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

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…