Dulgheriu & Anor v The London Borough of Ealing

A public spaces protection order may protect occasional visitors as well as residents, workers and regular visitors. Whether a person is among “those in the locality” under section 59(2)(a) of the Anti-Social Behaviour, Crime and Policing Act 2014 depends on the local circumstances.

Access to lawful abortion engages private life and personal autonomy under article 8. Targeted protest outside a clinic may interfere with that right despite occurring in public. When balancing articles 8, 9, 10 and 11, no right has automatic precedence. The court must assess justification for itself, apply structured proportionality and focus intensely on the rights’ comparative importance in the particular case. Restrictions may be justified where targeted activity causes persistent psychological harm, deters access to medical services and seriously invades privacy.

Ealing made a public spaces protection order under the Anti-Social Behaviour, Crime and Policing Act 2014. It prohibited abortion-related protest in a safe zone surrounding a clinic, while permitting restricted protest in a designated area about 100 metres from the entrance. Two campaigners challenged the order under section 66.

Turner J dismissed the challenge in [2018] EWHC 1667 (Admin). He held that occasional clinic visitors could be “those in the locality”, that the visitors’ article 8 rights were engaged, and that the restrictions on the protesters’ articles 9, 10 and 11 rights were justified.

The appeal concerned the statutory meaning of “those in the locality”, engagement of article 8, the court’s duty to conduct its own proportionality assessment, and whether the order’s scope and wording struck a fair balance between the competing Convention rights.

1. Appeal dismissed. Section 59(2)(a) of the Anti-Social Behaviour, Crime and Policing Act 2014 does not confine “those in the locality” to residents, workers or regular visitors. Parliament used a deliberately broader expression than the defined class entitled to challenge an order under section 66. Whether occasional visitors are protected depends on the precise local circumstances and the authority’s local knowledge. Ealing could treat clinic users, their families and supporters as being in the locality, particularly where the evidence showed persistent emotional, psychological and potential physical consequences: paras 39–49.

2. A decision whether to have an abortion is intensely personal and falls within private life and personal autonomy under article 8. Protection requires a reasonable or legitimate expectation of privacy, but the use of a public highway does not prevent such an expectation. The protesters identified and directly approached vulnerable clinic users about intimate decisions, publicised their attendance and sometimes deterred or harmed them. Those activities engaged article 8: paras 53–61.

3. When reviewing a restriction under articles 9(2), 10(2) and 11(2), the court must decide for itself whether Convention rights were infringed. It does not merely review the authority’s decision-making process. Read as a whole, Turner J’s judgment applied that merits-based approach despite infelicitous wording in his conclusion: paras 63–74.

4. The protesters’ religious manifestation, expression and assembly received substantial protection. Their public expression on abortion contributed to a debate of public interest even though clinic users were its immediate targets. Nevertheless, articles 8, 9, 10 and 11 have equal status. The required intense focus on their comparative importance permitted the clinic users’ article 8 rights to outweigh the protesters’ rights on these facts: paras 75–95.

5. The restrictions satisfied structured proportionality. They pursued protection of privacy, were rationally connected to that aim, addressed a pressing need and represented the least restrictive effective response. This was more than irritation or offence: the evidence showed lasting harm and deterrence from medical treatment. The designated area preserved a qualified opportunity to protest: paras 82–95.

6. The individual prohibitions were neither impermissibly vague nor excessive. Paragraphs 4(ii)–(vi) were properly read as subsets and examples of the general prohibition on protesting in paragraph 4(i). The justified restriction extended to silent and vocal prayer connected with abortion-related approval or disapproval within the safe zone: paras 96–102.

1. Court of Appeal (Civil Division): By [2019] EWCA Civ 1490, dismissed the appeal and affirmed the validity of the public spaces protection order.
2. High Court, Administrative Court: Turner J dismissed the statutory challenge in [2018] EWHC 1667 (Admin), holding that the order was within Ealing’s power and compatible with the relevant Convention rights.