Singh, R (on the application of) v Chief Constable of West Midlands Police

The dispersal regime in the Anti-social Behaviour Act 2003 can apply to protests where group conduct causes, or is likely to cause, intimidation, harassment, alarm or distress. A valid authorisation for a locality need not identify the particular form of anti-social behaviour later encountered. The statutory powers remain subject to objective justification, proportionality and public law controls. Alarm or distress alone may not always justify dispersal, especially where caused by unusually sensitive observers. Peaceful and lawful protest remains protected by Articles 9, 10 and 11, but those rights must be balanced against the rights of others. Under section 30(7), the conduct of one or more members may be treated as the conduct of the group.

The appellant was a Sikh protester opposing the production of Behzti at the Birmingham Repertory Theatre. Following incidents in which protesters entered the theatre, refused to leave, caused alarm and allegedly threatened staff, the police issued a dispersal direction under section 30 of the Anti-social Behaviour Act 2003. The appellant refused to comply, was arrested and accepted a police caution.

The Divisional Court dismissed his judicial review claim: [2005] EWHC 2840 (Admin). The appeal challenged whether section 30 applied to protests and whether an existing authorisation directed at seasonal anti-social behaviour could lawfully be used against protesters. A renewed application for permission was also made on proportionality.

1. Interpretation. The appeal was dismissed on grounds 1 and 3, and permission to appeal on ground 2 was refused. The wording and structure of section 30 of the Anti-social Behaviour Act 2003 made it compellingly clear that the regime could apply to protests during which anti-social behaviour occurred. Parliament had expressly excluded only narrowly defined categories of lawful trade-union conduct and notified public processions. There was no basis for creating a wider exclusion for protests or for reading the section down under section 3 of the Human Rights Act 1998.
2. Authorisation. A valid authorisation for a locality was not activity-specific. The powers under section 30(3) to (6) were otherwise freestanding and could be used for any anti-social behaviour in that locality satisfying the statutory conditions, even if the behaviour was unforeseen and differed from that which had prompted the authorisation. Requiring a separate authorisation for every successive manifestation of disorder would be unworkable. The safeguards included the statutory conditions for authorisation, the requirements concerning reasons and publicity, the conditions for a dispersal direction, proportionality and ordinary public law review.
3. Threshold and proportionality. Section 30 did not require the police to wait for serious public disorder or actual physical harm. Its threshold differed from the higher conduct threshold under sections 12 to 14 of the Public Order Act 1986, and the powers were complementary. Nevertheless, officers could not act on a whim. A direction had to be objectively justified and proportionate; alarm or distress caused by particularly sensitive observers might not suffice in every case.
4. Application. Articles 9, 10 and 11 protect qualified rights. The court had to balance the protesters’ rights with the rights of the theatre’s author and producers, the audience and other members of the public. Under section 30(7), the relevant presence or behaviour could be that of one or more people in the group. On the evidence accepted for judicial review, threats, forced entry, refusal to leave, alarm and likely further disorder supplied reasonable grounds for the direction. The police had considered less restrictive alternatives, and dispersal was the least intrusive and inflammatory response. The appeal was therefore dismissed.

• Court of Appeal (Civil Division): The court refused permission to appeal on ground 2 and dismissed the appeal on grounds 1 and 3.
• Divisional Court, Queen’s Bench Division: The judicial review claim was dismissed on 4 November 2005: [2005] EWHC 2840 (Admin).