What does Lord Kerr’s judgement in DB v Chief Constable of PSNI actually mean?

I’m a bit pressed for time today, so I haven’t got time to do justice to the commentary on the Short Strand PSNI judgement in the Supreme Court. So I’m going to ask those of you with better legal training that me to decipher the concluding passage of the Judgement for me:

I would reverse the decision of the Court of Appeal and make a declaration that, in their handling of the flags protest in Belfast during the months of December and January, PSNI misconstrued their legal powers to stop parades passing through or adjacent to the Short Strand area.

It seems a strangely esoteric point. Critically, will it have a proper real world effect on the future policing of unnotified parades in Northern Ireland?

  • MainlandUlsterman

    I’d need to read more of the judgment Mick. It sounds like the Law Lords are coming down against the right of police to decide where marches can and can’t go, presumably as it’s not the police’s call, but really I’d need to see the question of law the Supreme Court was actually opining on.

  • AndyB

    I have yet to read the whole judgment, but on its own I think that paragraph means this and only this:

    The PSNI did in fact have the lawful power to prevent the parade taking place.

    That pushes the discretion as to whether to prevent a crime, with the danger of other, worse crimes (public disorder and rioting) or to manage an unlawful parade and prosecute later back onto the PSNI, with the risk that, as in this case, they will be successfully sued for failing to prevent.

  • mickfealty
  • mickfealty
  • R A R McLernon

    The judgement seems fairly straight forward. The judges make the following points. The Parades Commission cannot ban a parade. It can put restrictions in place. However, anyone planning a march or parade must notify the Parades Commission of her or her intention. Not to do so, and proceed with an un-notified parade, is an offence. It is part of the role of police to prevent an offence. Therefore, under this judgement, it would seem that the Police Service is obliged to prevent an un-notified parade, and thus a criminal offence. This moves away from what appears to be the current police practice of letting some un-notified parades go ahead and then gather evidence for possible future prosecution. This is not about police banning or preventing parades. It is about preventing the offence of an un-notified parade. As I understand it, the Parades Commission has no role in a static protest (there may well be other legislation in relation to that). Presumably, how people get to the static protest and whether it constitutes a parade or march may be open to lawyerly interpretation.

  • ted hagan

    The judgment, I believe, is saying that the march was illegal since no notification had been given and the PSNI had a duty to prevent it going ahead, plain and simple. Police chief Kerr believed he had other options besides preventing the march, but he was wrong.

  • mickfealty

    My own confusion arises, as much as anything else from the premise that the PSNI offered, ie, that they weren’t aware of their powers. That appears to be all the judge has ruled on.

  • Annie Breensson

    Now that PSNI is aware that the 1998 Act does not absolve them from all decisions in respect of preventing illegal parades, will we see organisers of same before the judiciary? Gathering evidence should be a fairly simple exercise!

  • anon

    The police proceeded on the basis that their powers to prevent a parade under the Public Processions (Northern Ireland) Act 1998
    stemmed from a decision of the parades commission that restrictions
    should be placed on a parade. In circumstances were the parades
    commission was not even notified of a parade, and did not make any determination, the PSNI believed that they had no
    power under the 1998 Act. In these circumstances, they relied on powers under Section 32 of the Police (Northern Ireland) Act 2000, which relate to a power to prevent public order offences.

    The Court has upheld the High Court judgement and clarified that under the Public Processions (Northern Ireland) Act 1998 the PSNI has the power to stop an unnotified parade. The reference to the PSNI misconstruing their legal powers is a reference to their presumption that they did not have this power under the 1998 Act.

    Will it have a real world impact? I believe so. The Court has made it clear that the police have the power to prevent unlawful unnotified parades, and they will have to explain why they don’t exercise that power in future without relying on the ‘public order’ argument that they have hitherto adopted. Furthermore, the Supreme Court has confirmed that operational decisions on whether to facilitate unlawful parades are subject to legal challenge / oversight. The PSNI will need to rethink their whole approach to unnotified parades in light of this ruling.

  • file

    Now what we need is someone else from the Short Strand or somewhere to take a case as far as the Supreme Court to find out if it is the peelers’ job to take down flegs as well – or to prevent them going up in the first place, as they are being hung from public property. Anyone game to start proceedings?

  • AndyB

    I have got through the judgement now – I reckon it means that the only point of contention referred (whether PSNI has the lawful authority to prevent unnotified parades) has been settled, and the rest of Mr Justice Treacy’s judgement stands.

    As far as future precedent goes, I don’t think it absolutely forces the PSNI to prevent unnotified parades – but failure to do so will leave them open to challenges by people thus prevented from going about their lawful business.

  • AndyB

    I’m not sure it absolutely compels them to prevent an unnotified procession that they know is taking place, subject to them facing lawsuits as in this case.

    On the point of what constitutes a procession, groups of 4-6 people dandering down the Newtownards and Albert Bridge roads without bands, not in step etc are unlikely to attract attention. Of course, they could get the bus…

  • file

    Bit of an embarrassment if the PSNI do not know the law, surely? Also bit of an embarrassment for BBC journalists (yet again) that when the assistant chief constable mentioned on the radio that they had sought legal advice on the matter, the journalist did not even think to ask who gave them the legal advice.

  • file

    What was the rest if Treacy’s judgment?

  • AndyB

    Actually, that was pretty much it. If the PSNI would have prevented failure to comply with a parades commission determination in the same situation, they should have prevented an unnotified procession as well.

    It was application for judicial review, so I think that now leaves it open to sue PSNI for damages for not following the law, now that the principle has been established.

  • Nimn

    I suppose this has been asked elsewhere, but the question I have is since 1998 – 2012 have the police allowed un-notified parades to pass without intervention, save for telling those involved by notice or bull horn that they were taking part in an un-notified parade?
    It is also odd that the PSNI did not believe they had the power to stop an un-notified parade – in itself an offence – while at the same time reporting those who took part in one to the PPS with a view to prosecution for a criminal offence.
    There is however a police pattern here where the greater part of valour is to stand back when offences are being committed, record the event and follow up with prosecutions later. We have sen this around paramilitary funerals, parades and other protests whether notified or not.
    While I understand that operational decisions require a fine judgement as to whether police action might defuse or exacerbate a situation I feel the default position is tilting towards what is more expedient for the PSNI rather than for the greater community good.

  • AndyB

    Whole thing is on the NICTS site at goo.gl/I6jhTq

  • eireanne3

    It’s not a question of preventing a crime – police cannot arrest people the night before on the grounds we’ve evidence you’re planning an unnotified march/parade
    But the police should have moved in to stop the unnotified parade once it was lined up and ready to move off.
    The fact that they didn’t, just stood back and watched and filmed, infringed upon the rights of the residents along the route as the unnotified parade prevented them from going about their normal daily routine and business

  • eireanne3

    “they weren’t aware of their powers”.
    i suppose they had to find some excuse/justification for their refusal to uphold the law

  • Annie Breensson

    They should also have presented evidence of unlawful activity (i.e. planning and organizing an illegal parade) to the DPP.

    Were Wee George’s weekly rants all signed off by the Parades Commission?

  • AntrimGael

    It boils down to the PSNI having the power and right to stop the intimidating, Loyalist knuckledraggers coming from EVERY part of Belfast to the City Hall BUT refusing to do anything about it. Once again Unionist anarchy and Loyalist violence, intimidation and thuggery won out as it ALWAYS has done.

  • R A R McLernon

    You could well be right. That seems to be the stance of the Chief Constable. My interpretation may have been too simplistic. I considered the view that if police saw a crime taking place – robbery, drink driving, shoplifting etc – they are obliged to prevent it. But, then there will always be the issue of proportionality and what the CC seems to have fastened on, that is ‘operational discretion.’ I suppose that is a bit like the bollocking I used to get as a child in the 1950s for riding a bike on the footpath, rather than being hauled before the beak.

  • JOHN TURLEY

    A very poor excuse, Its hard to believe they could be that stupid