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  EWCA Civ 1490 and Birmingham City Council v Asfar  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.
In Sheffield City Council v Fairhall  EWHC 2121 (QB), the Court has been asked to consider the extent to which the decision in DPP v Jones  UKHL 5;  2 AC 240 can be relied upon as a right to conduct peaceful but disruptive protest on the highway.
There has been a long battle in Sheffield to prevent the local authority’s tree-felling programme. In an effort to discharge its obligation under s.41 of the Highways Act 1980 more efficiently, Sheffield City Council contracted out its maintenance contract to Amey Hallam Highways Ltd. In operating the contract, Amey identified a large number of trees, many of them healthy, that it wished to cut down. Campaigners believed that the contract into which Sheffield City Council entered was unlawful as it put, the Defendant submitted, profiteering (by Amey) and cost-cutting (by the Council) ahead of its environmental obligations.
The recent case of Ewing v Cardiff and Newport Crown Court  EWHC 183 (Admin) relating to restrictions on members of the public taking notes in criminal hearings in the Crown Court will have application in relation to similar restrictions in police misconduct hearings. The starting position is that note taking will be permitted – and a chair should not require observers to ask for permission before making any.
Public hearings in police misconduct hearings are new. As a result, panel chairs are just working their way around what is required and when to exclude the public. The bar for excluding members of the public and not naming officers is very high – as made clear by Solicitors Regulation Authority v Spector  EWHC 37 (Admin). It concerns solicitors but the principles are transferable (with some key caveats, which I have not gone into here). The result is that there will be a strong presumption that police misconduct hearings be heard in public, including permitting all members of the public and the naming of all persons involved. A panel chair does have a power to restrict the public elements of a hearing but only in exceptional circumstances.