Dulgheriu & Anor v The London Borough Of Ealing

A public spaces protection order may address activities that adversely affect quality of life without a free-standing requirement that the effect be assessed by reference to a reasonable or objectively resilient person. Vulnerable people and visitors may be included among “those in the locality”.

Where Convention rights are engaged, the court should conduct an intensive, structured proportionality review. It must assess the measure objectively, but remains a reviewing court rather than the primary policy-maker. A safe zone around an abortion clinic may be proportionate where substantial evidence demonstrates serious intrusion into clinic users’ privacy and less restrictive, individual-based remedies would not adequately address the problem.

The claimants, members of the Good Counsel Network, challenged a public spaces protection order made by the London Borough of Ealing under the Anti-Social Behaviour, Crime and Policing Act 2014. The order created a safe zone around a Marie Stopes clinic and prohibited specified protest, counselling, communication, recording, display and amplified-audio activities within it. A designated area permitted limited protest at a distance from the clinic.

The claimants argued that the statutory conditions were not met, that the evidence was inadequate, and that the order disproportionately interfered with rights under Articles 8, 9, 10 and 11 of the Convention. The central issues were whether there was a detrimental effect on quality of life, whether clinic users were among those in the locality, and whether the restrictions were necessary and proportionate.

1. The claim was dismissed. The court declined to quash the public spaces protection order, in whole or in part.
2. Section 59 of the Anti-Social Behaviour, Crime and Policing Act 2014 did not require a free-standing objective-detriment test. Feelings of upset, offence, anger and annoyance could contribute to a detrimental effect on quality of life. Local authorities could take account of vulnerable and resilient people alike. The statutory language did not justify imposing a general threshold based on the standards of a person of ordinary robustness.
3. “Those in the locality” was not confined to residents, workers or regular visitors. The wording was deliberately wider than the definition of an “interested person” entitled to challenge an order under section 66. Clinic users and their companions could therefore be considered.
4. The evidence available to the defendant, including consultation responses, witness statements, incident records and representations from affected organisations, gave reasonable grounds for satisfaction that the activities had a detrimental and continuing effect. Consultation was not a judicial evidential process, and the court’s task remained review rather than merits determination.
5. The activities engaged the Article 8 rights of clinic users. Their focused exposure to public attention while attending for a possible or completed abortion was materially different from casual observation of a person walking in a public street. The Article 8 rights of other visitors, residents and staff were not established on the authorities and facts before the court.
6. The court applied structured proportionality. Protecting clinic users’ privacy was a legitimate aim. The safe zone had a rational connection with that aim because it enabled users to enter and leave without inevitable close scrutiny. The order was necessary and proportionate in the circumstances, having regard to the substantial evidence, its limited duration, the designated protest area and the inadequacy of individual-based alternatives.
7. Proceedings, injunctions, police intervention and Community Protection Notices would depend on identified unlawful conduct or named individuals and would not adequately address a changing group using a particular space. The order’s application to both sides of the debate was also justified by the practical difficulty and democratic objection involved in selecting only one group for exclusion.
8. The decision was fact-sensitive and did not authorise local authorities to impose safe zones around abortion clinics as a matter of course.

First-instance claim in the Administrative Court. No earlier decision in the same proceedings is stated in the judgment.