On 2 July 2018, the High Court upheld the use of a Public Space Protection Order (PSPO) by Ealing Council (“the Council”) in relation to pro-life vigils outside the Marie Stopes UK West London Centre (“the Centre”), which operates from premises on Mattock Lane in Ealing. The  PSPO had been introduced after the failure of attempts by the Council at reaching a mutual accommodation between pro-life groups (Good Counsel Network (“GCN”) and “Be Here for Me”) and pro-choice groups (Sister Support) who had been protesting outside the clinic. Two members of the GCN group challenged the Council’s decision to make a PSPO,  Dulgheriu & Anor v The London Borough Of Ealing [2018] EWHC 1667 (Admin) (02 July 2018). 

Background

The background to the activities of the two groups is outlined in paragraphs [5] to [14]; the terms of the PSPO were  such as to prohibit the following activities within the “safe zone” around the Centre[12]:

“(i) Protesting, namely engaging in any act of approval/disapproval or attempted act of approval/disapproval, with respect to issues related to abortion services, by any means. This includes but is not limited to graphic, verbal or written means, prayer or counselling,
(ii) Interfering, or attempting to interfere, whether verbally or physically, with a service user or member of staff,
(iii) Intimidating or harassing, or attempting to intimidate or harass, a service user or member of staff,
(iv) Recording or photographing a service user or member of staff of the Clinic whilst they are in the Safe Zone,
(v) Displaying any text or images relating directly or indirectly to the termination of pregnancy, or
(vi) Playing or using amplified music, voice or audio recordings.”

However, protests were permitted to continue within a “designated area” comprising a well-defined grassy space about 100 metres or so from the entrance to the Centre; these were subject to some restrictions as to the numbers of participants, the size of placards on display and the like [13].

Legislation

Public Spaces Protection Orders fall within Chapter 2, Anti-social Behaviour, Crime and Policing Act 2014 (“the Act”); the Council made the PSPO, which was the subject of the present challenge, pursuant to section 59 of the Act. PSPOs may last for up to three years before requiring a review, although there is no limit on the number of times an order can be reviewed and extended. Section 66 of the Act concerns challenges to a PSPO. The Court noted:

“[22]. A challenge brought under section 66 of the 2014 Act is assigned to the Administrative Court by virtue of PD8A [Practice Direction 8A – Alternative Procedure for claims]. The jurisdiction is akin to judicial review. For example, it is exercisable by a single judge of the Queen’s Bench Division and evidence at the hearing is by witness statement. There are differences. There is no permission stage and the only remedies available are a suspension or a quashing order. Notwithstanding these distinctions, there is no dispute that the level of scrutiny to be applied by the court should reflect that which would be appropriate to judicial review proceedings”.

Intensity of Review

The parties agreed that the implementation of the PSPO had led to the engagement of rights within the ECHR: under section 6 of the Human Rights Act 1998, it is unlawful for the defendant, as a public authority, to act in a way which is incompatible with a Convention right; under section 72 of the 2014 Act, a local authority must have particular regard to the rights of freedom of expression and freedom of assembly set out in Articles 10 and 11 of the Convention when, for example, deciding whether to make a PSPO and, if so, what it should include; under section 3(1) of the 1998 Act, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

The “structured proportionality test” was identified the level of review upon which this Court would embark, was used as the basis  upon which the claimants sought to challenge the making of the PSPO [28].

Detrimental Effect

The first ground of challenge was that the necessary ingredients of section 59 of the 2014 Act had not been established and, in particular, that of “detrimental effect” has not been made out [29 to 32]. The claimants argued that the defendant, when considering the need for a detrimental effect to have been established, applied the wrong tests under section 59 in a number of respects which fatally contaminate its decision to make a PSPO. Mr Justice Turner considered each of these in turn.

Objective detriment [33 to 37] There was “no merit in this argument. The statutory language is clear and the introduction of the concept of “objectivity” takes the claimant’s case no further”. Furthermore, the argument lapsed into a non sequitur: “it appears to have shifted from the resilience of any given individual to meld into a consideration of the threshold level of upset which even those of normal robustness should be expected to tolerate without local authority intervention under the 2014 Act.”

Meaning of “those in the locality” [38 to 43]. The claimants contended that the reference in section 59(2)(a) to the “quality of life of those in the locality” must refer only to those who reside or work in the relevant place or its immediate vicinity or who visit regularly. However, this argument, if successful, “would exclude from consideration the vast majority of those women, together with their family and supporters, who visit the clinic for abortion procedures”.

Evidence of detrimental effect [44 to 55]. The evidence and information available to the defendant was from a number of sources, [44 (i) to (vii)]. Taking the evidence as a whole, the judge found that the defendant had reasonable grounds to be satisfied that the conditions in sub-section 59(2) and 59(3) (a) of the 2014 Act were met [55]. He was satisfied that his findings in respect of the proper interpretation of these subsections was compatible with Convention rights the consideration of which was considered later in the judgment.

“[55]. … The decision of the defendant was, in this sense, thus properly prescribed by law. The issues as to whether the effect of the activities was likely to be such as to make them unreasonable and thus justify the restrictions imposed by the notice are inextricably bound up with the application of conflicting Convention rights to which I will now turn [see below]”.

Interference with Convention Rights

Consideration was then given to the interference with Convention Rights:

• Article 8, paragraphs [56] to [63]
• Articles 9, 10, 11 and 14, paragraph [64]
• Role of Religion, paragraphs [65] to [68], and 
• Legitimate Aims and Competing Rights, paragraphs [69] to [74]

With regard to the last bullet,

• The rights under Articles 8, 9, 10 and 11 which are engaged in this case are qualified rights which may be subject to restrictions for legitimate aims, [69];
• In the case of Article 8, 9 and 11, one such legitimate aim is “for the protection of the rights and freedoms of others”, [70]; and
• In the case of Article 10, the similarly worded legitimate aim is “the protection of the reputation or rights of others”, [71].

The judge was satisfied that the protection of the rights to privacy of the users of the Centre was a legitimate aim [74]. With regard to the consideration of whether the PSPO was capable of achieving the legitimate aim, which interferes with the rights under Articles 9, 10 and 11, i.e. whether there is a “rational connection” between the measures and the aim, he said:

“[76]. The creation of the safe zone meant…that users of the Centre would be able to make their entrances and exits without inevitably being exposed to the close scrutiny of those whose interests lie in supporting or opposing their decisions to terminate their pregnancies. There is, therefore, a rational connection between the measure employed and the legitimate aim of protecting the Article 8 rights of users of the Centre.”

Section 59(5) of the Act provides that the only prohibitions or requirements that may be imposed under a PSPO are ones that are reasonable to impose in order either to prevent the detrimental effect from continuing, occurring or recurring, or to reduce that detrimental effect or to reduce the risk of its continuance, occurrence or recurrence. Furthermore, the related question arises as to what the minimum interference necessary to the claimants’ rights would be under a proportionality review. The potential for less restrictive alternatives was considered [77 to 84]

The claimants contended that better, or at least, no worse results could have been achieved by other means. Each of the alternatives relied upon by the claimants were presented for consideration in the Murphy report [78]. However, for various reasons, none of these was deemed practicable.

The claimants criticised the breadth of the PSPO; in particular, it the PSPO does not distinguish between groups, and the GCN asserted that it should be allowed to continue to congregate outside the Centre even if other groups such as Sister Supporter should be excluded.86. However, “the reality is that such a solution would be completely unworkable” [85, 86]. There were a number of objections by the claimants to the actual wording of the terms of the PSPO, but the judge considered “these, and all other such objections, to be unattractively contrived”.

After considering the question of whether an interference with freedom of expression is “necessary in a democratic society” [90-96], Mr Justice Turner concluded by stating:

[97]. In the circumstances of this case, I do not doubt that there has been a significant interference with the rights of activists under Article 9, 10 and 11. I do not underestimate the seriousness of taking steps which are bound to conflict with that special degree of protection afforded to expressions of opinion which are made in the course of a debate on matters of public interest.

Nevertheless I am satisfied that the defendant was entitled to conclude on the entirety of the evidence and information available to it that the making of this PSPO was a necessary step in a democratic society. There was substantial evidence that a very considerable number of users of the clinic reasonably felt that their privacy was being very seriously invaded at a time and place when they were most vulnerable and sensitive to uninvited attention.

It also follows that, in this regard, I am also satisfied that the defendant was entitled to conclude that the effect of the activities of the protestors was likely to make such activities unreasonable and justified the restrictions imposed in satisfaction of the requirements of section 59(3) (b) and (c) of the 2014 Act.

[98]. Having, in the circumstances of this case, undertaken a structured proportionality review, I have concluded that the defendant’s decision to make a PSPO ought not to be quashed in whole or in part on this challenge.

“[99]. Finally, and at the risk of stating the obvious, I would make the following observations:

(i) This is not a case about the rights and wrongs of abortion;
(ii) The genuineness of the motives of the activists on both sides of the debate cannot be doubted;
(iii) My conclusions in this case do not give the green light to local authorities to impose PSPOs as a matter of course upon areas in the immediate vicinity of abortion clinics. Each case must be decided on its own facts.”

Comment

Apropos of the judge’s final observations supra, although comments from both parties have been reported here and elsewhere, these will not be addressed by L&RUK either in future posts or Comments. With regard to (iii), we note that in April this year, The Guardian reported that eight councils in England were considering setting up abortion clinic buffer zones.

Footnote – The Murphy report

“[7]. … on 3 April 2018, Paul Murphy, an operations manager with responsibility for community safety and services, presented a report (“the Murphy report”) to cabinet on the issue. This was a detailed document which referred to a very considerable number of appendices which included evidence and information from a broad range of sources together with written representations both in support of and in opposition to the proposed PSPO. In addition, representatives of the defendant took statements from users and staff at the Centre.