Local authority – Statutory powers – Public spaces protection order – Human rights – Right to respect for private and family life – Freedoms of expression and assembly – Appellants appealing against dismissal of challenge to public spaces protection order providing for safe zone around abortion clinic – Whether statutory requirements for order being established – Whether right to privacy being engaged – Whether proportionate interference with human rights – Appeal dismissed
The appellants were members of a Christian group who, together with other pro-life campaigners, had for a number of years congregated, usually on a daily basis, immediately outside the Marie Stopes UK West London Centre, which provided family planning services, including abortion services. Their aim was to dissuade women from having abortions by, among other things, attempting to engage users of the centre in dialogue as they entered and left, handing out leaflets and displaying posters depicting foetuses at various stages of gestation. They also held group vigils. A pro-choice group began to hold counter-protests outside the centre, which created an atmosphere of tension.
Under section 59 of the Anti-Social Behaviour, Crime and Policing Act 2014, local authorities had power to make a public spaces protection order (PSPO) if, among other things, the activities targeted by the order had a detrimental effect on the quality of life of those in the locality and the activities were unreasonable so that a PSPO was justified. It was a criminal offence under section 67 of the Act to violate the restrictions imposed by a PSPO.
After failing to find a compromise between the two groups, the respondent local authority made a PSPO prohibiting any form of protest relating to abortion within a defined safe zone around the centre, save within a small designated area roughly 100 metres from the entrance in which protest was permitted, subject to restrictions.
The appellants challenged the PSPO under section 66 of the 2014 Act contending that: (i) the expression “those in the locality” did not include merely occasional visitors to the locality, including visitors to the centre; and (ii) the terms of the PSPO were a violation of their rights under articles 9 to 11 of the European Convention on Human Rights (ECHR). The High Court dismissed the appellants’ claim: see [2018] EWHC 1667 (Admin). The appellants appealed.
Held: The appeal was dismissed.
(1) It was clear from the terms of the 2014 Act that Parliament deliberately decided not to limit, by way of a statutory definition or statutory guidance, the expression “those in the locality”. It was for local authorities to identify behaviours which caused “detrimental effect on quality of life” in their particular area and to decide who was in the locality for the purpose of protection from such activities. There was no basis upon which to artificially limit the words used in the statute to consideration of regular or repeated visitors. Local authorities were restricted in making their PSPOs to showing that the effect of the activities on visitors “is, or is likely to be, of a persistent and continuing nature” before a PSPO would be justified. The defendant was correct to interpret the expression “those in the locality” in section 52(2)(a) as capable of embracing occasional visitors, and was entitled to decide on the facts that the women, their family members and supporters visiting the centre, in addition to staff and local residents, fell within that section: Summers v Richmond upon Thames London Borough Council [2018] EWHC 782 (Admin), [2018] 1 WLR 47 considered.
(2) The rights of those visiting the centre under article 8 of the ECHR were engaged by the appellants’ activities both from the perspective of the right to autonomy on the part of service users in wishing to carry through their decision to have an abortion and from the reasonable desire and legitimate expectation that their visits to the centre would not receive any more publicity than was inevitably involved in accessing and leaving the centre across a public space and highway. The very attendance of service users at the centre was a statement about highly personal and intimate matters. There was no alternative way of arriving at and leaving the centre except across a public space, which they would naturally wish to cross as inconspicuously as possible.
(3) The judge had to consider whether the PSPO made by the defendant was both a necessary and proportionate restriction of the appellants’ rights to manifest their religion (article 9), freedom of expression (article 10) and freedom of assembly (article 11) in order to accommodate the article 8 rights of women visiting the centre. Justification under article 10(2) and article 11(2) required that the limitation of the ECHR rights had to be the least restrictive possible. Further, there was the overlapping question of whether the measure was necessary in a democratic society, which was essentially a question of whether a fair balance had been struck between the competing rights and interests of the parties. Providing the judge has properly carried out that exercise, the appeal court could not interfere with the judge’s conclusion which would not be “wrong” within CPR 52.21(3).
The judge was entitled to conclude that, on the particular facts of the present case, the article 8 rights of the service users visiting the centre outweighed the rights of the appellants and other pro-life protesters under articles 9, 10 and 11, and the terms of the PSPO were proportionate. The protests went far beyond simply causing irritation, annoyance, shock or disturbance to the service users, responses which could properly still fall within the protection of articles 10 and 11. Given the established persisting impact upon the quality of life on those visiting the centre as a consequence of the activities of the protest groups, a PSPO was necessary to strike a fair balance between protecting the rights of the service users on the one hand and the protesters on the other.
(4) The objections to the individual terms of the PSPO as being too vague had been overstated. Each of the particular prohibitions in the PSPO had to be viewed as aspects of the prohibition on protesting against abortion in the safe zone. Viewed in that way, they were not impermissibly vague or excessive.
Philip Havers QC, Alasdair Henderson and Ben Fullbrook (instructed by Tuckers Solicitors) appeared for the appellants; Ranjit Bhose QC, Kuljit Bhogal and Tara O’Leary (instructed by the London Borough of Ealing) appeared for the defendant; Victoria Wakefield QC and Malcolm Birdling (instructed by Liberty) made written submissions for the intervener.
Eileen O’Grady, barrister
Click here to read a transcript of Dulgheriu and another v Ealing London Borough Council
