R v Chief Constable of Sussex, ex parte International Traders' Ferry Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,LORD JUSTICE MILLETT,LORD JUSTICE SWINTON THOMAS |
| Judgment Date | 28 January 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0128-9 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 January 1997 |
| Docket Number | No QBCOF 95/1222/D |
[1997] EWCA Civ J0128-9
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF THE DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2
Lord Justice Kennedy
Lord Justice Millett
Lord Justice Swinton thomas
No QBCOF 95/1222/D
LORD LESTER of HERNE HILL QC and MR ADAM LEWIS (Instructed by Solicitor & Deputy Clerk, Sussex Police Authority, Lewes, East Sussex) appeared on behalf of the Appellant
MR PETER ROTH and MR RHODRI THOMPSON (Instructed by Messrs Wynne Baxter Godfree of Brighton, East Sussex) appeared on behalf of the Respondent
1.This is an appeal by the Chief Constable of Sussex from a decision of the Divisional Court of the Queen's Bench Division (Balcombe L.J. and Popplewell J.) which on 26th July 1995 upheld the challenge by International Traders' Ferry Ltd (hereinafter ITF) to two decisions of the Chief Constable set out in two letters dated 10th April and 24th April 1995. The decision of the Divisional Court is now reported—in 1996 QB 197.
2. FACTS
The case concerns the extent of police protection for the customers of ITF, a company involved in the export of livestock through the port of Shoreham, during the early months of 1995 when animal rights protesters were trying to stop the trade. ITF was incorporated in the British Virgin Islands in October 1994 to operate a ferry service taking livestock across the English Channel after the main ferry operators had decided with withdraw from that particular market. The members of the company were farmers, livestock exporters and hauliers, and they knew that their operations would attract protest, so they began by discussing their proposals not only with Shoreham Port Authority, but also with the Sussex Police. They then hired a suitable vessel, the "Northern Cruiser", which was small enough to use the facilities which at that time Shoreham could make available, and it was intended that a daily ferry service would begin on 2nd January 1995. However, on that day and on the following day, a large number of demonstrators prevented the lorries carrying livestock from reaching the port. So on 4th January 1995 the number of police involved in escort duties was increased to 1,125 which the Chief Constable achieved by calling for assistance from adjoining police forces. The larger police force was able to get the lorries through to the port and the daily sailings began.
On 6th January 1995 there was a meeting at Shoreham Police Station when the Assistant Chief Constable, Mr Childs, informed ITF representatives that the level of policing was not easily sustainable.
On 12th January 1995 the Chief Constable and the Treasurer of the Police Authority met Mrs Clarkson and Mr Brown of the Home Office to warn the Home Office that the cost of the policing operation was such that the Police Authority might soon wish to seek assistance by way of special payments from the Home Office. Mr Cartwright, the Clerk to the Police Authority, who was not at the meeting, says that Mrs Clarkson gave a firm indication that until costs had been incurred and had reached six to seven million pounds, the scheme would not be triggered. Mrs Clarkson denies mentioning any threshold figure, but does not deny having created the impression that it was very unlikely that special payments would be made to the Police Authority.
On 14th January 1995 the number of demonstrators had fallen to about 100/150 on Mondays to Thursdays inclusive, and about 350 on Fridays, and the Sussex Police was able to maintain control with about 315 police officers, who could be mustered without resort to "mutual aid" (i.e. calling on adjoining police forces). In addition 24 officers had to be deployed throughout the week policing Shoreham port on a 24 hour basis. Mutual aid to this date had cost Sussex police about £1.2 million. Of course, as the evidence makes clear, it was not easy for Sussex police to meet the demand from its own resources. Senior and experienced police officers had to be taken away from other duties. They had to work overtime, which was both costly and tiring, and over a period their absence was felt in the areas from which they had been drawn. Criminal statistics suggested a rise in certain types of recorded crime, and many important routine operations, such as training, had to be neglected.
On 24th January 1995 the Home Secretary, in answer to a parliamentary question, said that the estimated cost of the police operation at Shoreham to 19th January 1995 was £2.2 million and represented 1.7% of the force budget for 1994 to 1995. As a matter of simple arithmetic, if that rate of expenditure were to continue for a full year it would account for in excess of one third of the force's annual budget.
On 27th January 1995 there was an extraordinary meeting of the Police Authority which was informed that as a result of the informal soundings to which I have already referred, it seemed as if additional Home Office funding was unlikely. Meanwhile, on the ground, all was not going smoothly. The ITF vessel was not always able to sail as expected; Sometimes because of weather, sometimes because of the actions of Shoreham port authority. At one stage the District Council tried to stop sailings using (or perhaps misusing) its planning powers. As a result there was more than one legal action, and to reduce the strain on police resources Sussex police managed to restrict activities at Shoreham to five sailings per week, avoiding weekends and public holidays.
On 23rd March 1995 the police authority met, and considered a report from the treasurer which pointed out that the Home Office criteria for a special payment were that the expenditure was exceptional, unforeseen, and on a scale likely to threaten the efficiency of the force. The Treasurer's report goes on to say that if, after consulting the Inspectorate of Constabulary and looking at the financial position of the police authority, the Home Office is persuaded to assist, it -
"Would then determine the percentage of grant over the normal 51% they would be prepared to support and any threshold which might trigger the grant. In the case of the miner's dispute 100% grant was payable. Not many of these applications are successful. The most recent ones were related to the Hillsborough tragedy and the riots in Newcastle. To date the Home Office have received no formal applications from any other police authorities for additional funding in connection with the costs they have incurred in policing animal exports."
In the event the police authority resolved not to seek additional funding, but on 31st March 1995, when the cost of the policing was estimated to be £4 million, the Clerk to the Police Authority wrote to the Under Secretary of State at the Home Office, setting out the police authority's concerns. Part of that letter reads:-
"There is no denying that there have been excessive extra financial burdens for Sussex police and that resources have been diverted from normal policing to Shoreham. The present police authority has expressed serious concern that it will not be able to hand over to the new authority at 1 April 1995 the financial position it had hoped for. That is because all of its potential reserves and contingencies will have been extinguished and because, following the SCT/ACPO guidance, there will be no cash balances to hand over to the new authority from the two County Councils. The calculated sums having been used towards financing the over-spending.
Furthermore, the need for special operations at Shoreham continues, and possibly more serious than the added costs, is the diversion of manpower within the force over such an extended period. This is having a marked, visible and deleterious effect on policing throughout the rest of the county. Public awareness and concern is increasing, and some Members of Parliament have expressed surprise that we have not formally requested special financial assistance".
The letter then goes on to say that the new police authority might want to seek special financial assistance in the near future.
So I come to 10th April 1995, the day on which the Chief Constable wrote the first of the two letters now complained of. He had a meeting on that day with his Assistant Chief Constables, and received a presentation from A.C.C. Lake as to the impact of the Shoreham operation. With the agreement of his Force Command Team, the Chief Constable then wrote the letter in which he pointed to the demands of the operation upon resources and continued:
"Whilst I would not seek to impose a cost threshold on the policing of any dispute 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. I now have the gravest concerns that the balance between what is being committed to policing the Port Authority area and the policing needs, expectations and rights of the remainder of the community throughout East and West Sussex is no longer equitable."
The Chief Constable goes on to say that he had looked again at the position overall and at the key priorities of the Sussex Police (i.e. reducing crime, the fear of crime, and responding to calls made by the public). His letter continues:
"I am now in a position where it has become impossible to provide the resources necessary to be efficient and effective in these areas throughout the two Counties and at the same time to sustain continuously the level of policing currently committed to policing the port. I have decided that there is no alternative but to reduce the...
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