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.
R (Birks) v Commissioner of Police of the Metropolis  EWHC 807 (Admin) is the case of an officer who wanted to resign in order to take up a position as a minister in the Church of England. He was suspended and not permitted to resign, so that the IPCC (as it then was) could investigate his conduct in connection with the arrest of Sean Rigg who died in custody at Brixton Police Station in 2008.
Before the “former officer” provisions were introduced by the Police (Conduct, Complaints and Misconduct and Appeal Tribunal) (Amendment) Regulations 2017, the IPCC could investigate the conduct of an officer, serving or retired but a case to answer decision and disciplinary proceedings could only be taken in relation to a serving officer. In 2003, the Home Secretary issued guidance (Circular 55/2003) to the effect that the power to suspend could be used to prevent a resignation and thereby ensure the completion of disciplinary proceedings. If an officer was suspended, they had to seek the permission of their Chief Officer to resign or retire.
In PC Birks’ case, his resignation had been accepted by the Metropolitan Police in 2014, notwithstanding the new IPCC investigation. But this acceptance was rescinded, under pressure from the IPCC and Mr Rigg’s sister – and PC Birks was suspended precisely to prevent him from resigning. PC Birks first challenged this in a judicial review claim. He alleged that that being required to remain a police officer breached Article 8 (privacy) and Article 9 (religion) of his Convention Rights. Further, that it amounted to an unlawful departure from a substantive legitimate expectation because the Metropolitan Police had already accepted his resignation.