Mr Justice Treacy: “It is evident that ACC Kerr was labouring under a material misapprehension as to the proper scope of police powers…”

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The Chief Constable, Matt Baggott, has reportedly said that the police will appeal the High Court decision allowing “an application for a judicial review of the PSNI’s policing of the flag protests in Belfast between 8 December 2012 and 14 February 2013.” From the reported ruling Mr Justice Treacy was less than impressed by Assistant Chief Constable Will Kerr’s interpretation of the legal position.  As the summary of the judgment notes [added emphasis]

The Court heard evidence from [Assistant] Chief Constable Will Kerr who detailed “Operation Dulcet”, the PSNI operational response to the flag-related protests.    In his affidavit, ACC Kerr averred that the police did not have powers under the 1998 Act to ban a procession or protest and where parties engage in un-notified processions the PSNI only has recourse to general public order policing powers.  He explained that the aim of Operation Dulcet was to manage disorder by permitting the protestors to proceed into Belfast and back while maintaining the normal life of the city for as long as safely possible.  Part of the strategy was engagement with all parties with a view to reaching a consensual approach however he added that the absence of clear leadership or hierarchy among the protesting groups was a difficulty.  ACC Kerr refuted that the PSNI adopted a “laissez-faire” attitude to policing the parades and reiterated that their role was to collect evidence of persons organising or taking part in un-notified parades and to refer them to prosecuting authorities, while also employing public order and common law powers to keep the police.

The summary goes on to add [added emphasis throughout]

Mr Justice Treacy said he had no difficulty in accepting that operational discretion is important to the police and that no court should unreasonably interfere with the operational discretion or make practical policing impossible.  He added, however, that operational discretion cannot be invoked by the police in order to give them immunity from liability for everything that they do:

I accept the applicant’s submission that in the period following 8 December 2012 until in or about the start of January 2013, ACC Kerr did not address himself to the question of whether to stop the weekly parade, nor did the police behave proactively, or at all, in relation to prosecuting those organising and participating in the parades.  I accept the further submission that at whatever stage in mid-January ACC Kerr addressed himself to the question of stopping the parade, instead of recognising that he had ample powers to deal with the parade either by stopping the parade and/or arresting those participating in the parade, he mistakenly considered that the 1998 Act hampered his ability to stop the parade and his ability to police the situation effectively.”

The judge referred to ACC Kerr’s affidavit which stated that the risks associated with stopping protestors from protesting in the city centre were too great.  He noted a comment to the effect that the decisive factor appeared to be the “need to try and facilitate some form of protest at Belfast City Hall to allow for some venting of anger and community tension on the issue”.  He said this decision was focussed on the events of 8 December and “thereafter there was a complete lack of information as to why the police repeatedly permitted violent loyalist “protestors” to participate in illegal marches both to and from Belfast City Centre on every Saturday between 8 December and 14 February and why they permitted those marches to pass … the Short Strand given that the march was illegal and associated with serious public disorder, and/or serious disruption to the life of the community and the likely adverse serious impact on relationships within the community.”

Mr Justice Treacy also commented that there was no explanation as to why, having facilitated some form of protest at the City Hall the protesters were permitted to march back via the Short Strand when the return leg was associated with serious public disorder.  He also commented that, even though the police had been meeting with march organisers as far back as 9 January 2013, the decision to take action against “high profile organisers” was not made until 25 February 2013 which was after the decision had been made to stop the marches.  He added that it had not been satisfactorily explained why, on 14 March 2013, over three months after the illegal parades commenced, only six people had been arrested for offences under the 1998 Act:

The [PSNI] events book indicates a failure on the part of the [PSNI] Gold Commander [ACC Kerr] to specifically and appropriately engage with the march from East Belfast to Belfast City Centre despite its illegality and the associated public disorder.  Of greater significance, however, is that after mid-January when police began to engage with criticisms of their handling of the weekly parade the evidence makes it clear that ACC Kerr considered that police were hampered in their ability to act effectively and stop the parade either by the 1998 Act or human rights legislation or both.  In relation to this latter issue it is evident that ACC Kerr was labouring under a material misapprehension as to the proper scope of police powers and the legal context in which they were operating.”

Mr Justice Treacy said he was satisfied that ACC Kerr misdirected himself in as much as he considered that either the 1998 Act and/or the human rights legislation hampered his ability to stop the parade, arrest those involved and efficiently and effectively police the illegal parades: This was plainly wrong.  This issue was not legally complex, it was straightforward and the ACC had ample powers to effectively police the matter.”  The judge added:

Whether a parade was unlawful by reason of breach of a Parades Commission determination or because of a decision to flout the notice requirement, should have not led to a different police response.  In each case the expectation is that the police will seek to uphold the rule of law.  If, as I was informed, a Parades Commission determination would have been enforced because a procession in defiance would be unlawful so also should a procession rendered unlawful by defiance of the notice requirements.  If operational reasons would not have prevented the enforcement of a Parades Commission determination then neither should it have prevented the PSNI from taking comparable measures in respect of illegal un-notified parades.  The impugned policing operation during the period complained of was characterised by an unjustified enforcement inertia.  I consider this is because the police misdirected themselves believing that because there was no determination there was a lacuna or complexity in the applicable legal provisions which hampered their ability to efficiently and effectively police these parades.  This was simply wrong and I consider that it was this misdirection which explains and led to the situation in which the police facilitated illegal and sometimes violent parades with the effect of undermining the 1998 Act, in breach of their duties under section 32 of the Police (NI) Act 2000 and in breach of the applicant’s Article 8 rights.

Mr Justice Treacy allowed the application against the Chief Constable.

Interestingly, the UTV report quotes Matt Baggott as being concerned with the implications of the ruling

He vowed to reflect on the judgement which was made on Monday, adding “if we can do better we will” – but said police cannot be asked to do the impossible.

Matt Baggott continued: “I am concerned that the judgement may constrain our operational flexibility in the future and create an expectation that police will always be able to stop protests or arrest people at the time, irrespective of the particular circumstances.

“To do so may require significant force and undermine our attempts to work with communities.” [added emphasis]

Hmmm…  The BBC report adds

Mr Baggott said his officers had operated under “very challenging and difficult times” and believed the PSNI’s approach during the protests had been “responsible”.

The chief constable said they were studying the judgement carefully, but it had raised a number of operational dilemmas.

This judgement does not appear to me to take full account of the sheer scale of the protests,” he said. [added emphasis]

Perhaps they should have focused on that argument?  Rather than relying on a misinterpretation of the law…

[And what is the Northern Ireland Policing Board for again? - Ed]  Good question…

Adds  The Chief Constable’s statement in full [added emphasis throughout]

We are studying this judgement carefully but whilst respecting the judge and his decision, it does raise a number of serious operational dilemmas. At the time I said our approach would be measured and responsible and that people would be brought to justice. They have with nearly 700 charged and yet not a member of the public seriously injured. I do not believe we would be in a place today where political dialogue about parading would be possible without such restraint.

They were very challenging and difficult times and I pay tribute again to the courage of colleagues in containing a very volatile situation.

I am concerned that this judgement may constrain their operational flexibility and create an expectation that police will always be able to stop protests or arrest people at the time, irrespective of the circumstances. To do so may require significant force and undermine our attempts to work with communities. That would be wrong.

As such we are appealing the judgement.

Throughout the months of the flag protests, our over-riding concern was always safety of all communities and the protection of life. This judgement does not appear to take account of the sheer scale of the protests, the intensity of disorder and the potential for escalation. Indeed on one night we had over 80 separate protests to police, without recourse to the army or at that time mutual aid.

These were the real time decisions that had to be made.

To clarify, I take full responsibility for all operational decisions and I stand over them. Assistant Chief Constable Will Kerr was one of a number of gold commanders because of the length of the dispute. I would rather be accused of being ‘soft’ at the time than see many people injured and the future jeopardised.

Justice has been done.

[So the end justifies the means? - Ed]  That’s the “community-style policing” that the NI Policing Board unanimously appointed him for…

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  • DC

    This judgement is a mess and the PSNI should win the appeal.

  • Comrade Stalin

    This is quite a significant court decision which has far-reaching implications as Baggott has noted. It seems likely to me that the PSNI will be successful in overturning the parts of this decision where the judge seems to be second-guessing the competence of the police to determine the appropriate response to an illegal parade.

    It does provide a useful piece of legal clarification that an unnotified parade should be treated in the same fashion as one which is in breach of determinations, but this seems like a technicality; the PSNI routinely allow parades which are in breach of determinations also, and very recently another judge threw out a prosecution on the basis that he accepted that those who were involved in the parade were not aware that it was illegal.

    We’ll be hearing about the fallout from this one for some time yet. Will Baggott now indicate to the Police Board and the DOJ that the PSNI is undermanned and underfunded in terms of policing demonstrations and protests to the expectations of the courts ?

  • aquifer

    The Parades Commission edifice was built up to avoid the situation where the threat of violence was repeatedly used to push parades through where they were not wanted and caused offence, polarisation, and conflict. The previous arrangements invited mass threats and violence as a means to make the police take ‘operational’ decisions to allow demonstrations to pass.

    The police seem to have ignored the newer legal framework.

    The were not thanked by loyalists but cruelly abused.

    Thankfully the protests have petered out to the point where there are more people in front of city hall calling for gay marriages. Fewer prosecutions means fewer victim cards to play in this most self-pitying place.

    We should stop having armed criminals surprised at how much they get away with.

    If this means escalating the police response then so be it.

    Could the PSNI borrow some of the Met’s dog handlers?

    Alsatians worked well against the DUP before.

  • DC

    thereafter there was a complete lack of information as to why the police repeatedly permitted violent loyalist “protestors” to participate in illegal marches both to and from Belfast City Centre on every Saturday between 8 December and 14 February and why they permitted those marches to pass

    Yeah that’s right Judge Treacy, flag protesters are only allowed to assert their right to protest once, after that get back into your parades commission box and be regulated into oblivion!?

    It sadly reeks of judicial bourgeois in that anyone with a union flag must be a loyalist and loyalists are never protesters but actually always paraders and must always present themselves to the parades commission for regulation, despite it not being clear when recurrent protests actually turn into parades nor is it clear if a gathering is a protest or a procession and if a gathering is a procession is it by default always illegal until it has applied to the parades commission for approval?

    The thing is a mess just wait until there is a need to police a parade commission determination near a dissident area and when the BMWs start to get burnt and the PSNI fail to move in as they have failed to do in the past.

    Quite notably no such nationalist resident ever took the PSNI to court on those occasions for inaction in relation to human rights violations only when flag protesters have the audacity to protest into the city past a nationalist area whose residents like moths to a light rush out onto the street encouraging running battles with the wider crowd.

  • DC

    The judge while focusing on east Belfast fails to understand that there were 100s of flash flag protests springing up all over the place at the start and to expect the police to charge on in and arrest all round them, as he expected them to do in east Belfast, strikes me as someone who has had a rather deluded day at the office.

  • http://gravatar.com/joeharron Mister_Joe

    Notwithstanding DC’s superior judicial wisdom, if the top brass in the PSNI don’t understand either their responsibilities or their powers, (and still don’t, given their decision to appeal the Judge’s findings) it’s time that they all were gone, not just Baggot. Doesn’t give confidence in the Policing Board either.

  • Dec

    So DC, to surmise: ‘Themmuns!’

  • Mick Fealty

    Yes, as Pete says, where was the police oversight body in all of this?

  • Granni Trixie

    This is indeed quite a significant judgement. I suggest that it may be a rerun of the Holy Cross case which the police ultimately won (case taken by a resident/parent with support of NIHRC and which involved years and years of legal costs).

  • Granni Trixie

    I ought to have added that although I’m not a lawyer, looks to me that this judgement certainly deserves a challenge even if ACC Kerr made a mistake regarding the law.

  • Neil

    This judgement is a mess and the PSNI should win the appeal.

    No offence but I’m going to go along with the notion that the high court judge has a finer understanding of legal matters than yer average internet random.

    Yeah that’s right Judge Treacy, flag protesters are only allowed to assert their right to protest once, after that get back into your parades commission box and be regulated into oblivion!?

    Well, the geniuses over in East Belfast may not have done themselves many favours by posting invitations to the parade all over the internet. The idea of rebranding as a protest was a belated attempt to outwit the PSNI – protesting being legal and all that – but then most of these guys couldn’t outwit a paper bag.

    It sadly reeks of judicial bourgeois in that anyone with a union flag must be a loyalist and loyalists are never protesters but actually always paraders and must always present themselves to the parades commission for regulation, despite it not being clear when recurrent protests actually turn into parades nor is it clear if a gathering is a protest or a procession and if a gathering is a procession is it by default always illegal until it has applied to the parades commission for approval?

    The ‘protestors’ themselves circulated flyers inviting people to the parade. One can sometimes discern the difference between a parade and a protest using one’s eyes. They were parades.

    The thing is a mess just wait until there is a need to police a parade commission determination near a dissident area and when the BMWs start to get burnt and the PSNI fail to move in as they have failed to do in the past.

    A heady mix of mope and horse shit there DC.

    Quite notably no such nationalist resident ever took the PSNI to court on those occasions for inaction in relation to human rights violations only when flag protesters have the audacity to protest into the city past a nationalist area whose residents like moths to a light rush out onto the street encouraging running battles with the wider crowd.

    Ha! Very good. I suppose the residents were hemmed into their homes during these imagined dissident protests, or the ‘dissidents’ were attacking people’s homes – like the human detritus we all saw attacking people’s homes on You Tube? You’re attempting to excuse the inexcusable, attacking pensioner’s homes with rocks because they are taigs is unfortunately not something you can explain off on the old ‘they made us do it’ line.

    The judge while focusing on east Belfast fails to understand that there were 100s of flash flag protests springing up all over the place at the start and to expect the police to charge on in and arrest all round them, as he expected them to do in east Belfast, strikes me as someone who has had a rather deluded day at the office.

    Yes, I suspect the fact that the PSNI refused or failed to remove protests from the road involving in some cases as few as 3 smicks may have been on the judge’s radar. You see they could have dealt with the smicks quite easily but chose instead to have ordinary working people held up in traffic jams for hours instead – because the PSNI never take any kind of risk with their own personal safety. Certainly they are at some small risk due to the uniform on their back, but as an entirely typical example see the young family on the Falls Road after the mortar attack from the cemetery. The cops high tailed it out of there and didn’t come back for some time. The most important thing to the PSNI is their own safety, nothing more, nothing less. Which is why they allowed small groups of tracksuit bedecked unemployed teenagers to grind Belfast to a stand still instead of trailing them off the road.

  • Comrade Stalin

    Weird contribution DC. The parades were illegal. The judge is criticizing the police for allowing illegality to continue.

    Neil,

    I think the police simply operated a “stand back and let them tire themselves out” strategy which is pretty much how they deal with any riot or disturbance that they encounter, politically-motivated or otherwise.

  • Gopher

    The law is a closed shop time and again they make ludicrous determinations knowing their will be an expensive appeal. The rights and wrongs of this should be determined in the assembly not the courts. Another example of how the assembly has failed.

    This is just a money generating scheme the law has been an expensive ass for too long to remember, urgent need of reform (made cheaper)

  • Mick Fealty

    Under direction of PBNI? Or not?

  • DC

    My point is that the ruling seems to set a default position that the police can view all protest gatherings as processions and parades and move in and ban, stop and arrest those involved due to the lack of a parades commission determination.

    That would seem to make the right to assemble and protest a regulated one in NI, people who are protesting or would like to protest against the state or the powers that be are not going to apply for permission to the very state they are protesting against in order to do so.

    I dont agree with you that the protests were parades just because they happened frequently, repeated assertion of the right to free assembly should not due to high nuisance factor be labelled as a parade by a judge as a means of bringing protests within the remit of the *parades* commission, clearly with a view to regulate the protests and in effect stop the right to *free* assembly.

  • Gopher

    @ Mick “Under direction of PBNI? Or not?”

    Nope operational freedom but If the PBNI dont like what the Chief Constable is doing then they fire him. This has bugger all to do with the courts. The “Law” is getting too invasive it is simply a money generating cartel.

  • Mick Fealty

    Surely this firmly a policy rather than operational matter? Particularly when you consider the PSNI was instrumental in MB’s appointment.

  • Mick Fealty

    DC,

    No cards until I get some informal advice on the legality of those last two comments.

  • Son of Strongbow

    An interesting and far reaching judgement that without doubt curtails police operational independence.

    Heretofore the police often made an operational decision to closely monitor illegal protests or to contain violence by setting up ‘Aunt Sally’ lines where they absorbed whatever was thrown at them.

    Evidence was gathered and later arrests made, some 700 in relation to offences associated with ‘flag protests’.

    Now such ‘enforced inertia’ is no longer available. The law must be upheld, an illegal parade stopped, at the time that breach occurs.

    Interestingly 2014 marks the 50 year anniversary of the Davis Street disturbances that followed the police being required by the Minister of Home Affairs to remove an Irish Tricolour illegally displayed (under the then Flags and Emblems Act) at the Republican Party offices.

    Although the flag had been on display the police who patrolled the area had displayed an ‘enforced inertia’ towards it.

    It is more than likely that Justice Treacy’s decision will be overturned on appeal. If not Twaddell will be an interesting watch, as may be Ardoyne on the 12th – no more police standing on the boundary of the area but a move into the Ardoyne to enforce the law.

    Another interesting point is the role of the PBNI. The Board is responsible for the appointment of all ACPO ranks within the PSNI (ACC and above). How will the Board deal with its allegedly under performing employees?

  • DC

    I genuinely believe you are seriously over reacting there Mick on my last two comments and I wasn’t trying to be smart I was being serious.

    Judges are not without their own subtle class prejudices. I am prepared to answer for my comments to the police and anyone who wishes to act on them and if you are approached assist away.

  • DC

    The police I think are going with the legal take that they originally viewed the protests as actual protests and had no right to ban protests under human rights and as a result used differing approaches to contain / manage the protests some illegally such as blocking roads. As Strongbow mentions, the way the PSNI managed that has come under attack by the public such as doing nothing which is fair enough.

    The point I am making that Mick edited out and which the PSNI are appealing is that legally the protests it would seem should have been viewed as parades and a procession and as a result the PSNI should have policed it pretty directly as they would do to uphold other Parades Commission determinations. Despite in this instance the police not actually believing it was a parade, which I agree, therefore the police chose to act and police as they saw fit in the circumstances, on a protest by protest basis.

    Now on the above take I am prepared to be corrected if I have took it in wrong or misread it.

    Is the *legal* outworking of this decision that all protests are now to be viewed as processions and potentially illegal by default and the police to police such protests as if they were in effect policing a Parades Commission determination?

    If so the judge has created a situation where people in NI only have the right to a regulated protest and I imagine he is living in hope that there will never be angry protests into their 1000s ever again in N Ireland, as I would love to see the PSNI contain and manage that in line with his ruling.

  • Jagdip

    The PSNI has issued a statement

    http://www.psni.police.uk/index/news-archive/news-2014/april-2014/pr_chief_constable_s_response_to_judicial_review_judgement_280414.htm

    Not sure how “studying the judgement carefully” sits with an apparently premature “we are appealing the judgment”

    and what do they mean in concluding

    “Justice has been done”?

    If there is an appeal, the the justice obtained by the Short Strand resident has not been conclusively “done” and it is the PSNI’s appeal that is frustrating that conclusion.

    IMO, what the PSNI write makes a lot of sense, but for some watching the actions of groups in south Belfast erecting paramilitary flags, it just adds to to the sense that justice is not being done, nor is it being seen to be done.

  • Granni Trixie

    DC
    You seem to demonstrate class prejudice yourself in assuming things about the background of the judge/judges. I would image that whatever the limits of their social background their profession gives them access to the seamy side of life and a range of the kinds of problems which can arise from , say, family cases. It has to broaden their perspectives.

    Also bear in kind social mobility – numerous people at high levels in the legal profession in NI ,including judges, went to Christian Brothers Grammar,Glen Rd or St Malachys whereas in England the judiciary is dominated by people from private schooling and Oxbridge education.

  • DC

    Here it is –

    Section 6 of the Public Processions (Northern Ireland)

    Act 1998 (“the 1998 Act”) requires a person proposing to organise a public procession to give notice of the proposal to the PSNI not less than 28 days in advance. Once notified, the PSNI is then required to immediately send a copy of the notice to the Parades Commission. Section 6(7) of the 1998 Act provides that a person who organises or takes part in a public procession which has not been notified to the PSNI is guilty of an offence.

    So it is clear all protests are according to the judge processions, now it’s clear why no one took responsibility for organising the protest either, I mean if you were protesting and trying to assert your right to protest why would you bother putting your protest under the microscope of the parades commission, for large events and annual parades and so on that is more understandable, but not if you are protesting and annoyed about governance issues.

    Yeah I am going to organise a protest against the state and its powers that be by applying to the same state via its policing authority – said no protester ever!

  • DC

    Sorry Granni I was assuming that there was leeway in determining whether a protest was a protest or instead an actual procession / parade and wondering how the judge in absence of a definition of parade / procession / protest had decided on it being a parade. I was thinking that he might have mistook recurrent union flag protests as nothing other than 12 of Julys in different form and decided to all intents and purposes to coin it a parade just to get it regulated because he didn’t value it as a proper human rights based protest. I was thinking he might have devalued it because of it being seen as ‘fleggy white trash’ and worthy of PC regulation and banning for the common good of the middle classes.

    But it seems to be the case that legally the default position is that all protests are by their very nature processions.

    I would think you could clearly argue against that but in NI I imagine that has not happened so the judge can quite easily decide it to always be the case – that all protests are processions.

    Therefore you do only seem to have the right to a regulated protest.

  • Framer

    Does Sir Seamus have no memory of October 5 1968 when the RUC batoned an illegal protest parade in Duke Street in Londonderry and the consequences that flowed from that?
    Or is this a new form of majoritarianism?

  • Mick Fealty

    DC,

    I’m not overacting. If I had been, you’d have been on a Red by now… I want those statements of yours looked at, because they appear to be going beyond fair comment on the judgement and, if I might use one of our own cliches, playing the man.

  • tacapall

    DC most people know the difference between a protest and a parade its a bit like those Orangemen who deny they are parading and claim they walking to church in a group but that doesn’t stop them walking in the middle of the road, blocking traffic, causing disruption and imposing on the local communities that they pass. If you walk in a group in the middle of the road to a place you are going to gather at, then its a parade, once you get to your location its a protest. Its not rocket science.

  • DC

    In the absence of a parades commission determination the judge wants the PSNI to police like it is acutally upholding one and I imagine he wants the PSNI to police it as if the parades commission determination was in the negative, whereas the PSNI in the absence of a PC ruling is falling back on its human rights approach to policing and policing on a protest by protest basis.

    The Parades Commission is a misnomer after the judge’s ruling its name should be changed to Parades & Protest Commission.

  • Granni Trixie

    Tacapall

    Spot on.
    Seems to me however that exploiting definition ambiguities has been tolerated for pragmatic reasons but now that it is habitual definitions and approaches to policing demos have to be revisited.

  • DC

    ‘if you walk in a group in the middle of the road to a place you are going to gather at, then its a parade, once you get to your location its a protest.’

    The reality is for most protests you need to gather together and walk as part of that protest, unless you can be beamed into position Star Trek style and just stand still.

  • DC

    That’s why I am saying the Parades Commission is a misnomer.

  • Neil

    The reality is for most protests you need to gather together and walk as part of that protest, unless you can be beamed into position Star Trek style and just stand still.

    Trades Union manage it fine. Just spread the word, protest at City Hall at 1. Everyone turns up, has a protest and goes back to work. That’s a protest. Parading back is just wierd, unless there was some ulterior motive *like passing a Catholic area cough cough*.

    You then have a protest and a parade as another option. Like the ones the fleggers started having once they realised the illegal parades thing was gonna be a problem, and other protests like the Irish language one two weeks ago:

    http://www.paradescommission.org/parades/?parade=47798

    Protest: meeting at a place to register your displeasure.
    Parade: making your way to and from somewhere with lots of people.
    Parade and protest: both of the above.

    Sorry Granni I was assuming that there was leeway in determining whether a protest was a protest or instead an actual procession / parade and wondering how the judge in absence of a definition of parade / procession / protest had decided on it being a parade.

    He probably used a dictionary DC.

  • Coll Ciotach

    If Chief Baggott is saying the police do not have resources, and I think, in the case of widespread disruption such as the flegs protest, he should not have, then he should not have, the army should be called in. At the end of the day that is part of their role. I wonder how the London govt would spin that one?

  • Morpheus

    If you want to protest then do so in a peaceful and lawful way

    If you want to parade then apply to the parades commission then abide by their rulings and the law of the land

    If you break the law then expect to suffer the consequences

    It’s that simple.

    People, like the resident who took the case, just want to get on with their everyday lives and not be hasstled with this crap day in day out

  • DC

    ‘Trades Union manage it fine. Just spread the word, protest at City Hall at 1. Everyone turns up, has a protest and goes back to work. That’s a protest. Parading back is just wierd, unless there was some ulterior motive’

    That’s OK if you work in the city centre and are within the zone of your protest but technically if it is a large protest into the 1000s you will be involved in a procession in terms of entering the zone and leaving it in high numbers. OK if it has a small ish turn out and you can park and attend in wee groups.

  • Morpheus
  • Roy Walsh

    DC, the judgement seems quite clear, albeit the BBC reporting may lead one to think otherwise.
    My own thinking is, how will the CA manage to over-turn what is a clearly thought out statement of law and fact to appease the police and Unionism?

  • cynic2

    Great to hear SF advocating mass arrests of illegal protesters at Ardoyne.

    I assume that will also apply to those who climb on Land-rover bonnets?

  • DC

    Neil

    Dictionary

    Procession – the act of moving along or forward

    How can that not happen in order to make your way to and from a large protest?

    Next up Parade -

    1.
    a. An organized public procession on a festive or ceremonial occasion.
    b. The participants in such a procession.
    2.
    a. A regular place of assembly for reviews of troops.
    3. A line or extended group of moving persons or things: a parade of strollers on the mall.
    4. An extended, usually showy succession: a parade of fads and styles.
    5. An ostentatious show; an exhibition: make a parade of one’s talents.

    Surely most of the above definitions linked to a parade apply also to the vast majority of serious protests.

    So there it is all protests are processions and need regulated unless you can ensure that you gather in 1s and don’t be seen to move along forward in more than 1s perhaps in 2s if lucky.

  • DC

    ‘DC, the judgement seems quite clear, albeit the BBC reporting may lead one to think otherwise.’

    Yes the judgement is clear still doesn’t mean it creates a mess for the PSNI, my initial mistake was thinking the right to protest was somehow separated from the parades commission.

    But based on his ruling it isn’t clear how a procession can be separated from a large protest and both are now linked, i don’t believe the walk home or to the city centre was a parade but i guess it was a procession as part of a scheduled protest.

    Still can’t see any protesters in future notifying the police should they believe there to be a procession as part of their protest when protesting against the state / powers that be / local government in future.

  • tacapall

    “Procession – the act of moving along or forward

    How can that not happen in order to make your way to and from a large protest”

    DC How can sporting organizations do it, like GAA matches, do they all parade up the middle of the road or how do the Apprentice boys get to Derry, do they walk the whole way or do they meet up in Derry then parade, protest or whatever it is they do.

  • Barnshee

    “PSNI never take any kind of risk with their own personal safety. Certainly they are at some small risk due to the uniform on their back, but as an entirely typical example see the young family on the Falls Road after the mortar attack from the cemetery. The cops high tailed it out of there and didn’t come back for some time. The most important thing to the PSNI is their own safety, nothing more, nothing less. Which is why they allowed small groups of tracksuit bedecked unemployed teenagers to grind Belfast to a stand still instead of trailing them off the road.”

    Cops have been caught our before in West Belfast on more than one occasion ( one of their number expressed the view to me that “they can eat each other in West Belfast I’m not going to get hurt for anyone”
    There is an ongoing problem there where W Belfast is regarded largely as the author of its own misfortunes

    Have a good look at the police —a large proportion seem to be recruited from middle aged female social workers and smallish spotty faced boys who look as if they should not be out without their mothers. They are unlikely to intimidate any (alcohol fueled ??) crowd. Their is then the additional nagging fear -real or imagined that even today they still largely have to live in the prod community. Wee Billy gets a slap from the cops? – wee Billy’s Da might “see” a cop about it later on .

    The cops have played it right -let the “protesters” put themselves in the wrong -as they have clearly done and sweep them up -one by one if necessary. Then get them a criminal record with all that implies for their future employment prospects-if they ever had any

  • Big Island Exile

    Back in August 2011, to prevent an EDL march, Home Secretary Theresa May agreed to a ban across five London boroughs.

    She said: ‘Having carefully considered the legal tests in the Public Order Act and balanced rights to protest against the need to ensure local communities and property are protected, I have given my consent to a ban on all marches in Tower Hamlets and four neighbouring boroughs for a 30-day period.

    ‘I know that the Metropolitan Police are committed to using their powers to ensure communities and properties are protected. We encourage all local people and community leaders to work with the police to ensure community relations are not undermined by public disorder.’

    The Home Secretary also wrote to local political representatives to inform them of her decision after several had expressed concerns about possible public order implications if the march went ahead.

    The ban imposed will cover all protest marches by any group, but will not prevent static demonstrations.

  • stewart1

    I’ve only noticed recently that the same flag protesters still gather nightly at the interface at Castlereagh Street – Short Strand with UVF flags/chants etc.. Strange that this type of intimidation is allowed?…or perhaps the PSNI don’t know the legal definition of incitement?

  • DC

    The way I see it is if people want to walk to the protest over the sovereign flag fair enough but it seems that doing so again is now a procession and a matter for the parades commission.

    Just to say, perhaps if the residents didn’t rush out and engage with the protesters who were on the footpath at that point, then the properties or property would not have been damaged as a result of the protesters likely returning bottles and masonry thrown at them walking home.

    https://www.youtube.com/watch?v=GiI7HdUjpzM

    In the clip above you would understand the judge’s decision more if the flag protesters were charging and running at the properties.

    The judge seems to value the right to family life and privacy over the right to protest but it’s not lost that the properties were perhaps trashed by their own missiles and is not clear who actually brought about the violation of rights in the first place.

    PSNI will take the blame sure.

  • Big Island Exile

    The Public Order Act 1986 differentiates between static demonstrations and marches.

    Static Demonstrations (also known as assemblies)
    • The law is clear that neither the police nor the Government have any powers to ban a static demonstration (assembly) unless it is on private property
    • To ban an assembly on private property, called a trepassory assembly, the police must reasonably believe that it may result in serious disruption to the life of the community. An Order banning a trespassory assembly is made by the local Council on police advice with the consent of the Home Secretary
    • Static demonstrations do not by law have to be notified in advance
    o serious public disorder, or
    o serious disruption to the life of the community, or
    o serious damage of property, or
    o the purpose of the organisers is to intimidate others
    • The conditions or restriction that can be placed on an assembly are limited to its size, duration or location

    Marches or processions
    • There are different laws for marches or processions. There are very limited powers to ban a march/procession
    • A march/procession can only be banned where the police consider that it would result in serious public disorder and that placing restrictions or conditions on such a march – for example its duration, location and size – would not be enough to prevent the disorder

  • http://nalil.blogspot.com Nevin

    In the context of political policing, who isn’t under a ‘material misapprehension’ about the circumscribed nature of police powers? For example, did the ’round table’ confabulations or that Dick Spring briefing feature in the deliberation? Secretaries of State participated in both and they would out-rank Chief Constables and a local Minister of Justice.

  • DC

    Having watched the above clip again I am hard pushed to believe stragglers walking home from the city hall flag protest amount to a ‘procession’ worthy of parades commission judgement and determination.

    They are walking on the pavement and don’t appear to be brigaded into any sort of orderly fashion, then residents come out and stone them at that point do they move off the pavement onto the road.

  • DC

    It is also worth bearing in mind that the dictionary definition of say discrimination is different to the actual legal one and I think the same should go for parades and processions and so on otherwise we will end up getting into stupid situations debating whether someone or people ‘moving along’ constitutes a procession and parades commission regulations.

    I believe the PSNI should win this appeal.

  • Pete Baker

    Adds The Chief Constable’s statement in full [added emphasis throughout]

    We are studying this judgement carefully but whilst respecting the judge and his decision, it does raise a number of serious operational dilemmas. At the time I said our approach would be measured and responsible and that people would be brought to justice. They have with nearly 700 charged and yet not a member of the public seriously injured. I do not believe we would be in a place today where political dialogue about parading would be possible without such restraint.

    They were very challenging and difficult times and I pay tribute again to the courage of colleagues in containing a very volatile situation.

    I am concerned that this judgement may constrain their operational flexibility and create an expectation that police will always be able to stop protests or arrest people at the time, irrespective of the circumstances. To do so may require significant force and undermine our attempts to work with communities. That would be wrong.

    As such we are appealing the judgement.

    Throughout the months of the flag protests, our over-riding concern was always safety of all communities and the protection of life. This judgement does not appear to take account of the sheer scale of the protests, the intensity of disorder and the potential for escalation. Indeed on one night we had over 80 separate protests to police, without recourse to the army or at that time mutual aid.

    These were the real time decisions that had to be made.

    To clarify, I take full responsibility for all operational decisions and I stand over them. Assistant Chief Constable Will Kerr was one of a number of gold commanders because of the length of the dispute. I would rather be accused of being ‘soft’ at the time than see many people injured and the future jeopardised.

    Justice has been done.

    [So the end justifies the means? - Ed] That’s the “community-style policing” that the NI Policing Board unanimously appointed him for…

  • Submariner

    I would rather be accused of being ‘soft’ at the time than see many people injured and the future jeopardised.

    Its a pity the Chief constables concern does not extend to the hundreds of his officers injured by various loyalist thugs.

  • Comrade Stalin

    DC,

    What took place was very clearly a parade with banners, flags and so on. Your efforts to try to define it otherwise are quite laughable.

  • Comrade Stalin

    My own thinking is, how will the CA manage to over-turn what is a clearly thought out statement of law and fact to appease the police and Unionism?

    It’s nothing to do with appeasing the police or unionism.

    How exactly do you deal with a large and unruly crowd who refuse to disperse peacefully ?

    The only practicable answer is – baton charges, tear gas and rubber bullets. Which nationalists oppose. So here we are.

  • DC

    One had a placard or card. one. and re flags well that’s my point I was making about the judge mistaking it for the 12th in different form, remember they have flags because it’s a union flag *protest*.

  • Comrade Stalin

    Don’t waste your time DC. It was a parade, everyone knows it was a parade, and just because the judge is a fenian doesn’t mean he’s wrong.

  • DC

    They were just protesters walking home along the pavement.

  • aquifer

    I understand a procession to be a number of people moving as a body.

    A protest can happen at the one spot.

    I have a right to protest.

    I also have a right to not have rotting ragged flags on lamp posts I have paid for, and a right not to have private armies marking out territory to conduct their extortion rackets, drug sales, and sectarian intimidation in.

    Is it worth having a government that is British when it cannot even assemble some paratroops to stand beside a cherry picker?

    All they seem to do is license adolescent hoods to torment people who work.

  • Mc Slaggart

    CS:

    “The only practicable answer is – baton charges, tear gas and rubber bullets.”

    Nope: A strange form of Kettling was used with the flag protesters.

    They should have constrained the protesters at the and then photographed there faces before letting them go home.

  • Zig70

    My big problem with Baggotts approach is he targets the soft for prosecutions and lets off the masked ringleaders. All he has done is to give a load of kids and halfwits criminal records to make his figures look good. If you wear a mask then you can do what you like, as long as there is more than 20 of you. The judges do seem a bit inconsistent with letting folk off because they didn’t know they were breaking the law, then coming down on the police. But then that’s what you’ll get from a group of professionals that aren’t managed.

  • DC

    Well Zig the PSNI if they fail in their appeal will have to use the judge’s approach of stopping people ‘moving along’ and if they continue to ‘move along’ they are all to be arrested and that will make for interesting policing.

  • Comrade Stalin

    McSlaggart,

    They should have constrained the protesters at the and then photographed there faces before letting them go home.

    That is exactly what they did McS.

  • Comrade Stalin

    Zig70,

    The problem is that the ringleaders are usually well out of sight and there’s no evidence to implicate them. No witness will come forward for fear of intimidation.

    On one hand nationalists demand softly softly policing, restorative justice, and no physical tactics, and a massively downside police force with no full or part time reservists. On the flipside, political unionism demands the right to do whatever the hell it wants without consulting anyone and without being prosecuted. Baggott’s strategy is the only one available to him.

  • http://nalil.blogspot.com Nevin

    “just because the judge is a fenian”

    CS, if this Henry McDonald account is accurate, then the judge might not be a neutral observer in our constitutional tug-of-war:

    Treacy and his colleague Barry MacDonald claimed the declaration to serve the Queen discriminated against them as nationalists and was an affront to their political sensibilities.

  • tacapall

    “Treacy and his colleague Barry MacDonald claimed the declaration to serve the Queen discriminated against them as nationalists and was an affront to their political sensibilities”

    Nevin your scraping the bottom of the barrel bringing up an issue that has absolutely no bearing on whether the PSNI acted according to the law. Are you suggesting for even a moment that some laws can be observed from a religious perspective in that they are legal for one religion but illegal for another but only a protestant judge would understand this. Come on now if any group of people walk from one point to another blocking traffic and causing disruption to the local community and business regardless whether they walk on the road or the pavement, are carrying flags or carrying banners, its a parade. To pretend otherwise and accuse others of being sectarian because they are of a different religion and dont agree with your definition of what is and whats not a parade is diverting attention from the the real point in all this. People who organise parades, processions, protests should be financially responsible for policing costs and any disruption to local business or any damage caused by marchers or protestors.

  • DC

    Fascinating comment Nevin I genuinely wasn’t aware of his background at all in terms of political persuasion I certainly know that the court service and its professional culture is as far removed from loyalism as you can get, but your piece just shows you what you are actually up against.

  • http://WindowsIDHotmail danielsmoran

    Comrade Stalin[8.38] I wonder does Baggott realise fully how ridiculous he sounds claiming that if his men took ‘robust’ action in the flags protests it would have resulted in tens of thousands on the streets, aye, like the Twaddell protest is filling the streets. Seems Baggott just wants a quiet life, if so he should have stuck to one of those English backwater stations. He’s well out of his depth here.

  • Granni Trixie

    Nevin

    I remember being shocked when this was first reported. But on reflection I could see that they were showing leadership and a sign of how far we have moved on as the subliminal message was ” its OK to articulate that you are a Nationalist”.
    It also implies much about some posters here who assume that Treacy is therefore biased in his professional work.

    In passing, I find it interesting that someone who does not wish to swear allegiance to the Queen would accept a Knighthood (he is a Sir, isnt he…or have I got that wrong?).

  • Son of Strongbow

    The current CC was chosen specifically because his experience was of a “quiet life”. Matt Baggott’s ‘community policing’ style was applauded by those on the Policing Board who interviewed and appointed him, including Sinn Fein members.

    I don’t recall much comment about the complete absence of the police from many ‘republican’ Easter parades this year, even ‘traffic management’ was left to so-called ‘marshals’ (thugs in fluorescent bibs).

    At least the PSNI do show up at Twaddell etc; if only to, mostly, watch and note miscreants for future prosecution.

  • http://nalil.blogspot.com Nevin

    Granni Trixi, I’ve inquired about the full judgment and was sent a copy of an uncorrected version. The full judgment will be on-line within the next few days.

    The released summary fails to point out that there were two respondents in the action:

    Conclusion

    [142] For these reasons the application against the Chief Constable is allowed. The application against the SoS is dismissed. I will hear the parties as to the appropriate reliefs.

    In light of the reported accounts of round-table sessions involving a spectrum of participants, including the Secretary of State and the Chief Constable, and previous observations from Dick Spring about Dublin’s involvement in policing decisions here, I find the following entry in the uncorrected judgment rather naive:

    [138] The case against the SoS was only faintly pursued.

    You’d have thought that someone with alleged political sensibilities in a Northern Ireland context, would have been interested in what political direction, if any, had been given to the Chief Constable by significant third parties.

    I was very conscious of the fall-out in Moyle from the out-workings of the Athboy conspiracy yet I haven’t detected such wider considerations in the judgment. As a young friend put it to me recently: “I couldn’t go there; I’m a Catholic.”

    I’m very comfortable with folks having constitutional aspirations – unionist, nationalist and other – but these IMO can create blind-spots when it comes to observing the bigger picture.

  • http://nalil.blogspot.com Nevin

    “even ‘traffic management’ was left to so-called ‘marshals’”

    SoS, perhaps this is part of a wider trend. I noticed an apparent delegation of policing duties to a non-PSNI organisation in Moyle at a public event last year. Perhaps this was just a variation in what has sometimes been termed ‘civic policing’. Some of these groups may have a paramilitary affiliation, others may not. Despite any limitations policing in Northern Ireland may have, I would still prefer it to be carried out by PSNI officers.

  • Mick Fealty

    Nevin, CS and DC,

    You are all wandering very close to an unacceptable line. Please stick to examining the judgement and any weaknesses you may therein.

    Playing the man with a High Court judge is more smart a **e than smart commentary. That’s not to mention potentially dangerous.

    SoS,

    “Matt Baggott’s ‘community policing’ style was applauded by those on the Policing Board who interviewed and appointed him, including Sinn Fein members.”

    Quite. To which we might enquire, where are they now?

  • Son of Strongbow

    Nevin,

    I too prefer the police to police. Putting on a fluorescent jacket does not confer any legal status, and most certainly does not empower someone to stop traffic (I personally experienced the phenomenon at Easter on a public road).

    It seems to be a particular problem when a ‘community’ is perceived to be less than enthusiastic about the police.

    A similar problem can be observed with loyalist bands being accompanied by an individual, in band uniform but sans musical instrument, ‘armed’ with a blackthorn walking stick.

    That is carrying an offensive weapon in my book yet along with bibed ‘traffic policemen’ it is tolerated.

    There are of course official marshal schemes for events in both private and public venues. However no legislation exists that allows such to usurp the role of the police.

    When I came across the problem personally I was tempted to give the thug a ‘Gerry Kelly’ bonnet ride but I restrained the urge. I did report the ongoing offence to the police as a incident of jaywalking. I doubt police responded to the scene.

  • Mc Slaggart

    CS

    “That is exactly what they did (photograph each person on the parade) McS”.

    They did not they took photos from a distance. They did not stop each person and individually photograph them.

  • Mc Slaggart

    @Nevin

    “While a QC in 2000, he successfully challenged the rule that barristers swear an oath of allegiance to the Queen before coming to the bar.”

    So someone who does not swear an oath is not capable of being a “neutral observer “

  • Mc Slaggart

    Son of Strongbow

    “I don’t recall much comment about the complete absence of the police from many ‘republican’ Easter parades this year, even ‘traffic management’ was left to so-called ‘marshals’ (thugs in fluorescent bibs). ”

    It was cheap to police.

    Why do Unionists think they should have lots of police when their is no trouble at their parades.

  • http://nalil.blogspot.com Nevin

    “Please stick to examining the judgement and any weaknesses you may therein.”

    That was why I inquired about the full judgement, Mick, and my latest observation is based on it, not the summary that you’ve linked to. It also takes account of other information that I’ve put in the public domain but which may not have been brought to the attention of the wider public.

    “more smart a **e than smart commentary”

    I don’t do ‘smart a**e’ but I do ask questions that sometimes others don’t.

  • http://nalil.blogspot.com Nevin

    McS, see the Henry McDonald reference further up.

  • Mc Slaggart

    Nevin

    “McS, see the Henry McDonald reference further up.”

    The member of the “Society of Friends” will be shocked at your attitude in relation to oaths.

  • http://nalil.blogspot.com Nevin

    McS, I made no comment on whether or not anyone should take an oath so why should anyone be shocked?

  • Son of Strongbow

    McS,

    Having never carried out even a straw poll amongst “unionists” I’m unaware of the the majority opinion with regards to the deployment of police resources so I’ll leave those (informed ?) insights to you.

    There is a significant difference between “lots” of police and no police.

    This is especially important when folks choose to walk down a public roadway ( that’s the bit between the pavements/verges, often observed to accommodate vehicular traffic in normal situations).

    Although heaven forfend that such issues should be considered when a bunch of yahoos in fancy dress decide to form an illegal walking roadblock.

    So perhaps you’re right on the no-cops option. Next time I’ll drive the John Deere with the bucket to assist my journey.

  • Roy Walsh

    DC, thank-you for the clarification.
    The Judge was asked specifically to rule on the legality of police action or, rather, inaction, hence the reference to Sec. 6 HRA (1998) so the difference between ‘parade’ and procession’, helpfully provided above, is immaterial.
    The report is of course only in summary so we await the full judgement publication, this may further understandings, although it may muddy waters further.
    I’d suspect the police chief constable’s appeal may be based upon the same Sec. 6 above, on which I think he may get some leverage with full clarification will be required from the Lord’s.
    Expect this to go on ’til well after this year’s marching season.

  • http://gravatar.com/joeharron Mister_Joe

    Happy days for two of our commenters. We get to talk about flegs again and Dick Spring and the Athboy conspiracy get another airing.

  • DC

    Sinn Fein protest rally this afternoon over Adams, I am assuming it is unnotified and surely a public procession.

    Will the PSNI now stop and arrest all those involved as a result of Mr Justice Treacy’s labouring under a material misapprehension!?

    As I said, yeah let’s organise a protest against the state and its powers that be by applying to the very same state (via its policing authority) in order to do so – said no protester ever!

    I think Mr Treacy is going to get shot down for holding too dear to his heart parades commission legislation and stretching its powers by thinking it should easily bleed into protests not connected to contentious orange parades not to mention limiting the PSNI’s ability to police protests on a protest by protest basis.

    Treating all protests and processions without notice as if they are one big contentious orange parade needing banned is probably not a very good judicial output.