R Coventry Airport and Another and Others Dover Harbour Board and Others Associated British Ports and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice SIMON BROWN,I,LORD JUSTICE SIMON BROWN,MR JUSTICE POPPLEWELL |
| Judgment Date | 12 April 1995 |
| Judgment citation (vLex) | [1995] EWHC J0412-2 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 April 1995 |
| Docket Number | CO-330394: CO-020195: CO-64995 |
[1995] EWHC J0412-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION CROWN OFFICE LIST
Before; Lord Justice Simon Brown Mr Justice Popplewell
CO-330394: CO-020195: CO-64995
SIR CHRISTOPHER PROUT QC and MISS K MCHUGH (Instructed by Beachcroft Stanleys, London, EC4A 1BN) appeared on behalf of Phoenix Aviation Ltd.
MR S ISAACS QC and MR C LEWIS (Instructed by Sharpe Pritchard, agents for Coventry City Council) appeared on behalf of Coventry Airport & Anor.
MR D PANNICK QC and MR D ANDERSON (Instructed by Mowll & Mowll, Dover CT16 1PN) appeared on behalf of Dover Harbour Board.
MR D VAUGHAN QC and MR P MOSER and MR D LLOYD-JONES (Instructed by Cole & Cole, Oxford, OX2 052) appeared on behalf of Peter Gilder & Sons.
MR R PLENDER QC and MR P DUFFY and MISS P WATSON (Instructed by Bindman & Partners, London, NW1 2SA) appeared on behalf of Compassion in World Farming
MR C HADDON-CAVE (Instructed by Solicitor for the National Farmers' Union, London, WC2E 9LY) appeared on behalf of the NFU
MR R FIELD QC and MR N GIFFIN (Instructed by R B Pearce, Legal Services, Associated British Ports) appeared for Associated British Ports.
MR R GORDON QC and MR N GREEN (Instructed by The City Solicitor, Plymouth City Council) appeared on behalf of Plymouth City Council.
Lord Justice SIMON BROWN
Introduction
The export of live animals for slaughter is lawful. But many think it immoral. They object in particular to the shipment of live calves for rearing in veal crates, a practice banned in this country since 1990. The result is that for some months past the trade has attracted wide-spread concern and a great deal of highly publicised protest. Some of that protest is lawful; some alas is not. The precise point at which the right of public demonstration ends and the criminal offence of public nuisance begins may be difficult to detect. But not only is all violent conduct unlawful; so too is any activity which substantially inconveniences the public at large and disrupts the rights of others to go about their lawful business.
It is the actual and threatened unlawful activity of animal rights protesters which underlies these three judicial review challenges. Two are brought by those wishing to export live animals, respectively through Coventry Airport and Dover Harbour; they seek to compel the port authorities to accept their trade. The third, by contrast, is brought by Plymouth City Council against its own harbour authority in an attempt to ban the trade. It is the fear of unlawful disruption which has prompted Coventry and Dover to refuse the trade (Coventry's ban being subject to the court first lifting the injunction requiring it at present to accept the trade); and which prompts Plymouth City Council to seek a similar ban. All three authorities, let it be clear at once, expressly now disavow animal welfare considerations as any part of their motivation (although earlier it was otherwise with both Coventry and Plymouth City Councils).
The central questions raised by all three applications are these:
1.Given that their trade is lawful, what if any rights are enjoyed by animal exporters to have it accepted by the public authorities administering the respective (air and sea) ports here under consideration? Or, putting it the other way round, what, if any, discretion have the authorities to refuse it?
This question falls to be decided by reference to the respective statutory regimes under which each of these authorities operates.
2.Assuming the authorities have a discretion to refuse trade which it would be within their physical capacity to handle, can they properly refuse it so as to avoid the disruptive consequences of threatened illegality? When, if ever, can a public authority properly bar lawful activity in response to unlawful protest? How absolute is the principle that the rule of law must prevail?
3.If it be lawful under national law for these authorities to refuse this trade so as to avoid the disruptive consequences of accepting it, does such refusal nevertheless contravene European Community law?
With that brief introduction let us turn at once to indicate something of the facts of these cases. These are before the court in the greatest detail. So as not to overburden this judgment, however, the barest summaries must suffice.
II
Coventry —the facts
The first applicant is an air transport company, based in Coventry, engaged in the business of transporting cargo including livestock by air. The other applicants are a consortium of exporters of cattle, including veal calves, by air to the Continent. Coventry Airport deals substantially in freight transport and has all the facilities required for the export of livestock.
In October 1994 Phoenix approached the respondents with a view to commencing regular flights from their airport.
There is deep dispute between the parties as to whether in early November agreement was reached whereby the respondents gave their unqualified consent to the applicants' use of the airfield. The applicants so contend but that question has been put over for decision if necessary in later proceedings —as a private law claim in contract. It is sufficient for present purposes to note merely the following. The applicants were permitted to operate trial flights on 5th and 6th November 1994. Despite the apparent success of these, however, the Council, following the intervention of Compassion in World Farming (CWF), an animal rights group, decided to suspend them. The applicants' initial judicial review challenge was directed to this decision, taken, it was said, on impermissible animal welfare grounds -see R v Somerset County Council ex p Fewings (1995) 1 AER 513—and also in breach of contract. That, however, for present purposes is history. On 11th November 1994 Wright, J. granted the applicants an interlocutory injunction restraining the respondent Council from:
"Suspending or continuing to suspend the first applicants from operating by aircraft the business of the carriage of veal calves from Coventry Airport to …..Holland, Belgium or France."
On 15th November 1994 Tucker, J. granted leave to move for judicial review and continued the interlocutory injunction.
On 21st December 1994 an Air Algérie aircraft chartered by the applicants crashed on coming in to land at Coventry Airport, killing all five people on board. The applicants themselves then suspended flights until 26th January 1995, when a replacement aircraft flew to Amsterdam.
Meanwhile, on 23rd January 1995, Mr. Brewer, the Assistant Chief Constable of Warwickshire, had written to the airport manager, expressing his concerns should the applicants' flights resume:
"Should the flights re-start I would anticipate the return of demonstrators, probably in greater numbers than we have previously experienced. My clear responsibility is to ensure the free passage of the vehicles into your airport, whilst at the same time accommodating protest within the law. My concerns at this time, however, relate not to that aspect of the situation, but the possible outcome of a Police operation which, if successful, allows vehicles to gain entry to the airport. In fact I have very grave concerns for the integrity of airside safety and security should vehicles carrying animals actually gain access."
Mr. Brewer then explained that his concerns were based upon intelligence reports, incidents which had already occurred within the perimeter of the airport, a recognition that the underlying issue of animal welfare was causing "an intensity of emotion…..leading many reasonable people to behave in a direct and confrontational way", the ineffectiveness of the existing perimeter fence, the virtual total absence of security staff, and his recognition that "incursion by even a few demonstrators…….would……seriously compromise both ground and air safety conditions".
The letter concludes thus:
"Despite my acknowledged responsibilities in relation to the free passage of vehicles arriving at the airport and the effective management of any protests by demonstrators, the constabulary does not have a responsibility to protect the security of the airport from trespass. In the circumstances I must ask you to undertake, as a matter of urgency, a comprehensive review of your security arrangements and to take whatever steps are necessary to enhance them accordingly."
In the light of that letter and the possible resumption of flights, Mr. Wood, the respondents' City Secretary, arranged a meeting of the City Development and Employment Policy Co-ordinating Committee, the Committee responsible for the airport, to take place on 27th January 1995. The Committee considered a report prepared by Mr. Wood himself together with Mr. Brewer's letter and other documents. Under the heading "Matters of public interest that need to be considered" the report summarised the effect of the Assistant Chief Constable's letter and continued thus:
"4.1…….The City Engineer considers that to make the Airport more appropriately secure in the present circumstances would require enhanced fencing around the entire perimeter of the Airport and the provision of security patrols and barriers at each access. He estimates that the costs of such work could be in the region of £400,000 and would take at least 2–3 months to install. As Members are aware, the City Council does not have the resources to provide these enhanced...
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