Two recent cases have required the High Court and Court of Appeal to consider in detail the use by local authorities of different powers contained in the Anti-Social Behaviour, Crime and Policing Act 2014 (“ASBCPA”) to limit or prevent protests that have contained a strong religious or moral element. To what extent are the courts prepared to sanction the use of these powers in relation to types of activities that perhaps would not immediately spring to mind when the words ‘anti-social behaviour’ are heard? The answer, in two words, is ‘very prepared’, judging by the decisions in the cases of Dulgerhiu v London Borough of Ealing [2019] EWCA Civ 1490 and Birmingham City Council v Asfar [2019] EWHC 3217 (QB).
The first case concerned a challenge to the imposition by the London Borough of Ealing of a Public Spaces Protection Order. In the second the High Court granted a final anti-social behaviour injunction, sought by Birmingham City Council under section 1 of the 2014 Act. While the cases raise real issues as to the balancing of the Human Rights Act 1998 articles 9, 10 and 11 rights of the ‘protestor’ against those affected by the protests, as will be seen the Courts have had little hesitation in approving or taking action where there was evidence of real harm being caused.
Dulgheriu v London Borough of Ealing
The Marie Stopes UK West London Centre offers termination counselling/services in Ealing. The Appellants in Dulgheriu were all affiliated to a Christian group, the “Good Counsel Network” (GCN). They were strongly opposed to termination on moral and religious grounds. The GCN organised prayer vigils and attendances outside the centre. They would attempt to engage with women attending the centre, offer counselling/assistance and seek to persuade them against having a termination.
In 2015, the pro-choice group “Sister Supporter”, started to organise a counter-protest at the centre and, in 2017, organised a petition to ban GCN from protesting outside it. The London Borough of Ealing produced a draft Public Spaces Protection Order (PSPO), with a “safe zone”, where protest was not permitted. An online consultation demonstrated strong support for an exclusions zone and, in April 2018, the borough exercised its powers under s.59 of ASBCPA to make a PSPO.
The PSPO imposed a 100m exclusion zone, within which was prohibited a very wide range of protest-type activities. The first term prevented, “protesting, namely engaging in any act of approval/disapproval or attempted act of approval/disapproval, with respect to issues related to abortion services, by any means. This includes but is not limited to graphic, verbal or written means, prayer or counselling…”.
The GCN exercised its right to challenge the PSPO under s.66 of the ASBCPA 2014 on the grounds that, the terms of the PSPO were unreasonable and constituted an unjustified interference with Articles 9, 10, 11 and 14.
The High Court held that the Article 8 rights of those visiting the centre were engaged and that the protection of their right to privacy was a legitimate aim. It found the restrictions to be proportionate and rejected the argument that less restrictive alternatives to a PSPO would have been effective.
On appeal, the Court of Appeal had little hesitation in finding that the women’s right to privacy was engaged. It held that “The decision of a woman whether or not to have an abortion is an intensely personal and sensitive matter. There is no doubt that it falls within the notion of private life within the meaning of Article 8.” The Court went on to identify, “the reasonable desire and legitimate expectation that their visits to the Centre would not receive any more publicity than was inevitably involved in accessing and leaving the Centre across a public space and highway”.
The Court of Appeal went on to consider the significance of the Claimants’ Article 9 rights (right to religion). It reiterated that, “the rights under Articles 8, 9, 10 and 11 are all of equal importance in the sense that none has precedence over the other and, where there is a tension between their values, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case”.
The court rejected the argument that GCN’s actions were no more than a protest causing irritation, annoyance, offence, shock or disturbance, instead holding that their actions had a detrimental effect on the quality of life of those visiting the centre which was, or was likely to be, of a persistent or continuing nature and that there was evidence of lasting psychological and emotional harm to those service users. It therefore upheld the decision of the High Court.
Birmingham City Council v Asfar
This case concerned the long-running and bitter dispute between some parents (and others) and Anderton Park Primary School, Birmingham about its teaching in relation to LBGT relationships. The basis for the parents’ objection being on religious grounds, the claim raised interesting issues about the rights of a parent to influence what ideas their child might be exposed to while at school, albeit these were not felt by the judge to be directly relevant to whether or not the injunction should be granted.
Legally, the boot was on the other foot to Dulgheriu: rather than imposing a PSPO (which was then challenged in court), Birmingham City applied to the court, seeking a final injunction. This followed persistent, loud protests outside Anderton Park Primary School, against the perceived teaching that LGBT relationships were normal.
On the facts, the court found that the teaching did not go anything like as far as was being alleged by the protestors outside the school. No sexual material was included in the teaching or syllabus. The judge found, no doubt with some irony, that one Iman’s “wild and untrue statements were made in front of a large crowd including children. The children were thereby exposed to sexualised language going far beyond anything they were exposed to in the controversial teaching of the School.”
The judge accepted that there was ample evidence the protests had a very significant adverse impact on teachers, pupils, and local residents, that nearby residents, including one gay resident, felt harassed, 21 staff members had reported health difficulties associated with stress and that the noise of the protests had a disruptive and intrusive impact on the children attending the school.
The Judge identified that, although the legislation was specifically framed so as to cover injunctions to prevent a respondent from “engaging in anti-social behaviour”, this did not exclude anti-social behaviour in otherwise legitimate protest. He stated:
“A great deal of anti-social behaviour (including several of the illustrative examples given in the Explanatory Notes) consists of spoken words and public assemblies; such conduct may well represent an unwarranted interference with the rights of others, in particular those under Article 8. The freedom to speak offensively, though important, is not an unqualified right. It is not feasible to read in any narrower limitation, to exclude “protest”. That is a protean term, with no fixed meaning, and protest is not in and of itself legitimate.”
This is an interesting (and no doubt intentional) counterpoint to the observation by Sedley LJ in Redmond-Bate v DPP [1999] 7 WLUK 495 when – channelling Socrates – he observed that “Freedom only to speak inoffensively is not worth having.”
All allegations that the school’s actions amounted to unlawful discrimination in any form were rejected: It was the children who had a right to an education under Article 2 of Protocol 1 to the ECHR. Their parents could not rely on that article to exclude content from the curriculum that they personally found offensive.
On the third issue, the necessity to grant an injunction, Warby J made a number of findings as to the inaccuracy and offensiveness of the protests, and the highly intrusive way in which they were conducted (including the use of megaphones). The impact on staff, residents and children is strikingly summarised at paragraphs 90-95 of the judgment.
It is when the court came to tackle the task of balancing the competing interest and ECHR rights of the protestors and other groups that the judgment is of most interest, and of more general application. At paragraph 107 the Judge stated:
“A key part of the balancing process will be to assess the weight to be given to the particular kind of speech and activity under consideration, and to the specific rights that compete with them. The jurisprudence reveals a scale of values. It emphasises that speech on political or ethical issues, or which contributes to controversial debate on matters of public interest or concern, will normally call for a high degree of protection: see Annen v Germany [2015] ECHR 1043 [62]. At the other end of the scale is speech that has little inherent value because it is used for the purposes of blackmail or extortion…”
The conclusion of this analysis is at paragraphs 113-114:
“In general terms, I can accept [the Defendants’] submission that the 2014 Act creates a “high hurdle”. … But I reject the submission that the Court is powerless to grant, or should always refrain from granting, an order protecting fellow citizens from alarm or distress, or other consequences of harassment or anti-social behaviour, falling short of that which would justify prosecution.
In a democratic society protest must be allowed, but that does not carry with it a right repeatedly to cause distress to primary school children by aggressive shouting through megaphones or microphones using amplification, or to inflict months of distress on teachers and local residents, causing anxiety to the staff, and leading some residents to consider selling up their homes.”
In considering the rights of the protestors, the judge found that “Some manifestations of the protests appear to me to have been positively harmful to children whose parents or carers have allowed them to become involved” (paragraph 117). He found that the exclusion zone and associated restrictions would not prevent protest but was targeted on the most harmful aspects of it.
In light of these observations, it is not surprising that when balancing the competing parties’ rights, the judge found that the children’s fundamental right to an education – which was disrupted by the protests, the teachers’ rights to a private life – due to the protests spilling over into their private lives and the local residents’ home and family lives were found to outweigh the rights of the protestors to assemble immediately outside the school in order to protest.
The judge also heard evidence that disturbance due to the use of amplifiers (i.e. megaphones) had continued at the new location where protests had been conducted since an interim injunction had been granted. He noted that the protest had now received national publicity and that the use of megaphones was not necessary to bring attention to the cause. The judge decided that, “after nearly 8 months of noisy and highly visible protest, the appropriate course is to allow continued presence on the green space, but to prohibit the use of megaphones or amplification.”
Final injunctions were granted, imposing a physical exclusion zone around the school, and preventing associated anti-social behaviour. The precise terms of the prohibitions are to be the subject of agreement, failing which the judge will rule on the matter.
The way forward
Both of these cases involved long-running protests in circumstances where there was plain evidence that harm was being caused, either to the subjects of the protest or as ‘collateral damage’. The courts are likely to take different approaches to balancing rights where the protests in question are more limited in duration and where the link to harm caused to others is less clear. Nevertheless, it is interesting that the courts have now, on at least two occasions, endorsed the use of statutory powers that were clearly drafted to tackle ‘traditional’ anti-social behaviour and low-level criminality to limit or prevent genuine protest activity.
While these cases both involved challenges to action taken by local authorities, the principles would apply with equal weight to action taken by the police that has the potential to engage or infringe a protestor’s Article 9, 10 or 11 rights. The key message to take from the cases is that when it is anticipated that a restrictive or intrusive response may be required by a state body, it is important to:
- identify which rights are engaged, on all sides;
- remember (and record) that the starting point is that Articles 8, 9, 10 and 11 are of equal general importance;
- focus on the comparative importance of the rights being claimed by competing parties in the individual case;
- seek to identify the least intrusive / restrictive action which will, so far as is possible, allow all parties to exercise their Article 8, 9, 10 and/or 11 rights, albeit there will be occasions when, in the individual case, the importance of the rights to one party means that they will need to be prioritised.