R v Chief Constable of Sussex, Ex parte International Trader’s Ferry Ltd (International Trader’s Ferry Ltd, Ex parte)

A chief constable’s duty to keep the peace and enforce the law does not confer an absolute right to police protection for a lawful activity, regardless of cost. The chief constable may balance competing rights, public-safety risks, other policing needs and the finite officers and funds available.

Judicial review respects the chief constable’s operational discretion, while ensuring that relevant considerations are addressed and the decision remains reasonable. Restrictions affecting exports may be justified under article 36 of the EC Treaty where public order requires them and the measures are suitable, necessary and proportionate. The assessment concerns the resources reasonably available and the circumstances known when the decision was made.

International Trader’s Ferry Ltd carried livestock from Shoreham to France. Its operations attracted large and sometimes violent demonstrations. Sussex Police initially deployed substantial numbers of officers, including mutual aid from other forces, but the Chief Constable concluded that this impaired policing elsewhere and could not be sustained.

He limited fully protected sailings to two consecutive days each week, or four consecutive days each fortnight, excluding Fridays, weekends and public holidays. The Divisional Court, [1996] QB 197, rejected the domestic-law challenge but quashed the decisions under article 34 of the EC Treaty. The Court of Appeal, [1998] QB 477, dismissed the application, holding that the Chief Constable had acted within his discretion and that any restriction was justified under article 36.

The issues before the House were whether the Chief Constable had unlawfully restricted a lawful trade and whether the policy infringed directly enforceable Community rights.

1. Appeal dismissed unanimously. Lord Slynn of Hadley delivered the leading speech. Lord Nolan agreed with it, and Lord Hope of Craighead agreed with Lord Slynn and Lord Hoffmann. Lord Cooke of Thorndon reached the same result.

2. Per Lord Slynn, a chief constable’s duty to keep the peace remains reviewable by the courts, but a lawful trader has no absolute right to protection at whatever cost. Where lawful trading, peaceful protest, threatened violence and other policing needs conflict, the chief constable must exercise judgment. He may consider available officers and funds, public safety, the protection of the wider community and the competing rights of traders and protesters.

3. The Chief Constable had undertaken the required balancing exercise. He considered the serious violence, the demands placed on a force of limited size, the expense and temporary character of mutual aid, the effect on policing elsewhere, the company’s commercial interests and the availability of Dover. His assessment had to be judged by the information and resources reasonably available when the decisions were made. An examination of later accounts could not establish that he should have assumed that additional money would become available. His decisions were not unreasonable in the Wednesbury sense.

4. Per Lord Slynn and Lord Hoffmann, Beatty v Gillbanks did not establish that the police could never restrain a lawful activity where that was the only practicable means of preventing imminent violence. The individual direction to a lorry driver was not separately challenged and did not invalidate the general policy.

5. On the assumed application of articles 34 and 36 of the EC Treaty, the Chief Constable proved that the restrictions were justified on grounds of public order. The protection provided was suitable and necessary. Restricting the occasions on which sufficient officers were deployed was proportionate in light of finite resources, other duties, the arrests made, the limited occasions on which lorries were turned back and the availability of another port.

6. Lord Hoffmann doubted that the decision was a “measure” under article 34 or that the positive obligation arising from articles 5 and 34 was directly enforceable against an individual chief constable. Lord Cooke considered the announced policy capable of constituting such a measure. It was unnecessary to decide those questions or to refer them to the European Court of Justice because, on the assumed application of article 34, article 36 justified the policy.

1. House of Lords: Dismissed the company’s appeal unanimously and affirmed the Court of Appeal’s rejection of the application.

2. Court of Appeal: In [1998] QB 477, held that the Chief Constable’s resource-allocation decision was not unreasonable and that any restriction on exports was justified under article 36 of the EC Treaty. The application was dismissed.

3. Divisional Court: In [1996] QB 197, rejected the domestic-law challenge but held that the decisions breached article 34 of the EC Treaty and were not justified under article 36. It quashed the decisions.