Chief Constable of Sussex, Ex Parte International Trader's Ferry Ltd, R v.

The House of Lords dismissed the appellant's challenge to the Chief Constable's operational policing decisions. The court held that a chief constable exercising his duty to maintain the peace and to allocate finite police resources enjoys a wide discretion which the courts will not lightly second-guess. Where rights to trade lawfully conflict with the policing needs of the wider community, the chief constable may balance competing interests and take proportionate steps in light of available resources.

On European law issues, the court assumed for the sake of argument that the decisions could be regarded as a measure for the purposes of Article 34 (free movement of goods) but found that the restriction was justified under Article 36 as measures necessary and proportionate on grounds of public policy/public order. The court emphasised the margin of appreciation of national authorities in matters of public order and that proportionality review must take account of the resources and information reasonably available to the national authority at the time.

I.T.F. (a company formed to export livestock) sought judicial review of letters from the Chief Constable of Sussex dated 10 and 24 April 1995 which limited police protection for shipments from Shoreham to either two consecutive days per week or four consecutive days per fortnight (excluding Fridays, weekends and bank holidays). I.T.F. argued (1) domestically that the decisions were Wednesbury-unreasonable and breached the Chief Constable's duty to protect lawful trade and (2) under Community law that the decisions amounted to a quantitative restriction under Article 34 of the EC Treaty and that the State had failed to take measures required by Article 5 to secure free movement of goods.

• Procedural history: Proceedings began in the Divisional Court ([1996] Q.B. 197), proceeded to the Court of Appeal ([1998] Q.B. 477) and then to the House of Lords ([1998] UKHL 40).
• Issues framed:
  1. Whether the Chief Constable's operational decisions were so unreasonable that they should be quashed under domestic judicial review principles (Wednesbury/unreasonableness and the duty to keep the peace).
  2. Whether the decisions constituted a "measure" contrary to Article 34 and, if so, whether they could be justified under Article 36 (public policy/public security) or by an Article 5 positive obligation to take appropriate measures.
• Court's reasoning: On domestic law the Lords held the Chief Constable had performed a balancing exercise, taking into account availability of officers, financial resources, competing policing needs across Sussex and the risk of breaches of the peace; his decisions were within the ambit of lawful discretion and not Wednesbury-unreasonable. On Community law the Lords emphasised that national authorities retain a margin of discretion in matters of public order. Even assuming the decisions could be treated as measures under Article 34, the Chief Constable discharged the onus of showing justification under Article 36: the steps were suitable, necessary and proportionate given the resources available and other avenues (such as alternative ports) were available. The court was cautious about treating Article 5 as directly enforceable in this context but, if it were, the proportionality inquiry must focus on what the national authority reasonably could be expected to do with the means at its disposal.

The House therefore dismissed the appeal.

Appeal dismissed. The Chief Constable's operational decisions were within his lawful discretion and not Wednesbury-unreasonable; if the decisions were treated as measures under Article 34 they were justified under Article 36 as proportionate measures to protect public order in light of available resources and the margin of appreciation afforded to national authorities.

Divisional Court: [1996] Q.B. 197 (application for judicial review dismissed in part and certain Community law findings made); Court of Appeal: [1998] Q.B. 477 (appeal dismissed); House of Lords: [1998] UKHL 40 (appeal dismissed).