R v Chief Constable of Sussex, ex parte International Trader's Ferry Ltd (pet. all.)
| Jurisdiction | England & Wales |
| Judge | LORD SLYNN OF HADLEY,LORD NOLAN,LORD HOFFMANN,LORD COOKE OF THORNDON,LORD HOPE OF CRAIGHEAD |
| Judgment Date | 11 November 1998 |
| Judgment citation (vLex) | [1998] UKHL J1111-1 |
| Date | 11 November 1998 |
| Court | House of Lords |
[1998] UKHL J1111-1
HOUSE OF LORDS
Lord Slynn of Hadley
Lord Nolan
Lord Hoffmann
Lord Cooke of Thorndon
Lord Hope of Craighead
My Lords,
The Factual Background
International Trader's Ferry Ltd. ("I.T.F.") was incorporated on 17 November 1994 by a group consisting mainly of farmers and hauliers for the purpose of carrying across the Channel livestock, mainly the property of members of the company. The group took this step since the major cross-Channel ferry operators gave up this business because of the difficulties caused by those protesting against the transport of live animals to the Continent.
I.T.F. chose Shoreham as being the most convenient port because of the areas from which the animals came and to which they were to go. They contracted for the provision by the Shoreham Port Authority of a berth for a roll-on roll-off ferry and on 6 December 1994 concluded a time charter for a vessel, the "Northern Cruiser."
The company realised from the beginning that it was likely to be met by protests and demonstrators from those opposing the trade. Sensibly it kept the police informed of its plans and a number of meetings were held from 11 November 1994 between the company and the police. The police made it clear that their task was to maintain public order and to deal with criminal offences or the threat of them. It is plain from the minutes of the meetings, from correspondence and from the affidavits filed in the course of these proceedings that the police recognised the right of I.T.F. to trade lawfully, the right of the demonstrators to protest peacefully and the potential for conflict between the two interests which opened up the risk of danger to all those involved. "The public safety identified here is for the demonstrators and the lorry drivers and their cargo and, as importantly, the police officers on duty" (letter from Assistant Chief Constable Lake to I.T.F. dated 26 January 1995).
To this end the police set up three operations:
(i) to police actual shipments ("operation Ferndown"),
(ii) to police the port round the clock ("Taunton"), and (later)
(iii) to investigate offences away from the port which it was thought were a threat to the trade of I.T.F. ("Kirby").
The first sailing was deferred until 2 January 1995 when the problems were immediate and serious. The police had 74 officers at the port to protect the lorries: they were met by between 500 and 600 demonstrators, some of whom were violent to drivers and to the police, damaging the vehicles; others blocked the road by sitting down. Accordingly on 2 and 3 January 1995 the lorries could not get through. Between 4 and 14 January the average number of demonstrators was the same as on 2 January and the Chief Constable arranged for some 1,125 officers to be present for each sailing. This very substantial number was only made possible by the Chief Constable obtaining assistance from other police forces which had to be paid for out of Sussex Police budgeted funds. Thus just for these few days the sum of £1,252,000 had to be paid in addition to the cost of his own men on duty at the sailings. During the same period 67 demonstrators were arrested.
It is hardly surprising that on 6 January 1995 the notes of a meeting between the police and I.T.F. should record that Assistant Chief Constable Childs stated "that the current level of policing for operation Ferndown was not easily sustainable." I.T.F. insisted, however, that they intended to export every day for the 50 days remaining of the charter, though the police had already made it clear that full policing could not be available on Saturdays and Sundays because of other commitments.
Fortunately the number of protestors fell from 14 January to between 100 and 150 on Mondays to Thursdays and round about 350 on Fridays. The number of police engaged on operation Taunton in policing the port remained at 24 during the week and 30 on Sundays.
In addition to dealing with the demonstrators there were other specific problems for the police caused by cancellations after the police had been arranged for duty, or when sailings were cancelled because of bad weather, or when I.T.F. sought to give short notice of a sailing and when it was difficult or not possible for police to be made available, or when I.T.F. wished to sail on a Saturday morning. The police at a meeting on 27 January 1995 were asked to look after more frequent sailings, including weekend sailings, and that request was repeated by letter of 17 March 1995, but the police made it clear that weekend sailings could not be accommodated.
I.T.F.'s sailings were also affected by a stop notice issued by the local planning authority between 1 and 8 February which the High Court refused to set aside. Thereafter a different berth was found but between 8 and 13 March activities were suspended by the Harbour Master until the High Court intervened so that operations were resumed.
On 10 April 1995 the Chief Constable, having consulted his colleagues in the command team, wrote to I.T.F.:
"Since the start of the trade and export of live animals from Shoreham Harbour in January you will be aware that I have had to monitor constantly policing strategy for the operation in the Port Authority area.
"The policing operation demands considerable resources to be deployed. 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. …
"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 frequency of policing in the port area. This will allow me to provide a level of service to the community in the two Counties which is both reasonable and which the community have a right to expect.
"With effect from Monday, 24 April 1995 I will introduce one of the following two policies in respect of policing the port area which essentially involve my being prepared to police an operation on either two consecutive days per week or alternatively four consecutive days per fortnight. Either option would involve policing on days between Monday and Thursday. We are not prepared to provide policing on either a Friday, Saturday or Sunday or, indeed, any public holiday. Please consider which of these two options is the more suitable for you and contact Assistant Chief Constable Tony LAKE so that the necessary policing arrangements may be made. He will be available to discuss these arrangements in more detail should you so wish.
"In addition, this would involve the movement of lorries carrying livestock to the port being restricted to one movement per day and any movement of lorries will consist of not less than seven or more than ten vehicles. This change in our position represents a continuing willingness on our part to police the events in and around the Port Authority area but on a scale which is reasonable and which at the same time allows me the prospect of being able to achieve the objectives we have published for policing the Sussex Police area."
In reply on 13 January 1995 I.T.F. said that they had agreed to operate on a five day week, with no operations at the weekend or in the evenings. Having entered into a new time charter, they would be likely to be put out of business if they were limited to two days a week. They asked in the light of the judgment of the Divisional Court in Reg. v. Coventry City Council, Ex parte Phoenix Aviation [1995] 3 All E.R. 37 that the decision be not implemented before 9 May so that discussions could take place. The police and I.T.F. did meet on 20 April. It was agreed that I.T.F. could sail on the four days between 24 and 27 April but I.T.F. insisted that it would also sail on 28 April though it was negotiating with the Dover Port Authority to use the "Northern Cruiser" from Dover. By letter dated 24 April Assistant Chief Constable Lake confirmed that the decision of 10 April stood and added that the judgment in the Coventry case did not cause the police to change their decision:
"You should be aware that to date we have arrested approaching 300 people for a variety of offences in the port area and it has been necessary on occasion to warn and advise the lorry drivers carrying the livestock about their behaviour which could be construed as inciting the crowd of demonstrators to violence…
"Sussex Police recognise that the export of livestock is a legal trade and we are committed to continuing to police the Shoreham port area. The policing operation must be balanced against our need to provide a policing presence elsewhere in Sussex and the new policing arrangements balance these demands."
Although they had used up four days for the fortnight from 24 April, I.T.F. decided to sail again on 28 April and they confirmed this to the police on 27 April. Since 28 April was a Friday it was in two respects contrary to what I.T.F. had been told the police could do. By 6.30 a.m. on that day, there were 150-200 protestors at the port and so I.T.F. decided to ship only one lorry rather than the seven to ten provided for in the arrangements. By 8.35 a.m. there were between 250 and 350...
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