Livia Tossici-Bolt & Anor v Bournemouth, Christchurch and Poole Council

The court reviewed the validity of a Public Space Protection Order made under the Anti-social Behaviour, Crime and Policing Act 2014 that created a "safe zone" around an NHS-funded abortion clinic. Key legal principles applied were the statutory tests in s 59 (threshold conditions and the reasonableness requirement in s 59(5)), the duty to have particular regard to Articles 10 and 11 under s 72, and the duty under s 6 of the Human Rights Act 1998 to act compatibly with Convention rights including Articles 8, 9, 10 and 11. The court held that the Council had a sufficient evidential basis and lawful discretion to conclude the threshold conditions were met, that the prohibited activities were reasonably tailored to address the detrimental effects shown, and that the Order did not unlawfully extend to private land when properly construed.

The court further held that the interference with protestors' Convention rights was justified as proportionate to protect the privacy and access rights of clinic users and staff. A dispersal-related prohibition was not a free-standing power but tied to a belief that an offence under the Order had occurred and to specified authorised officers; it was therefore lawful and appropriately calibrated. Procedural complaints (including consultation with the chief officer of police) were rejected on the facts. Both statutory and judicial review challenges were dismissed.

Background and parties: The Council made a Public Space Protection Order in October 2022 designating a safe zone around a BPAS clinic providing abortion services. The first claimant (leader of a local pro-life volunteer group) and the second claimant (Christian Concern) challenged the Order by (i) a statutory challenge under s 66 of the Anti-social Behaviour, Crime and Policing Act 2014 and (ii) judicial review respectively. The claimants alleged (among other grounds) that the Order exceeded statutory powers, was disproportionate in breach of Convention rights (Articles 8, 9, 10, 11 and Article 14), improperly covered private land, and conferred an unauthorised power of dispersal.

Nature of relief sought: The first claimant sought statutory quashing of the Order or particular prohibitions; the second claimant sought judicial review relief challenging the Decision and the lawfulness of consultation and dispersal powers.

Issues framed:

• Whether the s 59 statutory threshold was met and the evidence was sufficient;
• Whether prohibitions in the Order were reasonable and proportionate under s 59(5);
• Whether the Order unlawfully extended to private land;
• Whether the Order unjustifiably interfered with Convention rights (Articles 9, 10, 11 and Article 8 for clinic users) and/or discriminated contrary to Article 14 and the Equality Act;
• Whether paragraph 4(g) conferred an unlawful free-standing dispersal power;
• Whether the Council properly consulted the chief officer of police as required by s 72.

Court's reasoning and disposition: The court applied the supervisory judicial review standard to statutory challenges and conducted an intensive review of human rights interferences where applicable. It concluded that:

• The Council had a sufficient and multi-sourced evidential base (consultation responses, clinic reports and incident logs) to conclude activities had a detrimental effect and were likely to recur, satisfying s 59 threshold requirements.
• The prohibited activities were drawn from behaviours evidenced as causing detriment; the Order was tailored to address those harms and thus met the reasonableness test in s 59(5).
• Although the map annexed to the Order included private property within the red boundary, the instrument when read as a whole (heading, recitals, and the text identifying roads/streets covered) was properly construed as applying only to public places; drafting imperfection did not render it ultra vires.
• The interference with protestors' Articles 9, 10 and 11 rights was justified as necessary and proportionate to protect Article 8 privacy and access rights of clinic users and staff; limitations were not arbitrary and contained the safeguard of "reasonable excuse" and enforcement practices (fixed penalty notices) less severe than criminal dispersal where appropriate.
• The dispersal prohibition in paragraph 4(g) was not a free-standing power but operated in conjunction with paragraph 8 and authorised officers; it therefore did not conflict with police dispersal powers in ss 34-39 and was a permissible, proportionate enforcement mechanism.
• The statutory consultation requirement with the chief officer of police had been satisfied in substance: the Council sent the consultation to the Office of the Chief Constable and received a neighbourhood-policing response that was treated as the Chief Officer's response; delegation within the police hierarchy was lawful in context.

The court therefore dismissed both the statutory and judicial review claims, concluding the Order was lawfully made and compatible with the Council's duties under the Human Rights Act 1998.

The claims are dismissed. The court held that the Council lawfully made the Public Space Protection Order: the s 59 threshold conditions were met on a sufficient evidential basis, the prohibitions were reasonable and proportionate to protect clinic users and staff (including Article 8 interests), the Order did not lawfully extend to private land when construed as a whole, the dispersal provision was not an unlawful free-standing power, and the statutory consultation with the chief officer of police was satisfied in substance.