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

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1. Domestic law

      My Lords, I will say at once that I think I.T.F.'s claim in domestic law is quite hopeless. The reasons will become apparent if I explain the legal position of the Chief Constable and the financial and other constraints within which he operates. It is important to bear in mind that the Chief Constable is the only respondent to this application. That is not to say that I.T.F. would have done any better if they had brought their proceedings against other persons and bodies who also have legal powers and responsibilities for the policing of Sussex, such as the Sussex Police Authority and the Home Secretary. They too have wide discretions. But the form of the proceedings means that your Lordships may concentrate upon the position of the Chief Constable and need not trouble about what others may have done.

      For the purpose of convenience I shall refer to the provisions of the Police Act 1996, which came into force after the events in this case but which merely consolidated identical provisions in earlier statutes now repealed. The duty to "secure the maintenance of an efficient and effective police force" is imposed by section 6(1) upon the Police Authority, a body made up largely of local authority representatives with some independent members and magistrates. The Police Authority appoints the Chief Constable and is in no way subject to his control. It is the Authority which fixes the police budget. This is funded partly by local authority funds and partly by a police grant made by the Home Secretary under section 46.

      The Chief Constable has operational command of the force but must work within the police budget. He has the discretion to which Lord Denning referred in Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118 but he is now also required to have regard to the objectives and targets set out in an annual plan issued by the Police Authority pursuant to section 8. This will state the Authority's priorities, the financial resources expected to be available and the proposed allocation of those resources. In preparing the plan, the Authority will have regard to what it perceives to be the policing priorities of its area and also to any national objectives and performance targets set by the Home Secretary under sections 37 and 38.

      The 1995-96 police plan said that the police would concentrate their efforts on the prevention and detection of crime and answering and attending calls from the public. The Home Secretary had also determined certain "key objectives" which had to be included in the plan, such as increasing the number of detections for violent crime and targeting crimes which were a local problem such as drug-related criminality.

      In 1995 the force consisted of just under 3,000 officers, of whom 25 per cent. would at any given time be on rest days. It will therefore be apparent that if the 1,125 officers deployed at Shoreham in January 1995 had been drawn entirely from Sussex, the Chief Constable would have been left with only half his force to police the rest of the two counties. In fact a substantial number were provided by other forces pursuant to section 24, which enables forces to request and provide mutual aid in emergencies. It is however expensive. The few occasions in January and February 1995 on which the Chief Constable drew upon mutual aid cost the Sussex Police Authority £1.2 million. When the Chief Constable decided to restrict protection to two sailings a week, the officers on duty were all from the Sussex force.

      The Home Office can make special payments by way of assistance to a Police Authority which has incurred expenditure which was unforseen, exceptional and threatens the efficiency of the force. These criteria are rarely satisfied and in answer to inquiries, the Home Office made it clear to the Sussex Authority that it did not consider them satisfied in this case. The Chief Constable had no power to make the Home Office pay more money or even to make the Sussex Police Authority ask for it.

      The Chief Constable says that by April 1995 he had formed the view that Shoreham was having a significant adverse effect on his ability to attain the objectives which had been given priority in the policing plan. In January to March, residential burglaries had increased by 7.5 per cent. over the same period in the previous year and violent crime by 5.5 per cent. Other indicators also pointed to a drop in policing efficiency.

      My Lords, it seems to me quite impossible to say that against this background, the decision was unreasonable. He was not merely entitled but statutorily obliged, in the allocation of the resources under his command, to have regard to the fact that the Police Authority, mainly appointed by the democratically elected institutions of local government, wished priority to be given to the objectives stated in the plan.

      I.T.F. says that this case is unique because the Chief Constable decided, as a matter of policy, that he would not deploy the forces which he himself had decided were necessary to deal with an anticipated level of unlawful and violent conduct. It was his decision that 315 or so officers were needed to keep the peace at Shoreham and provide protection for ITF's lawful trade. His duty to enforce the law therefore required him to provide that number of policemen.

      In my view this reasoning is fallacious. The fact that a Chief Constable considers that certain resources would be needed to prevent some kind of criminal behaviour does not entail that he is obliged to provide them. He might, for example, decide that the only way to eliminate muggings on the streets of Brighton or burglaries in Rottingdean would be to have many more constables on patrol and spend large sums on vehicles and communication equipment. This cannot create a duty to find the resources at the expense of other policing activity. I can see no distinction between the interests of ITF in obtaining protection from demonstrators and those of the citizens of Brighton and Rottingdean in obtaining protection from muggers and burglars.

      I.T.F. also complained that the Chief Constable had gone further than merely refusing to provide protection except on two days a week. He had, said I.T.F., instructed officers to tell drivers of livestock lorries that if they attempted to reach the docks on other days they would be arrested for obstructing a police officer in the execution of his duty. This, it was argued, would have been contrary to the constitutional principle that lawful activities cannot become unlawful because other people threaten unlawful acts to stop them: Beatty v. Gillbanks (1882) 9 Q.B.D. 308.

      There is a dispute of fact over whether the Chief Constable did give orders in such broad terms but I think that even if he did, it can make no difference to this appeal. I.T.F.'s application for judicial review does not complain of any such orders by the Chief Constable and the point was not properly explored in the evidence. The Chief Constable does not claim that it would have been unlawful to drive to the docks and no one was arrested for doing so. If someone had been, the case might have raised interesting questions of the kind discussed in the controversial decision of the Divisional Court in Duncan v. Jones [1936] 1 K.B. 218. As it is, the point does not arise.

      Finally, ITF relies upon the decision of the Divisional Court in Reg. v. Associated British Ports, Ex parte Plymouth City Council, reported as Reg. v. Coventry City Council, Ex parte Phoenix Aviation [1995] 3 All E.R. 37. Associated British Ports ("A.B.P.") operated Plymouth Docks and had a statutory duty to keep the harbour open to all persons for shipping goods. Notwithstanding this duty, Plymouth City Council brought judicial review proceedings claiming that A.B.P. should be ordered to close the harbour to livestock exporters. The application was plainly a bold one: Simon Brown L.J. described it, at p. 63, as "barely respectable." The grounds alleged for requiring A.B.P. to breach its statutory duty were that demonstrations were causing a nuisance to people living near the docks and putting a strain on police resources. The court said that this was insufficient; if the lawful use of the docks gave rise to unlawful demonstrations, it was a matter for the police to decide how best to cope with them. Simon Brown L.J. said that it was regrettable that the Council were "asking the court to order their own port authority in effect to surrender to mob rule." I.T.F. fastens on these words and says that the Chief Constable of Sussex has surrendered to mob rule. I find these emotive phrases unhelpful. The positions of A.B.P. and the police are quite different. A.B.P. had an unqualified statutory duty not to turn anyone away. The police have a different duty to uphold the law which confers a wide discretion subject to the statutory plan. The possible perception that he had surrendered to mob rule was one of the matters which the Chief Constable took into account and he could not be legally obliged to do more. For these reasons I agree with the Divisional Court and the Court of Appeal that I.T.F.'s claim in domestic law must fail.

2. European law

      The European aspect of the case has proved more difficult than the domestic; indeed, as I said earlier, it gave rise to a difference of opinion between the Divisional Court and the Court of Appeal. I think that the reason for the difficulty is that the case has been argued upon certain assumptions about the effect of Articles 5 and 34 of the Treaty which in my view are wrong. In particular, it has been assumed (a) that the Chief Constable's decision was a "measure" within the meaning of Article 34 or that the I.T.F. was in some other way entitled to enforce Community rights under Articles 5 and 34 against the Chief Constable and (b) that in considering whether a measure which prima facie infringed Article 34 could be justified under Article 36 on grounds of public policy, it was right to consider public policy from the point of view of the Chief Constable rather than the United Kingdom as a whole. Lord Lester Q.C., for the Chief Constable, said that he did not necessarily accept the first assumption and Mr. Roth Q.C., for I.T.F., said much the same about the second. For the most part, however, the argument proceeded on the basis that they were correct. In my view they are in fact contrary to the jurisprudence of the European Court and have distorted the shape of the case as presented to your Lordships. This explains the difficulty and awkwardness involved in trying to fit it within the principles derived from the European cases.

      I shall consider first whether the Chief Constable's decision as expressed in the letters under challenge was a measure having equivalent effect to a quantitative restriction on imports within the meaning of Article 34. It certainly had equivalent effect, because it reduced the amount of livestock which could be exported from Shoreham. But was it a "measure?" In the Divisional Court, Balcombe L.J. said that it was. He stressed the fact that, in his view, the Chief Constable had made it clear that his officers would prevent a convoy of lorries from going to the docks when they feared there might be a breach of the peace. This was a positive prohibition on exports. In my view, however, it is not legitimate to look beyond the terms of the letters which constitute the decisions under challenge. There is, as I have said, a dispute of fact about whether the Chief Constable said that he would stop lorries and even if he did, there is nothing to show that his statement had any causal effect upon I.T.F.'s ability to export. That was caused by the demonstrators and not by anything done or threatened to be done by the police. The substance of the complaint is that the Chief Constable did not take measures to protect the convoys.

      In some contexts (for example, if the Chief Constable had owed an unqualified statutory duty to permit free passage of goods through the port of Shoreham) it would be technical to insist upon the distinction between a positive preventative measure and a mere failure to act. The scope of such a hypothetical duty would almost certainly cover both. But the distinction, as I hope to show, is very important in the European jurisprudence on the free movement of goods.

      I.T.F. are able to assert a Community right only if the Article or Articles which it alleges to have been infringed have direct effect, that is to say, they give rise to rights which are directly enforceable by citizens of Member States against the State or against other citizens. The concept of direct effect was first expounded by the Court in Van Gend en Loos v. Nederlandse Administratie Der Belastingen (Case 26/62) [1963] E.C.R. 1 and is a fundamental principle of Community law. Not all the provisions of the Treaty or subordinate legislation confer rights upon private persons such as I.T.F. Many will operate only at the level of international law, enforceable only by Member States against each other or by the Commission in proceedings under Article 169:

     "If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.    "If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice."

      In the case of Article 34 there is no doubt that, ever since Van Gend en Loos [1963] E.C.R.1, it, and its sister Article 30, which prohibits quantitative restrictions on imports, have been construed as having direct effect. But in construing the scope of those Articles, it is important to take into account the reasons why the European Court of Justice has said that they satisfy the criteria for having direct effect. There is a convenient statement of those criteria in the judgment of the Court in Case 44/84 Hurd v. Jones [1986] E.C.R. 29, para 47:

     " . . . [A] provision produces direct effect in relations between the Member States and their subjects only if it is clear and unconditional and not contingent on any discretionary implementing measure."

The paradigm of a provision which is clear, unconditional and not contingent upon implementation by a Member State is a prohibition against some defined action. It was the negativity of the obligation which the Court emphasised in its discussion of the relevant provision (Article 12, which prohibits customs duties or charges having equivalent effect) in Van Gend en Loos itself:

     "The wording of Article 12 contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of the states which would make its implementation conditional upon a positive legislative measure enacted under national law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between Member States and their subjects." (p. 13)

Even in cases in which it may look as if a Member State has infringed Article 30 or Article 34 by failing to take some positive steps to facilitate free movement of goods, it will be found on analysis that the direct effect arises from the negative prohibition having been infringed. So, for example, in Commission of the European Communities v. Italian Republic (Case 128/89) [1990] E.C.R. 1-3239 the Italian Government was held to have infringed Article 30 by closing all inland frontier posts at which imported grape fruit could be inspected and allowing importation only through certain seaports. This may look like a failure to take positive steps to provide more inspection posts. On a proper analysis, however, it was the law which prohibited the importation of grapefruit without inspection which prima facie infringed Article 30. The requirement of inspection in itself made importation more difficult and therefore constituted a restriction. The question in the case was whether it could be justified under Article 36 and a specific Directive (77/93) on the grounds that it was necessary for "the protection of the health and life of plants": see Advocate General Jacobs at pp. 3251-3252, paras. 11 and 12. The Italian Government failed to show that it was necessary for such purposes, not merely to require inspection, but to require it at a restricted number of border posts. Thus the fact that more inspection posts could have been provided was not the reason why Italy was in breach of Article 30--it was the reason why Italy failed to establish a defence under Article 36.

      The distinction between positive measures by a Member State or one of its institutions which infringe the directly enforceably prohibitions in Article 30 and Article 34 and the failure of a Member State to take "appropriate and adequate measures" to maintain the free movement of goods against the acts of individuals such as demonstrators was clearly made in the recent Commission v. France (Case C-265/95) (Judgment 9 December 1997). In that case, the French Government had over a long period "manifestly and persistently abstained from adopting appropriate and adequate measures to put an end to . . . acts of vandalism" and other unlawful practices by French farmers against imported fruit and vegetables: see para. 65 of the judgment of the Court. But Advocate General Lenz (at para. 8) said that this did not constitute an infringement of Article 30:

     "[T]he prohibition of quantitative restrictions and measures having equivalent effect, which is established in [Article 30], clearly relates to measures taken by the Member States and their institutions. It is undisputed that the French authorities themselves have not taken any measures which could be regarded directly as quantitative restrictions on imports or measures having equivalent effect."

      On the other hand, Article 5 imposed upon Member States a positive obligation which, read with Article 30, implies an obligation to take appropriate measures to maintain freedom of imports. The Court adopted this analysis in paragraph 32 of its judgment:

     "Article 30 therefore requires the Member States not merely themselves to abstain from adopting measures or engaging in conduct liable to constitute an obstacle to trade but also, 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."

Thus in order to create an obligation upon a Member State to take positive steps, Article 30 requires the support of Article 5.

      Does this obligation give rise, like the negative prohibition in Article 30, to directly enforceable rights? There is no decision on the point: Commission v. France was an action by the Commission under Article 169. But the terms in which the Court stated the nature of the obligation make it highly unlikely that it would be held to be directly enforceable. For this purpose, it will be remembered, the obligation must be clear, unconditional and not leave the means of implementation to the discretion of the Member State. But the terms in which the Court described the duties of the French Government conceded a wide discretion over the way in which the obligation was to be implemented:

     "33 . . .[T]he Member States, which retain exclusive competence as regards the maintenance of public order and the safeguarding of internal security, unquestionably enjoy a margin of discretion in determining what measures are most appropriate to eliminate barriers to the importation of products in a given situation.
    34. It is therefore not for the Community institutions to act in place of the Member States and to prescribe for them the measures which they must adopt and effectively apply in order to safeguard the free movement of goods on their territories.
    35. However, it falls to the Court, taking due account of the discretion referred to above, to verify, in cases brought before it, whether the Member State concerned has adopted appropriate measures for ensuring the free movement of goods."