R (Parminder Singh and Others) v Chief Constable of West MidlandsPolice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Wall,Lady Justice Hallett |
| Judgment Date | 28 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1118 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2005/2611/QBCOF |
| Date | 28 July 2006 |
[2006] EWCA Civ 1118
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT, QUEEN'S BENCH DIVISION
(MAURICE KAY L.J. and PENRY-DAVEY J.)
Lower Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Wall
Lord Justice Wilson and
Lady Justice Hallett Dbe
Case No: C1/2005/2611/QBCOF
No: (CO/162/05)
Miss Monica Carss-Frisk Q.C. and Mr David Pievsky (instructed by Public Interest Lawyers) for the Appellant.
Miss Fiona Barton and Miss Samantha Leek (instructed by Force Solicitors West Midlands Police) for the Respondent.
Lady Justice Hallett
This appeal arises from the enactment of the Anti-social Behaviour Act 2003 ("the Act") which gave new powers to the police to deal with anti-social behaviour. In this case the West Midlands police force relied upon the provisions of section 30 of the Act to order the dispersal of a group of protesters which included the Appellant. He refused to obey. He was arrested and accepted a police caution. He seeks to challenge the legal validity of the dispersal order (and hence the caution) having failed before the Divisional Court (Maurice Kay LJ and Penry-Davey J) which on 4 November 2005 dismissed his application for judicial review.
Factual background
The Birmingham Repertory Theatre is situated in Centenary Square adjacent to the main entertainment area of Birmingham City Centre. It comprises a main auditorium and a studio theatre access to both of which is from the main foyer. In about October 2004 members of the Sikh community learnt of the theatre company's decision to mount a production in the studio theatre of Behzti a play to which they took great exception. They considered it grossly offensive to their religion and their religious beliefs. The word "Behzti" means dishonour and the play was set in a Gurdwara or Sikh temple. A Sikh priest was shown committing sexual acts in the temple. Having sought legal advice the local police informed leaders of the community that the production of the play was not unlawful. Theatre staff met with members of the Sikh community and invited them to attend the dress rehearsal in an attempt to put their minds at rest. Sadly, there could be no middle ground. According to the Respondent's witnesses the Sikh community wanted the play altered in a way which was unacceptable to the management or the play taken off. The management insisted upon their right to stage the play.
On Thursday 9th December 2004 security officers at the theatre informed the police that threats had been made and daily protests were expected. That evening there were said to be 6–7 Sikh males at the theatre. At that time the protests were peaceful. Leaflets were handed out and perfectly proper attempts made to persuade people that the play was inaccurate, sensational and offensive to Sikhs. The play opened on 10th December and over the ensuing weekend the theatre management were in regular contact with the police.
On 15th December theatre staff notified the police that they had been threatened by protesters who "have said that they will do whatever it takes to break their way in tonight". At 7.07 pm Katrina Jones the theatre manager informed the police that about 25 Sikh protesters had threatened to kill the doormen. 50 or so protesters forced their way into the premises waving banners and chanting. Ms Jones requested immediate police assistance. After considerable negotiation the protesters were persuaded to leave peacefully.
The next day, Thursday the 16th December, Chief Superintendent Goodman arranged a meeting of theatre managers, Sikh community leaders and senior police officers. His aim was to facilitate a new dialogue between the theatre and community leaders. He states that the Sikh leaders asked the police to stop the play on the grounds that it was likely to incite racial hatred. Chief Superintendent Goodman explained that there were no grounds to stop the play continuing and that the purpose of the meeting was to find a peaceful way forward, acceptable to all concerned.
The theatre manager expressed her concern at what she described as the 'huge escalation' in the protest the previous evening. The Sikh leaders warned that the numbers of protesters were likely to increase. One informed the meeting that there may be 'hotheads' protesting who may 'get into the production' and stated that he did not 'think the police can control it'.
At the end of the meeting the Sikh leaders agreed to consider whether they could work with the police to make arrangements for a peaceful protest, one possibility being, for example, the erection of cordons outside the theatre behind which the protesters could protest lawfully. In light of the discussions, another senior officer, Superintendent Bullas, set about reviewing an appropriate policing response. Chief Superintendent Goodman was anxious to avoid arresting any protester for fear of aggravating the situation and resulting in increased racial tension and unrest.
However, as Ms Barton who appeared in this court on behalf of the Respondent Chief Constable observed, his review was overtaken by events. At 3.08 pm. on 16 th December the police were notified that, not satisfied with protesting outside the theatre, approximately 20–30 protesters were trying to get into the theatre. There were approximately 400 people inside the theatre including what Ms Jones described as "elderly Asian women" watching the Behzti play. There was also a large number of children attending a matinee of Roald Dahl's "The Witches" in the main theatre. This, in itself, was a matter of real concern for the management. Police assistance was again requested. A number of officers attended the scene. By the time they arrived the protesters had gained access to the building. About 30 protesters had surrounded Ms Jones asking her "Who can take the play off?" They insisted "It's got to stop". Ms Jones and police officers tried to reason with the protesters. It became clear that for some of them at least their objective was a simple one: it was to close the play down. Officers tried to explain that they could only protest lawfully. One protestor shouted and kicked a plastic poster box. Another set off the fire alarm.
9. At about 3.40 pm Inspector Phillips arrived at the scene. He was aware of the threats that had been made the previous day. He saw 30- 40 protesters inside the building with police and security staff. There was a stand off. The protesters had been asked to leave but had refused. Inspector Philips spoke to some of them. Ms Jones informed him that she was trying to keep the Behzti audience and the children's show audience away from the protesters to avoid their witnessing unpleasant scenes.
Inspector Phillips noticed people outside the theatre looking concerned about what was happening. Ms Jones told him of her concern about customers in the restaurant and bar situated behind the protesters. Some members of the Behtzi audience left because of the situation. Ms Jones asked Inspector Phillips to eject the protesters. Inspector Phillips decided he would use what he thought were his powers to order the protesters to disperse, if necessary. He discussed the options with his senior officer, Chief Superintendent Goodman, on the telephone. They considered doing nothing, or arresting those who refused to leave for breach of the peace or under section 5 of the Public Order Act 1986 and also using their powers under section 14 of the same Act to impose conditions on the assembly. The "do nothing" option was rejected on the basis that it would have allowed "members of the public to be intimidated and distressed by the actions of a few protesters". Ms Carss-Frisk Q.C., who appeared before us on behalf of the Appellant, argues that the officers were wrong to reject the options of monitoring the situation and/or of arresting, if necessary, those who committed specific criminal offences. She argues it was disproportionate and unnecessary to order the whole group of protesters to disperse.
Inspector Phillips shared his senior officer's concern that arresting one or two individuals might lead to an escalation of the disorder. They both considered, therefore, utilising an authorisation notice which was already in force for this area, and to which I shall return, to order the group to disperse. They both believed that asking the crowd to disperse would be the least intrusive method of dealing with the situation and would give the individuals concerned the opportunity to leave peacefully.
Chief Superintendent Goodman described it in this way: he was concerned, he said, to "prevent or minimise disorder over a sensitive issue at a festive time of year in a high profile situation". The situation was delicate, volatile and difficult and he had to balance the legitimate rights of the community to protest peacefully, the rights of the theatre to stage the play and the overarching need to protect the public. He was at pains to ensure that the police were acting and were seen to be acting impartially and sensitively. In any event dispersal directions would be effective for at most 24 hours under the Act.
At approximately 4.13 pm Inspector Phillips informed the group of males that they were to leave the building as they were causing a breach of the peace. Some refused and had to be escorted forcibly off the premises. According to the officers at the scene, the atmosphere became hostile. Outside the building the protesters were shouting and chanting, pushing and...
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