DB v Chief Constable of Police Service of Northern Ireland

Police have common law powers, reinforced by section 32 of the Police (Northern Ireland) Act 2000, to prevent crime. Since organising or joining an unnotified public procession is an offence under section 6(7) of the Public Processions (Northern Ireland) Act 1998, those powers extend to stopping such a procession.

The absence of a statutory power to ban a parade does not negate the power to stop an illegal one. Article 11 ordinarily permits prior-notification requirements and dispersal for non-compliance. Only special circumstances involving a genuinely spontaneous and immediate response may displace notification. Police retain substantial operational discretion, but must exercise it with a correct understanding of their legal powers. That discretion remains subject to judicial scrutiny.

Following a decision concerning the flying of the Union flag at Belfast City Hall, loyalist protesters participated in weekly, unnotified processions through or beside the Short Strand area. The processions caused serious disorder, sectarian abuse and attacks on residents’ homes. The Police Service of Northern Ireland policed the events but initially took no action to stop the processions.

The appellant, a Short Strand resident, sought judicial review. Treacy J held in [2014] NIQB 55 that the police had misunderstood their powers, failed to appreciate the significance of the notification offence and breached their statutory obligations. The Court of Appeal allowed the Chief Constable’s appeal in [2014] NICA 56, concluding that the police had exercised a broad operational discretion in response to risks of violence.

The central question before the Supreme Court was whether the police approached the decision whether to stop the processions with a proper understanding of their legal powers.

1. Disposition. The Supreme Court unanimously allowed the appeal. Lord Kerr delivered the judgment, with which Lord Neuberger, Lord Reed, Lord Hughes and Lord Dyson agreed.

2. The police had ample legal power to stop an unnotified procession. Section 6(7) of the Public Processions (Northern Ireland) Act 1998 made organising or participating in such a procession an offence. The police possessed common law powers to prevent crime, while section 32 of the Police (Northern Ireland) Act 2000 expressly confirmed their duty to do so. Although the police could not themselves ban a procession under the statutory scheme, they could stop an illegal procession. The Parades Commission had no power to intervene unless a procession had been notified.

3. The police had not approached the processions within that legal framework. Their records concentrated on public-order powers, possible Convention rights, supposed gaps in the legislation and attempts to involve the Parades Commission. They failed to recognise that an unnotified procession was itself criminal and could be prevented for that reason. Treacy J had therefore correctly found that the police laboured under a material misapprehension concerning their powers. That error alone required the appeal to be allowed.

4. Article 11 did not require the police to facilitate these processions. Applying Eva Molnar v Hungary, Application 10346/05, prior notification ordinarily constitutes a lawful restriction on freedom of assembly, and absence of notification may justify dispersal. The exception concerns special circumstances in which an immediate, spontaneous response to a current event is warranted. The weekly processions were planned, recurring and violent. The police were obliged, so far as operationally possible, to prevent the illegal processions and protect residents’ article 8 rights.

5. The police response had not, however, undermined the 1998 Act. Their conduct resulted from a mistaken understanding rather than a considered or wilful attempt to weaken the legislation. The legal position was nevertheless clarified: unnotified processions could be stopped solely because they were unnotified.

6. Police retain a definite area of operational discretion. Proportionality has a role when assessing compliance with positive obligations under article 8, and courts must avoid hindsight when reviewing difficult operational decisions. Operational discretion is not immunity from judicial scrutiny, as explained in H v Commissioner of Police for the Metropolis [2013] EWCA Civ 69. Any assessment must begin from a correct understanding of the available legal powers.

7. The Court of Appeal should also have shown greater restraint before reversing the first-instance findings. The principle in McGraddie v McGraddie [2013] UKSC 58 retains force where findings are based on affidavits and contemporaneous documents, although the case for restraint may be less strong than where oral evidence was heard.

8. The Court of Appeal’s decision was reversed. A declaration was made that, when handling the Belfast flags protest during December 2012 and January 2013, the police misconstrued their legal powers to stop processions passing through or adjacent to the Short Strand area.

1. United Kingdom Supreme Court: In DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7, the court unanimously allowed the appeal, reversed the Court of Appeal and declared that the police had misconstrued their legal powers.

2. Court of Appeal in Northern Ireland: In [2014] NICA 56, the court allowed the Chief Constable’s appeal. It held that the Public Processions (Northern Ireland) Act 1998 had not been undermined and that the police response was proportionate.

3. High Court of Justice in Northern Ireland: In [2014] NIQB 55, Treacy J held that the police had materially misunderstood their powers to prevent unnotified processions and had failed to act in accordance with section 32 of the Police (Northern Ireland) Act 2000.