What the Supreme Court judgment really says about protests

Those were the days when local authorities had the power to disperse, on pain of death, any gathering of 12 or more people without giving any specific reason.

During the anti-Catholic Gordon Riots of 1780 there was some confusion as to whether or not authorities had the power to disperse crowds before the trouble kicked off. This was cleared up by the then Chief Justice the Earl of Mansfield who explained that the Act existed to disperse crowds and did not take away from the authorities’ pre-existing responsibilities to stop people determined to commit crimes from assembling in the first place. He presumably said this with feeling: his own house was destroyed as the rioting spiralled out of control.

Times change and the law changes to reflect this. Yet you can discern the ghostly echo of Mansfield’s words in the judgment of the Supreme Court on the conduct of the PSNI over the flag protests.

Let us examine the background to the judgment and the grounds on which it was made. It is important to do so because much of what has been said to date in the media about it is misleading.

When the flag protests started in the winter of 2012 the PSNI set up “Operation Dulcet” to develop the police response.  It was led by Assistant Chief Constable Will Kerr who was designated “Gold Commander”.  In his judgment Lord Kerr was keen to stress: “They strove to deal with those difficulties by using different policing techniques and strategies; responding to intelligence reports; considering representations made by community leaders; continuously re-evaluating their decisions; and consulting interested parties who might contribute to the resolution of the problems caused by the protests.”

Critically in early December 2012 the police decided not to prevent a protest scheduled for Saturday 8 December on the grounds, according to PSNI records that there was “a need to try and facilitate some form of protest at Belfast City Hall to allow for some venting of anger and [relief of] community tension on this issue”.

So therefore from the 8^th December 2012 there were weekly protests outside Belfast City Hall. Those joining these protests from the east of the City, walked down and returned past the Short Strand and on several occasions houses were attacked there and there was street violence. A resident of that community started the court action that ultimately led to the Supreme Court ruling.

The judgment gives a sharp insight into just how complex and difficult public order policing has become.

Today peaceful assembly and protest is a human right, as specified in Article 11 of the European Convention of Human Rights. It is not, however an absolute right: it is one to be balanced against the rights of others, specifically Articles 2 and 8 which cover the right of life and right to a private life.

Until 1998 the decision as to which right should prevail was in the hands of the police. And given the highly charged and politically sensitive nature of parading in Northern Ireland officers had another factor to weigh as well – the impact on public safety of the decision that they made. This would often be what they feared might happen if a parade was banned. This in turn made them open to accusations of political policing.

This was not what the police force wanted as it adjusted to a new Northern Ireland. How could it be universally seen to be impartial when it was adjudicating on such issues? It was in an impossible position.

Politicians agreed and the Public Processions (Northern Ireland) Act 1998 passed into law. It created the Parades Commission to decide on parading. Organisers are required to apply to the Commission when they plan a parade – and the Commission may then go on to impose conditions such as the route, timings and numbers attending. It does not have the power to ban a parade – that rests with Secretary of State and has never been exercised.

However it is an offence under the Act for organisers not to notify police about a parade and to organise or take part in a parade which is not notified and also to fail to comply with any conditions imposed by the Parades Commission. The purpose of this was clear – to ensure that all proposed parades were controlled by the Commission.

For absolute clarity, Section 6(7) states: “ A person who organises or takes part in a public procession  (a) in respect of which the requirements of this section as to notice have not been satisfied; or (b) which is held on a date, at a time or along a route which differs from the date, time or route specified in relation to it in the notice given under this section, shall be guilty of an offence.”

Therefore organising or taking part in an unnotified parade is a crime.

None of the flag protests were notified which created a significant dilemma for the police. Yes, they could identify and subsequently arrest and charge those taking part, that was clear, but could they stop the protests taking place in the first place?  

The police took the view that they could not, and that was the central issue in the court case.

In an interview given to the Irish News Mr Kerr stated there was “no such thing as an illegal parade under the Public Processions Act, it doesn’t exist.” He also said that the police had “no power to stop an illegal parade under the Public Processions Act, the offence is taking part in an un-notified parade.”

So although the police could arrest and charge those taking part they could not stop the parades in the first place. This would obviously have serious implications for the Parades Commission because it is vital that the authorities do have the power to enforce the requirement to notify planned parades.  

However, and this was the key finding, Mr Kerr was wrong.

The court ruled that the police have a duty both at common law and under the Police Act 2000 to prevent crime – and as taking part in an unnotified parade is a criminal offence, then they should have factored that into their decisions.

In his judgment Lord Kerr said: “The police did not have power to ban the parades but they had ample legal power to stop them. Contrary to ACC Kerr’s stated position, they could indeed be stopped solely because they were unnotified. There certainly was such a thing as an illegal parade under the Public Processions Act.”

However we should not be too hasty in concluding from this that from this point onwards unnotified parades will always be prevented.

This would be to ignore the fact that the police have operational discretion and do have to factor in the consequences of enforcing bans. So therefore the judgement is not stating that the flag protests should have been stopped but pointing out that they were illegal and that the PSNI’s duty to uphold the law should have been factored into decisions: “Stopping the parades without taking account of what further violence that might provoke was not an option. But the operational difficulties required to be assessed in the correct legal context.”

And it is because the PSNI misconstrued its own powers that the appeal was upheld. It does not follow from this that they would necessarily have acted differently if they had been aware of their full powers, only that they should have considered the option and did not.

Also, and this is important, having the power to stop an unnotified parade is not akin to banning one. It does not imply that the PSNI somehow does not approve of the gathering, it is merely upholding its duty. So the judgment does not bring us back to the days before the Parades Commission.  

After the judgment it was reported that some flag protestors are considering appealing against their convictions. It is hard to see what difference the ruling makes to them. The question of whether or not taking part in an unauthorised parade is a criminal offence was not in dispute. Careful reading of the judgement reveals that it is precisely because it is an offence that police should have realised they had powers to stop the parades in the first place.