Tweed's Application (David) (No. 5)
| Jurisdiction | Northern Ireland |
| Judge | Girvan LJ |
| Judgment Date | 26 February 2009 |
| Neutral Citation | [2009] NICA 13 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 26 February 2009 |
| Year | 2009 |
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Neutral Citation No.: [2009] NICA 13 Ref:
GIR7144
Judgment: approved by the Court for handing down Delivered:
26/02/09
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN
IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
Tweed’s Application (No. 4) [2009] NICA 13
AN APPLICATION FOR JUDICIAL REVIEW BY DAVID TWEED ON HIS
OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF DUNLOY
LOL 496 (No. 4)
AND IN THE MATTER OF DECISIONS OF THE PARADES
COMMISSION FOR NORTHERN IRELAND
________
GIRVAN LJ
Introduction
[1] The opening sentence of the report of the Independent Review of
Parades and Marches (“the North Report”) prepared by a team comprising Dr
Peter North, Father Oliver Crilly and the Very Reverend John Dunlop
succinctly sets the issue of contentious parades in Northern Ireland in context:
“We all have a problem.” The issue of marching in Northern Ireland does
indeed give rise to a problem or rather a myriad of problems. They are
inextricably linked to the divisions that exist within Northern Ireland society.
The North Report provides a detailed and painstaking analysis of the
complex historical legal and societal questions raised by the issue. Whilst the
issue raises problems province wide, it also gives rise to problems which give
rise to localised difficulties and tensions. This is evident in this case involving
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a small village with a largely Catholic population within a wider area with a
predominantly Protestant population. Localised tensions and disorder have a
tendency in Northern Ireland to spread out and manifest themselves
elsewhere in the province. With a clear insight into the problems, the North
Report at paragraph 1.52 pointed out that since the difficulties lie in the areas
of flawed communal relationships neither the law nor the Report’s proposals
could themselves resolve the underlying difficulties though the law is an
important mechanism that provides a basic framework within which the
competing and conflicting interests can be measured and reconciled. In this
case the applicant effectively argues that the mechanisms of the law have not
been operated in such a way as to properly measure and reconcile the
competing and conflicting interests of the members of the Dunloy Loyal
Order Lodge 496 (“the Lodge”) and the local community in Dunloy.
The Commission’s determination
[2] The proposals put forward by the Lodge in their notice of intention to
organise a public procession served under section 6 of the Public Processions
(Northern Ireland) Act 1998 (“the 1998 Act”) named the applicant as the
person organising the parade. The details of the procession specified that the
purpose of the parade was to “manifest our faith in God as revealed in the
Holy Scriptures on the occasion of the day of celebration of the resurrection of
the Lord Jesus Christ through peaceful means during a peaceful procession”.
The anticipated number of participants (including band members) was 200-
300 with one band. Regalia was to be worn but no banners or flags were to be
carried. The procession was to go from the Dunloy Orange Hall in Station
Road, Dunloy to Dunloy Presbyterian Church in Main Street. The procession
was to start at 14.15 and the return procession was to start at 15.30. The band
was to comprise the Dunloy Accordion band composed of 30 members. The
parade distance was some 315 yards.
[3] The determination made by the Parades Commission (“the
Commission”) placed restrictions on the organisers and participants limiting
the parade to the portion of Station Road running adjacent to the grounds of
the Orange Hall along the perimeter fence marking the edge of the Orange
Hall. Only the members of the Lodge, County and District Officers and the
band notified on the Form 11-1 were permitted to participate. The parade
was to last from 2.15 pm to 2.30 pm with no undue stoppages and keeping
close to the rear side of the road. Adequate stewarding was required.
The Procession
[4] On Easter Sunday 11 April 2004 at 2.15 pm the members of the Lodge
and band assembled in front of the Orange Hall. It started to walk in good
order towards the church. At the limit of the perimeter fence it stopped in
front of a senior police officer while the band continued to play hymns. A
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statement of protest was handed to the officer having been read by the
applicant. The National Anthem was played and the possession dispersed at
2.25. The members of the Lodge returned to the grounds of the Orange Hall
where a psalm was read and a prayer was said. The police District
Commander complemented the applicant on his co-operation during the
procession. Before, during and after the event Station Road and Main Street
remained practically deserted with no residents or objectors to be seen on the
streets. The police were present according to the applicant in considerable
numbers including 20 police officers in yellow jackets as well as 6 land rovers
and other unmarked police cars one of which contained police dogs. There is
nothing to contradict the applicant’s contention that the procession was
orderly dignified and peaceful and was well marshalled.
The legal challenge
[5] The applicant’s challenge to the Commission’s determination and its
decision not to change it after review raises a number of legal questions.
These relate to the compatibility of section 8(6)(c) of the 1998 Act with articles,
9, 10 and 11 of the Convention, the validity of paragraph 4.4 of the Guidelines
published by the Commission (“the Guidelines”) and the validity of rule 3(3)
of the Commission’s Rules of Procedure. The challenge also raises wider
questions as to the proportionality of the actual decision on the facts of the
case, the fairness of the Commission’s procedures in dealing with the
applicant’s notice and as to the question whether the Commission was acting
for a legally improper or impermissible purpose in issuing the determination
which it did.
The incompatibility question
[6] Under section 8(1) of the 1998 Act the Commission may issue a
determination in respect of a proposed public possession imposing on the
persons organising or taking part in it such conditions as the Commission
considers necessary. Section 5 provides that the Commission shall issue a set
of guidelines as to the exercise by the Commission of its functions under
section 8. Section 8(6) provides that those guidelines shall in particular
provide for the Commission to have regard to –
(a) any public disorder or damage to property which may result from the
procession;
(b) any disruption to the life of the community which the procession may
cause;
(c) any impact which the procession may have on relationships within the
community;
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