R v Chief Constable of Sussex, ex parte International Traders' Ferry Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLORD JUSTICE BALCOMBE
Judgment Date26 Jul 1995
Judgment citation (vLex)[1995] EWHC J0726-1
Docket NumberNo CO-131695

[1995] EWHC J0726-1

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Crown Office List

Before: Lord Justice Balcombe Mr Justice Popplewell

No CO-131695

Regina
and
Chief Constable of Sussex
and
Ex parte International Traders Ferry

MR PETER ROTH and MR RHODRI THOMPSON (Instructed by Wynne Baxter Godfree of Brighton, Sussex) appeared on behalf of the Applicant.

LORD LESTER QC and MISS G KENT (Instructed by Legal Department, Sussex Police Authority, Lewes Sussex) appeared on behalf of the Respondent.

1

( )

LORD JUSTICE BALCOMBE
2

This is the judgment of the court.

3

For many years exporters have shipped livestock from Great Britain to the Continent of Europe by cross-Channel ferries and this trade is lawful. However, as a result of protests by animal rights groups the major ferry operators stopped carrying livestock cargo during the autumn of 1994. This created an urgent need for alternative means of carriage for exporters to the Continent and a corresponding commercial opportunity. 30 persons —mainly farmers, livestock exporters and hauliers —formed a company, the applicant International Trader's Ferry Ltd. ("ITF"), for the purpose of the carriage of livestock across the English Channel. ITF was incorporated on 17 November 1994 and arranged to operate a regular service out of the port of Shoreham in Sussex, of which the statutory port authority is the Shoreham Port Authority ("SPA"). It was apparent from the start that the traffic was likely to attract protests, and a representative of the Sussex Police attended a meeting between representatives of ITF and SPA in early November 1994 to assess the level of policing required to cover the anticipated protests. ITF found a suitable vessel (the "Northern Cruiser" of 894 tonnes), entered into a time charter on 6 December 1994, and attempted to start operations on 2 January 1995.

4

However on 2 and 3 January 1995 some 500/600 protestors were present outside Shoreham Harbour, blocked the roads, damaged the lorries, and were violent to drivers and the police. The Sussex police had mounted an operation ("Ferndown") to police the transport of livestock through the port, but the 74 police officers then provided were unable to cope with this number of protestors. So the lorries were turned back, on police instructions, on both these dates. On 4 January 1994 1,125 police officers were deployed at each sailing on operation Ferndown, and with this level of policing the lorries were able to get through to the port. This level was maintained until the night of 13/14 January and, save on 12 January when the scheduled sailing had to be cancelled because of the weather, ITF was able to ship its livestock cargo throughout this period. To maintain a police presence at this level Sussex Police was assisted by seven other police forces through Mutual Aid under section 14 of the Police Act 1964, and the cost of operation Ferndown for this period was £1.25m.

5

Since 14 January the number of protestors at the port was reduced to 100–150, with about 350 on Fridays. The Sussex Police said that they could not provide adequate police to cover night-time or week-end sailings, but from then until 10 April about 315 police were deployed at each sailing on operation Ferndown and at this level of policing the lorries carrying the livestock were able to get through to the port. In addition to operation Ferndown, which was mounted whenever a shipment was arranged and notified, Shoreham port had to be policed on a 24-hour daily basis Monday to Saturday and this operation ("Taunton") required 24 officers on each weekday and 30 on Saturday.

6

The affidavit evidence before us goes into considerable detail as to what happened between 14 January and 1 April and both counsel made submissions to us asserting that the other side had been behaving unreasonably. It is easy to see how the situation provided scope for these differences. ITF wanted to be able to carry on its lawful trade free from interference by demonstrators who often resorted to violence; the police had this additional commitment thrust upon them in addition to their other responsibilities: an operation the size of Ferndown could not be mounted without adequate notice, yet sailings had to be changed or cancelled if, for example, weather conditions were adverse. Further, the police were with reason apprehensive that there could be a breach of the peace, with possible risks to the safety of the lorry drivers, the police and the demonstrators, if lorries were to attempt to reach the port when adequate numbers of police were unavailable, and it was throughout made clear to ITF that lorries would be turned back on those occasions when operation Ferndown could not be mounted, and that the police would not hesitate to use their powers, including those of arrest, to ensure that their orders were obeyed.

7

ITF's problems during this period were not only with the police. The local planning authority, Adur District Council, served an enforcement notice and a stop notice with regard to the particular berth used by ITF. On the basis of the stop notice SPA suspended ITF's rights to use the port, and it required legal proceedings by ITF against SPA to ensure that the Northern Cruiser could continue to operate from a different berth that was outside the area covered by the stop notice. So, subject to these hiccups, ITF continued sailing each week-day until the decisions of the Chief Constable of Sussex which are challenged in these proceedings.

8

ON 10 April 1994 the Chief Constable wrote to ITF a letter which contained the first of those decisions. The letter reads as follows:-

"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 concern 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.

You will recall from previous correspondence from Assistant Chief Constables CHILDS and LAKE that large numbers of police officers have had to be deployed to policing the events at Shoreham Harbour every single day since the beginning of the year and over the 24 hour period. We have made every reasonable effort to balance the needs of the people of East and West Sussex with the policing demands of the Port Authority area and we have already previously stated that we are not in a position to provide a policing commitment on the scale required at week-ends. I have reviewed the overall position of policing this operation and our position has now changed.

As I have already stated publicly, reducing crime, and the fear of crime, and responding to calls made by the public to the police are the key priorities of the Sussex Police. These are fundamental to preserving a peaceful society. 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."

9

On 12 April 1995 this court (Simon Brown, L.J. and Popplewell, J.) handed down its judgment in R. v. Coventry City Council, ex parte Phoenix Aviation and others, now reported at [1995] 3 All E.R. 37. Those three cases concerned the question whether public authorities operating air and sea ports were entitled to ban the flights or shipment of livestock by animal exporters and, if so, whether they could properly refuse to handle that trade so as to avoid the disruptive consequences of unlawful protest by animal rights protestors. In one of the cases (Plymouth) the local...

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