In late 2012 and early 2013, weekly loyalist marches passed through Belfast’s Short Strand without notice to the Parades Commission, and the police did not stop them. The Supreme Court held that this rested on a misunderstanding of the law. Organising or taking part in an unnotified parade was a criminal offence, so the police had power, and a duty, to prevent it, rather than only managing disorder and gathering evidence.
The protests and the claim
Until 3 December 2012 the Union flag flew over Belfast City Hall throughout the year. On that date the City Council decided that it should fly only on designated days. Protests spread across Northern Ireland. In Belfast, from 8 December 2012 until March 2013, marchers met in East Belfast, passed through the Short Strand to the City Hall, and returned by the same route. Most Short Strand residents were perceived as nationalist; the marchers were loyalists. The return processions were often large. There was substantial violence, including sectarian abuse, objects thrown at residents, and attacks on homes. DB, the appellant, lives in the Short Strand. His home and his neighbours’ homes were attacked during parades in December 2012 and January 2013.
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None of the Belfast flags parades was notified to the Parades Commission. Lord Kerr recorded that, until March 2013, the police took no action to stop them. On 14 February 2013, however, a review of strategy included a decision to stop the unnotified parade, influenced by falling numbers, community views, resources, and the effect on Short Strand residents. DB’s judicial review, begun on 31 January 2013, was first aimed at a parade planned for 2 February and at the police’s failure to promise that they would prevent it. As the police’s reasons became clear, the case turned on their failure to recognise and use legal powers to stop the parades. A claim that the Secretary of State should have prohibited the processions was dismissed and was not appealed.
The parade regime
Before 1998 the police decided whether contentious parades should proceed. That put them in an invidious position and exposed them to claims that they were taking sides. Following the North report, the Public Processions (Northern Ireland) Act 1998 created the Parades Commission. The Commission may impose conditions on a proposed procession, including its route, but it cannot ban one. The Secretary of State may prohibit a procession; that power has never been used.
The scheme depends on notice. A person proposing to organise a public procession must notify the police, who must send the notice to the Commission. Section 6(7) makes it an offence to organise or take part in a procession which has not been notified, or which departs from the notified date, time or route. Without notification, the Commission’s powers are not triggered. The police nevertheless have a common-law power to prevent crime. Section 32 of the Police (Northern Ireland) Act 2000 confirms their duty to prevent offences. They could therefore act because a parade was likely to involve public-order offences, and also because an unnotified procession was itself an offence.
The police view
Assistant Chief Constable Will Kerr led the operation. He said that the police had no specific power to ban a procession. Absent a Commission determination or a prohibition by the Secretary of State, he said, they could use only general public-order powers. Where notice had not been given, their role was to collect evidence, refer cases to prosecutors, and keep the peace. He said parades could be stopped, but not solely because they were unnotified. Concern about the risk to life if protesters were kept out of the city centre weighed heavily with him.
Strategy records did not treat an anticipated unnotified parade as a crime which the police should prevent. When local representatives said in January 2013 that the police were facilitating illegal parades, senior officers discussed obtaining legal advice with the Commission, rather than examining their own power to stop the marches. Even when stopping was discussed on 14 February, the record referred to the absence of a legislative fix. In an interview published on 16 February, Mr Kerr said that there was no such thing as an illegal parade under the 1998 Act and that the police had no power under that Act to stop one; the offence, he said, was taking part in an unnotified parade. He also said that the police had to facilitate peaceful protest even if it was technically unlawful.
Lord Kerr stressed that this was not a case about lack of effort. Large numbers of officers were deployed, many were injured, and offenders were detected and prosecuted. The issue was the police’s understanding of their powers.
The courts below
Treacy J held that, between 8 December 2012 and January 2013, Mr Kerr did not consider stopping the weekly parades. When he later did, the judge found, he wrongly believed that the 1998 Act inhibited him. The judge described him as labouring under a material misapprehension of police powers. Failure to notify, he held, gave the police powers equivalent to those available where organisers defied a Commission determination. He concluded that the police had undermined the 1998 Act, failed to comply with section 32, and violated DB’s article 8 right to respect for his home and private life.
The Court of Appeal allowed the Chief Constable’s appeal. The Lord Chief Justice treated the central issue as whether the response took account of violence and risks to life, both locally and more widely. He said that Mr Kerr was right: the police had no power under the 1998 Act to stop an illegal parade, that power belonging only to the Secretary of State. The police, he said, had a wide discretion and need not intervene whenever a crime was being committed. The court held that the Act had not been undermined and that the protection of residents’ article 8 rights had been proportionate.
The Supreme Court’s decision
Lord Kerr, with whom Lord Neuberger, Lord Reed, Lord Hughes and Lord Dyson agreed, held that the Court of Appeal had not met Treacy J’s point. Participating in an unnotified parade was a criminal offence under section 6(7). The police therefore had common-law power, and a section 32 duty, to prevent that offence. It was not an answer that only the Secretary of State could ban a procession. The early city-centre restrictions were directed at preventing disorder, not at stopping a parade because it was unnotified. Urging the Commission to act, when lack of notice meant that it legally could not, showed a failure to see that only the police could stop these parades.
Once that position is understood, Lord Kerr said, an unnotified parade and a parade which defies a Commission determination call for the same kind of policing judgment. In each case the question is whether the parade is lawful, not whether the police should decide, as they did before 1998, whether it ought to be allowed. The fact that the 1998 Act did not enact every North report recommendation did not remove those powers.
Article 11 protects peaceful assembly, but restrictions prescribed by law may be imposed where necessary for public safety, the prevention of disorder or crime, or the rights of others. The European Court of Human Rights has held that a notification requirement does not normally strike at the essence of the right, and that absence of notice may justify dispersal except in special circumstances, such as a spontaneous response to a current event. Mr Kerr’s belief that technically unlawful but peaceful protest had to be facilitated was therefore misplaced. These parades were planned, not spontaneous, and they were not peaceful. The police had no obligation to facilitate them. They had a duty, so far as possible, to prevent plainly illegal parades and to protect article 8 rights. Stopping a parade without considering the further violence that might follow was not an option, but those operational constraints had to be assessed in the correct legal context.
Lord Kerr accepted that senior officers had misunderstood the law. He did not accept that they intended to weaken the Act, or that the Act had in fact been undermined. The Commission’s lack of a role without notification, and the police’s inability to ban a parade, reflected legislative choice. The police still had ample power to stop an unnotified parade, including solely because it was unnotified. There was, contrary to Mr Kerr’s interview, such a thing as an illegal parade under the Act. The legal position was now clear.
The central issue was therefore whether the police decided whether to stop the parades with a proper understanding of their powers. A mistaken view of those limits would cloud that judgment. On that ground alone, Treacy J was right and the appeal had to be allowed. Operational discretion remains important and is not the same as immunity from review, and proportionality can matter in judging a positive obligation to protect article 8 rights. Lord Kerr nevertheless regarded debate about what would have been proportionate, or what the police ought to have done, as unhelpful once they had adopted the wrong legal context and the Court of Appeal had failed to recognise that. He did not read Treacy J’s reference to enforcement inertia as a finding of deliberate indifference. He also considered that the Court of Appeal should have been more reluctant to reverse the trial judge’s findings.
Verdict: The Court allowed DB’s appeal and declared that the police had misunderstood their powers to stop parades passing through or near the Short Strand. It did not decide what the police should have done in any individual operation.
Source: DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7
