, or when I.T.F. sought to give short notice of a sailing and when it was difficult or not possible for police to be made available, or when I.T.F. wished to sail on a Saturday morning. The police at a meeting on 27 January 1995 were asked to look after more frequent sailings, including weekend sailings, and that request was repeated by letter of 17 March 1995, but the police made it clear that weekend sailings could not be accommodated.
I.T.F.'s sailings were also affected by a stop notice issued by the local planning authority between 1 and 8 February which the High Court refused to set aside. Thereafter a different berth was found but between 8 and 13 March activities were suspended by the Harbour Master until the High Court intervened so that operations were resumed.
On 10 April 1995 the Chief Constable, having consulted his colleagues in the command team, wrote to I.T.F.:
In reply on 13 January 1995 I.T.F. said that they had agreed to operate on a five day week, with no operations at the weekend or in the evenings. Having entered into a new time charter, they would be likely to be put out of business if they were limited to two days a week. They asked in the light of the judgment of the Divisional Court in Reg. v. Coventry City Council, Ex parte Phoenix Aviation  3 All E.R. 37 that the decision be not implemented before 9 May so that discussions could take place. The police and I.T.F. did meet on 20 April. It was agreed that I.T.F. could sail on the four days between 24 and 27 April but I.T.F. insisted that it would also sail on 28 April though it was negotiating with the Dover Port Authority to use the "Northern Cruiser" from Dover. By letter dated 24 April Assistant Chief Constable Lake confirmed that the decision of 10 April stood and added that the judgment in the Coventry case did not cause the police to change their decision:
Although they had used up four days for the fortnight from 24 April, I.T.F. decided to sail again on 28 April and they confirmed this to the police on 27 April. Since 28 April was a Friday it was in two respects contrary to what I.T.F. had been told the police could do. By 6.30 a.m. on that day, there were 150-200 protestors at the port and so I.T.F. decided to ship only one lorry rather than the seven to ten provided for in the arrangements. By 8.35 a.m. there were between 250 and 350 demonstrators. Thirty police officers were present, fifty more were available ten minutes away and twenty two were available within half-an-hour. Because of the number and hostile attitude of the crowd ("here come the Nazi scum"; the windscreen of a Harbour Authority officer's car was smashed), the one lorry was served with a notice warning the driver that because the Chief Inspector had "reason to believe that breaches of the peace will occur if you continue to the port. . . I have a power and a duty at common law to prevent breaches of the peace. I therefore ask you to turn back. If you refuse to do so and insist on continuing on your journey you will be obstructing a police officer in the execution of his duty and therefore liable for arrest. As a result of what I have told you, will you please turn your vehicle back and leave the area." The vehicle did so but no arrests were made, it apparently not being possible to identify the persons involved in attacking the car.
From 1 May I.T.F. sailed twice a week, though on 6 and 14 June, because only two lorries were available, the police only provided a limited number of officers. The vehicles were, however, able to reach the vessel. From mid-June 1995 I.T.F. sailed from Dover with regular sailings, including from October 1995 a larger vessel chartered by I.T.F., though during this period they encountered sharp competition from another trader in Dover which made their business less profitable. Because of the B.S.E. crisis regular sailings ceased on 27 March 1996 and I.T.F. went out of business in mid-June 1996.
Although the arrangements at Dover enabled I.T.F. to operate, and apparently to transport all that they wished to transport, I.T.F. has always said that Dover was less satisfactory since it meant a longer road journey for farmers from the West Country with more stops and lairage provision and less security in the use of a berth. In addition I.T.F. lacked office facilities.
I.T.F. applied to quash the Chief Constable's decisions of 10 April 1995 to provide no policing, save on two consecutive days a week or on four days consecutively a fortnight, excluding Fridays, weekends and bank holidays, and also his decision of 24 April 1995 refusing to change that decision or to review its implementation. I.T.F. also claimed damages for breach of Articles 5 and 34 of the EC Treaty.
The Divisional Court
In the Divisional Court  Q.B. 197 these decisions were said by I.T.F. in the first place to be so unreasonable as to justify the court quashing them (Associated Provisional Picture Houses Ltd. v. Wednesbury Corporation  1 K.B. 223). The Divisional Court firmly rejected this contention. It was in their view for the Chief Constable to decide on the disposition of his forces and the use of his resources. He was fully entitled to take into account the size of his force, the need to perform other police functions and his budget. In view of the Home Office's practice in the provision of further finance he had not acted unreasonably in not asking the Police Authority to seek further funds from the Home Office. Having set out all the arguments, the Court concluded, at p. 211: "We are quite unable to say that this Chief Constable's decisions, taken as a whole, were such that as a matter of domestic law we can intervene."
In the second place reliance was placed by I.T.F. on Article 34(1) of the EC Treaty (O.J. 1992 No. C. 224, p. 6-79) in that the decisions amounted to a quantitative restriction on exports. On the basis, as was common ground, that the Chief Constable is an "emanation of the State" and that an individual decision may constitute a "measure" for the purpose of the Article, the Court ruled that, since the Chief Constable was only concerned with exports, his action amounted to a prima facia breach of Article 34. They held, moreover, that civil disturbances do not provide a defence under Article 36 of the Treaty "provided that the resources are available to deal with such disturbances, and the cost of so doing is not disproportionate." Here the Chief Constable had not proved that the resources available to him were inadequate, within the principle of proportionality, to police Shoreham "at a level which would enable the lorries to get through to the port on a regular basis." He had not asked the Police Authority to seek funds from the Home Office. Hence his two decisions fell to be quashed as being in breach of Article 34. The Court recognised that if a request had been made and refused then "in proceedings differently constituted to the present proceedings" different considerations might arise.
The Court of Appeal
The Court of Appeal  Q.B. 477 took an equally firm view of I.T.F.'s contention that these decisions were Wednesbury unreasonable. The Chief Constable's conclusions (1) that his available resources were not such as to enable him to police his area and to escort lorries on five days a week and (2) that he had no realistic prospect of obtaining significant extra resources "can [not] possibly be regarded as so unreasonable as to enable a Court to interfere." "To describe those proposals [in the letters of 10 and 24 April 1995] as an abrogation of responsibility, or as a decision by the Chief Constable not to enforce the law, seems to me to be a travesty." (Per Kennedy L.J., at p. 492, giving the judgment of the Court.) When dealing with Community law the Court of Appeal proceeded on the assumption that there had been a contravention of Article 34. As to Article 36 they attached importance to the fact that the Chief Constable was himself acting to preserve law and order and was not attempting to reduce exports, and to the fact that it was abundantly clear in March and April 1995 that an approach for further financial assistance would not have been met with a favourable response. The allocation of resources available to the Chief Constable was for him and the course he took was well within his margin of appreciation, not least because of the need to balance serious competing claims. It was unreal and unfair to treat the Chief Constable as having all the resources of the State available to him before he could justify what he had done. I.T.F.'s application was, therefore, dismissed.
The arguments before the House
The case has also been argued before your Lordships as a matter of domestic law and as a matter of Community law. Although the two have been treated separately it is recognised that there is an overlap and that if Articles 34 and 36 apply and can be relied on by I.T.F. in these proceedings effect must be given to them.
As a matter of domestic law I.T.F.'s case in essence is that the Chief Constable had an overriding duty to make it possible for lawful activities to be carried out and that he could not lawfully allow the illegal acts of violent demonstrators to deflect him from that duty. Alternatively if he had a discretion as to how he dealt with the problem then he failed adequately to take into account relevant matters and gave too much weight to other matters; in any event his decisions in the letters of 10 and 24 April 1995 were those to which no Chief Constable could reasonably come.
My Lords, it is clear that, although the duty to keep the peace is that of the Chief Constable, what he does may be reviewed by the courts; if his act is clearly unlawful it will be quashed and he may be ordered to do something else; he may have to pay damages.
As I see it, however, a right of the kind claimed--here to trade lawfully--is not an absolute right by which the Chief Constable owes a duty to protect the trader at whatever cost and in whatever way necessary, any more than is the right to protest lawfully an absolute right owed by the Chief Constable to protestors which he must protect at whatever cost. If, for example, the police find a crowd of 500 demonstrators, half of whom are armed with offensive weapons and are clearly aggressive and half of whom are intending to protest peacefully, but the crowd is completely mixed, and the police reasonably conclude that the only way to prevent immediate breaches of the peace is to move the whole crowd away it does not seem to me that the peaceful members could say that the Chief Constable is in breach of his duty to them by moving the whole crowd.
In a situation where there are conflicting rights and the police have a duty to uphold the law the police may, in deciding what to do, have to balance a number of factors, not the least of which is the likelihood of a serious breach of the peace being committed. That balancing involves the exercise of judgment and discretion.