The Right to Protest and the Right to Export: Police Discretion and the Free Movement of Goods
| DOI | http://doi.org/10.1111/1468-2230.00088 |
| Published date | 01 May 1997 |
| Date | 01 May 1997 |
CASES
The Right to Protest and the Right to Export: Police
Discretion and the Free Movement of Goods
Catherine Barnard and Ivan Hare*
A fundamental aspect of the British constitutional order has been the rejection of
national policing in favour of a number of forces independent of central
government, and operating in the context of local organisation and accountability.
1
In recent years, this structure has come under pressure from the centralising
tendency of circumstance
2
and government initiative to the detriment of local
accountability and, arguably, civil liberties. Yet there has been no discernible
growth in judicial intervention to balance the centripetal movement of political
influence.
The absence of clear principles separating and defining the respective powers of
the Home Secretary, Chief Constable, police authorities and the courts was brought
into sharp relief by recent litigation in RvChief Constable of Sussex, ex p
International Trader’s Ferry Ltd
3
(ITF), a case concerning the export of live
animals from the UK to the Continent. ITF also highlights the potential conflict
created by the need to secure one of the fundamental principles of the European
Union’s essentially economic legal order, the free movement of goods, with the
British approach to civil liberties and police organisation.
The facts
During autumn 1994, animal rights protesters persuaded the major ferry operators
not to carry livestock abroad. This forced exporters to find an alternative means of
transport. On 17 November 1994, International Trader’s Ferry Ltd (ITF) was
The Modern Law Review Limited 1997 (MLR 60:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.394
*Trinity College, Cambridge.
The authors would like to thank Christopher Forsyth, Clive Lewis, Lawrence Lustgarten and Tony Smith
for their comments on an earlier draft.
1The Royal Commission onthe Police, Report (Cmnd 1728, 1962) rejected the idea of a national police
force (in the face of the influential dissent of Dr A.L. Goodhart), as did the government’s 1993 White
Paper (Police Reform: the Government’s proposals for the police service in England and Wales —
Cm 2281, 1993). The structure of the police service fell outside the terms of reference of the Royal
Commission on Criminal Justice (Cm 2263, 1993) para 6. On the development of policing in England,
see Radzinowicz, A History of English Criminal Law (London: Stevens, 1968) vol 4, chs 5 and 7; and
Cornish and Clark, Law and Society in England, 1750–1950 (London: Sweet & Maxwell, 1989) 551–
557, 591–595.
2 For example, the 1984–85 miners’ strike greatly enhanced the role of the National Reporting Centre
which co-ordinates co-operation between the police forces. See Reiner, The Politics of the Police
(Hemel Hempstead: Harvester Wheatsheaf, 1992) 236–249; Uglow, Policing Liberal Society (Oxford:
Opus, 1988) 127–131. The principal government initiatives are detailed in ns 37–43 below.
3 [1997] 2 All ER 65.
formed by 30 farmers, livestock exporters and hauliers to export animals from the
port of Shoreham in Sussex. They chartered a boat, the Northern Cruiser, with a
view to starting a daily ferry service on 2 January 1995. Aware of the likelihood of
protests, a meeting was held between ITF and the port authorities, attended by a
representative of the Sussex police, to assess the level of policing required.
When the first exports began, the initial police allocation of 74 officers proved
inadequate to deal with the 500–600 protesters who ‘blocked the roads, damaged
the lorries and were violent to drivers and the police.’
4
Lorries were turned back
from the port until 4 January 1995 when 1,125 police officers were deployed at
each sailing. On 12 January 1995 the Chief Constable and the Treasurer of the
police authority met representatives of the Home Office to warn them that the
cost of the policing operation was such that the police authority might soon wish
to seek assistance by way of special payments. Although there was some dispute
about the evidence, it appears that the Home Office indicated that the special
payments scheme was unlikely to be triggered until the policing costs reached
£6–7m. This view was confirmed by a Home Office statement of 16 January
1995.
5
By mid-January the number of protesters had fallen to 100–150 a night, with
about 350 on Fridays, and the police presence was reduced to around 315. This
level of policing prevailed until 10 April 1995 when the Chief Constable of Sussex
wrote to ITF explaining that:
it has become impossible to provide the resources necessary to be efficient and effective in
[reducing crime, and the fear of crime, and responding to calls made by the public to the
police] throughout the two counties [East and West Sussex] 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.
As a result, the Chief Constable proposed that the port would be policed either two
consecutive days a week or four consecutive days a fortnight from 24 April 1995.
He also said that if ITF tried to bring a convoy against police advice at any other
time, the Sussex police would prevent the convoy from reaching the port.
Two days after the Chief Constable’s letter, the Divisional Court (Simon Brown
LJ and Popplewell LJ) handed down its judgment in RvCoventry City Council,
ex p Phoenix Aviation.
6
In that case the court had to consider whether public
authorities operating the air and sea ports of Coventry, Dover and Plymouth were
entitled to ban the flights or shipment of livestock by animal exporters and, if so,
whether the unlawful protests of animal rights campaigners constituted a valid
reason for doing so.
7
Simon Brown LJ emphasised the implications for the rule of
4 Balcombe LJ, in the Divisional Court’s judgment in ITF [1996] QB 197, 204C–D.
5 On 16 January 1995 the Home Secretary stated: ‘The force must be able to show that the expenditure
was unforeseen, exceptional and threatens the efficiency of the force. There is no reason to believe
that this is the case’ (quoted in Divisional Court: n 4 above, 210 D). This was affirmed by the Home
Secretary in a letter to the Clerk of the Police Authority of 31 July 1995 which the Court of Appeal
was, exceptionally, prepared to admit in evidence even though it related to matters before the initial
trial (76–77). The Court of Appeal affirmed that the principles in Momin Ali vSecretary of State
[1984] 1 WLR 663 and Ladd vMarshall [1954] 1 WLR 1489 applied to judicial review cases.
6RvCoventry City Council, ex p Phoenix Aviation,RvDover Harbour Board, ex p Gilder & Sons and
RvAssociated British Ports, ex p Plymouth [1995] 3 All ER 37.
7 The decision affirms that the preservation of public peace is the fundamental justification for the
existence of a police force. See A.T.H. Smith, Offences Against Public Order (London: Sweet &
Maxwell, 1987) 16–20.
May 1997] The ITF Case
The Modern Law Review Limited 1997 395
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