Police Discretion and the Rule of Law: Economic Community Rights versus Civil Rights

Publication Date01 Jul 2000
AuthorCatherine Barnard,Ivan Hare
Police Discretion and the Rule of Law: Economic
Community Rights versus Civil Rights
Catherine Barnard and Ivan Hare*
The final domestic chapter of the live animals export saga has closed with the
decision of the House of Lords in RvChief Constable of Sussex, ex p International
Trader’s Ferry Ltd (ITF).1The purpose of this comment is to address the issue of
the level of policing which is required by domestic and Community law when
protesters interfere with the pursuit of a lawful trade.
When the major ferry operators decided to stop exporting live animals under
pressure from the animal rights movement, ITF, a group of farmers, livestock
exporters and hauliers, chartered their own vessel to continue their trade. ITF’s
attempts to use the Sussex port of Shoreham were, however, met with large-scale
opposition from animal rights protestors. Ultimately, the Chief Constable of
Sussex wrote to inform ITF that the Sussex police would in future permit only two
sailings from Shoreham per week since ‘the resources being utilised at present are
of such a scale that they significantly impact upon my ability to deliver policing
services in other areas’.2This decision rendered ITF’s charter-party uneconomic
and, as a result, the company sought judicial review on the basis of European
Community law and domestic law.3
1. The right to export
ITF’s claim under European Community law was successful before the Divisional
Court but did not persuade the Court of Appeal. It was based on Article 34 (new
Article 29),4which provides that ‘Quantitative restrictions on exports, and all
measures having equivalent effect, shall be prohibited between Member States’.
The Divisional Court held that the exports of live animals were restricted by the
Chief Constable’s decision to instruct his officers to prevent a convoy from going
through to the port whenever this might cause a breach of the peace. Such a
restriction was therefore prohibited under Article 34 (new Article 29) unless it
could be justified by the public policy derogation under Article 36 (new Article
30). The Divisional Court found the restrictions unjustified; the Court of Appeal
held the reverse.
ßThe Modern Law Review Limited 2000 (MLR 63:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 581
* Both Fellows of Trinity College, Cambridge.
We should like to thank Professor S Weatherill for his helpful comments on an earlier draft.
1 [1999] 1 All ER 129. The decisions of the Divisional Court ([1996] QB 197) and the Court of Appeal
([1998] QB 477) were the subject of a previous note by the present authors at (1997) 60 MLR 394
which contains a more extensive account of the facts.
2 Quoted by Lord Slynn, 133ff.
Before the Court of Appeal, ITF also claimed damages for breaches of Arts 5 and 34 (new Arts 10 and 29).
4 It was common ground between the parties that the Chief Constable was an emanation of the United
Kingdom government for the purposes of Community law (see Case 222/84 Johnston vChief
Constable of the RUC [1986] ECR 1651). See also Case C-1/96 RvMAFF, ex parte Compassion in
World Farming [1998] ECR I-1251.

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