England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		4th November 2005

1. LORD JUSTICE MAURICE KAY: In December 2004 the Birmingham Repertory Theatre mounted a production of a play entitled "Behzti" in its studio theatre. The play was offensive to members of the Sikh community. Even before the first night, members of the community had expressed their concerns to the Theatre management. They had been allowed to see a rehearsal. The Theatre would not agree to the alteration or discontinuation of the play. A number of Sikhs started to attend the Theatre when the play was being performed so as to protest. Initially the protests were undoubtedly peaceful and unobjectionable. However, tensions increased on 15th December. Protesters attended again on 16th December. That afternoon there were performances of "Behzti" in the studio and of a children's play in the main auditorium. A point came when the police issued the demonstrators with a dispersal direction under section 30 of the Anti-Social Behaviour Act 2003 requiring them to leave the designated area, which included but was not limited to the Theatre and the immediate vicinity, and not to return to it for 24 hours. The claimant was one of the demonstrators. He was issued with a dispersal direction, but refused to obey it. He was arrested and taken to a police station, where he received a caution for knowingly contravening a dispersal direction, an offence under section 32(2) of the 2003 Act. In these proceedings he seeks to challenge the lawfulness of the dispersal direction, his arrest and the caution. It is common ground that if the dispersal direction was lawful then so were the arrests and the caution; but if the direction was unlawful then the arrest and the caution were equally unlawful. Before addressing the grounds of challenge, it is necessary to describe the facts in more detail.
2. On 19th November Chief Superintendent Goodman made an authorisation order under section 30 of the 2003 Act. Section 30 provides:

"(1) This section applies where a relevant officer has reasonable grounds for believing---

(a) that any members of the public have been intimidated, harassed, alarmed or distressed as a result of the presence or behaviour of groups of two or more persons in public places in any locality in his police area ...; and

(b) that anti-social behaviour is a significant and persistent problem in the relevant locality.

(2) The relevant officer may give an authorisation that the powers conferred on a constable in uniform by subsections (3) to (6) are to be exercisable for a period specified in the authorisation which does not exceed 6 months."

3. The Chief Superintendent's reasons for taking the step of making an authorisation order had nothing to do with the Theatre, the play or the Sikh community. The authorisation was in these terms:

"Authorisation is hereby given that I, Peter Goodman, as Chief Superintendent of the Operational Command Unit, Steelhouse Lane of the West Midlands Police, having consulted with Birmingham City Council ... and considered the grounds for this Authorisation as detailed below hereby give Authorisation for constables in uniform to exercise powers, which are set out in section 30(3) to (6) of the Anti-social Behaviour Act 2003 in the following locality ..."

That locality was identified by an attached list of streets and identification plan. The authorisation was said to run from 1900 hours on 26th November 2004 until 06.00 hours on Tuesday 4th January 2005. The document continues:

"The grounds for this authority are that members of the public in the above locality have been intimidated, harassed, alarmed or distressed as a result of the presence or behaviour of groups of two or more persons; details of which are:

In Broad Street there is an increasing amount of anti-social behaviour and violent incidents associated with both alcohol and the volume of individuals, increasing during the run up to Christmas, condensed into a small area.

This order is to allow the police to take positive action against the small minority who are intent on causing alarm, distress and harassment to the majority looking for a safe and enjoyable night out.

Anti-social behaviour can be evidenced in a police document.

The anti-social behaviour detailed above is a significant and persistent problem in this locality."

Thus at the time the concern of the Chief Superintendent was with what I may describe as seasonal revellers who might resort to anti-social behaviour in the Broad Street area.

4. Members of the Sikh community had become apprehensive about the forthcoming production as early as October and meetings and discussions had taken place between community representatives and the Theatre management. These resulted in the invitation to attend the dress rehearsal.
5. The first sign of protest at the Theatre was on 9th December. The police log for that night records:

"... there are 6-7 Sikh gents in and outside of the premises and they have been allowed to hand out leaflets in their protest against the play. They are not causing any disturbance and security are happy for them to stay."

6. The next significant date was 15th December. There are a number of entries in the police log for that night, to which I should refer. One records a 999 call at 17.48 hours, the caller being recorded as saying:

"Have rung Steelhouse Lane several times today re: what is supposed to be a peaceful demonstration outside the theatre tonight. I have now had staff threatened by these people and the offenders have said they will do whatever it takes to break their way in tonight."

The caller was a member of staff at the Theatre. There is an entry in the log for 18.11 hours, which refers to eleven protesters with placards:

"Peaceful at the moment, will monitor."

A further entry at 19.07 records a telephone call from the employer of the doormen working at the Theatre. It records him saying:

"The doormen have been threatened by Sikh protesters (approximately 25 in number) who are protesting at the Sikh play being staged here.

They have threatened to kill the doormen. Further call from Ms Jones [theatre manager], who states there are now around 50 protesters inside the building. She is requesting some assistance."

The log for 19.20 records:

"50 people forced their way into the premises."

A minute later the log records:

"Peaceful protest ... handing out leaflets but still refusing to leave."

And a little after that:

"All seemed good humoured and handing out leaflets. They are now singing."

The entry for 19.36 states:

"There are 50 inside, 20 inside [one of those references should be to outside]. Peaceful at the moment but there is the potential."

At 19.56 the log refers to the issuing of a dispersal notice and a need for officers in connection with the dispersement. At 21.21 there is an entry referring to "tonight's disorder" and the expectation of a performance of the play and also the children's production the following afternoon.

7. The events of the night of the 15th were followed by a meeting which took place on the morning of the 16th between the hours of 11.30 and 13.30. We have been shown notes taken at that meeting by a senior police officer. It was attended by representatives of the Sikh community, the Theatre, the local authority and police officers. It is apparent that the meeting began with Chief Superintendent Goodman acknowledging the right to lawful protest but indicating that the events of the previous night had been different and had involved a threat of public disorder and unlawful trespass. The purpose of the meeting was to find a peaceful way forward. One of the contributors to the meeting, who was from the Theatre, described the events of the previous night as being "a huge escalation". One of the representatives of the Sikh community said, "You may get hot heads and they may get into the production". It was made clear that the elders of the community were against anything unlawful but that there might be "hot heads who might be difficult to control". One of the members of the community opined that he did not think that the police could control it. He is also recorded as saying:

"If you don't want further trouble, don't let the play run for the full programme ... Feelings are running high. Cut the run. We'll work with you people."

It is unnecessary to refer to any of the further contributions. The meeting was concluded on the basis that members of the Theatre management and the police would review the security arrangements for future operations.

8. The inescapable impression of the notes of that meeting is that the police were trying to reconcile the interests of all parties. The police clearly intended to review the arrangements for policing the protest in consultation with the Theatre management, but before they could do so the events of the afternoon of 16th December occurred, at a time when there were concurrent matinee performances of Behzti and the children's show.
9. There was a request for police officers to monitor the situation on the ground. There is a record in the log for 15.08 of the 16th which states:

"Approximately 20 to 30 trying to get into the theatre. There are 400 inside the auditorium about to come out ..."

A further entry at 16.13 states:

"Manager has asked that all people are removed. Everyone being removed and section 30 dispersals being issued."

10. I accept that the intentions of the claimant was entirely peaceful and that the same was true of others. I also accept that the disorder did not reach the level of the previous evening. However, it is clear that what occurred on the 16th was not as innocuous as the claimant may have wished. This is apparent from some of the witness statements.
11. Katrina Jones, the general manager of the Theatre, spoke to the protesters in the foyer of the Theatre some time after 14.00 hours. The protesters were asking, "Who can take the play off?" and adding, "It's got to stop." More protesters were arriving, Ms Jones states:

"The type of audiences we had in were elderly Asian women watching 'Behzti' and children ... in the Main Theatre and for them the protesters would have been very intimidating. There were also customers in the restaurant and bar situated behind the protesters who could have been intimidated.

One of the protesters shouted and kicked a plastic poster box, which hanged in a plate glass window. I told him to stop and that [it] could be construed as criminal damage, which was reiterated by one of the police officers. The interval was due in the Studio Theatre and we made a decision not to let the audience out due to not knowing what the protesters may do to secure the security of the set and audience."

A little later she refers to one of the protesters setting off the fire alarm. Ms Jones told Inspector Phillips that she wanted the protesters ejected from the building. She states:

"The protesters were asked to leave but would not. The police formed a cordon and ejected them out of the glass doors. Once they were removed they dispersed. We then let the ... audience out of the theatre, sixteen of which did not stay for the second half due to the situation."

A little later she states:

"A number of my staff were stressed and uncomfortable ..."

12. Inspector Phillips, who was the senior officer present, refers to a group of Asian males, approximately 30 to 40 in number, who were shouting. He states:

"I spoke to a number of males in the main group and asked them to leave the reception area as they were causing a disturbance. They stated that they would leave if the play that was being performed in the studio theatre was stopped immediately."

He obtained the information that in the main auditorium approximately 600 school children aged 6 to 12 were in the audience and they had had their exit diverted during the interval so as to keep them away from any unpleasant scenes. Outside the Theatre, following the removal of the protesters from inside, Inspector Phillips refers to the group "pushing and shoving and were becoming verbally abusive to officers present. ... I could see that members of the public near these venues were becoming distressed at the group's behaviour. I then verbally issued a dispersal notice to the group under section 30(4) ... The group remained in an agitated and vociferous state."

13. Sergeant Pritchard refers to the initial stage of the police presence on that occasion and how discussions "reached a point of impasse when I asked a number of people present: 'What is your objective?' Their replies were in every case 'to prevent the production continuing'."
14. The evidence of how the police officers came to resort to the use of statutory dispersal directions is to be found in the witness statement of Chief Superintendent Goodman. It seems that he had a telephone conversation with Inspector Phillips, the former being in the police station and the latter, as I have indicated, being at the Theatre. The Chief Superintendent says that Inspector Phillips gave him details of the nature of the disorder:

"... and I discussed with him the most appropriate tactics."

He then lists the options that he considered with Inspector Phillips. They were: (1) arresting individuals for breach of the peace, if they had committed a breach of the peace or if one was imminent; (2) arresting individuals for breaches of section 5 of the Public Order Act 1986 or for other offences if matters escalated; (3) asking people to disperse under section 30(4) of the 2003 Act, having regard to the fact that an authorisation notice was already in force for the area; (4) using powers under section 14 of the Public Order Act 1986 to place conditions on the assembly; (5) doing nothing, thereby allowing members of the public to be intimidated and distressed by the actions of a few of the protesters. He then recounts his reasoning which resulted in the resort to section 30(4). He states that he was particularly keen that individuals should not be arrested for breach of the peace or Public Order Act offences if at all possible. His aim was to prevent or minimise disorder over a sensitive issue. He was at pains to ensure that the police were acting and were seen to be acting impartially and sensitively; that the situation was delicate, volatile and difficult, and he was concerned to balance the legitimate rights of the community to protest peacefully against the rights of the Theatre to stage the play and the overarching need to protect the safety of the public. He adds:

"It was ... clear from the information I had that members of the public and the theatregoers (particularly the children) were likely to become alarmed or distressed by the actions of the protesters. The use of the powers under section 30 ... was considered to be proportionate action. Further, it was the least intrusive [of the] options available to us."

He added that he considered the option of arrest to be substantially more intrusive. Moreover, he considered section 30 to be more appropriate than powers under section 14 of the Public Order Act, which could affect all the protesters throughout the duration of the play being held at the Theatre.

15. That summary of the factual background is taken principally from the police log and the witness statements of police witnesses and Ms Jones. I acknowledge that the claimant and his witnesses describe the occasion as being less disorderly and that a police video of part of the unfolding events is inconclusive; indeed it is not inconsistent with either perspective. However, this is an application for judicial review, and Mr Pievsky on behalf of the claimant rightly accepts that, in the absence of oral testimony and cross-examination, this court is not in a position to resolve conflicts of evidence and that we cannot discount the defence evidence.
16. Against that factual background I now turn to the grounds of challenge.

(1) Dispersal Directions and Protest

17. This ground of challenge raises an important and fundamental point. Mr Pievsky submits that the dispersal direction was unlawful in principle because it was directed towards protesters exercising their rights to free expression. It was accordingly beyond the reach of section 30(3) because, in the words of his skeleton argument, "the power set out in that subsection simply does not extend to dispersing protests." At this stage it is necessary to set out the provisions of section 30(3) and (4). They provide as follows:

"(3) Subsection (4) applies if a constable in uniform has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in any public place in the relevant locality has resulted, or is likely to result, in any members of the public being intimidated, harassed, alarmed or distressed.

(4) The constable may give one or more of the following directions, namely--

(a) a direction requiring the persons in the group to disperse (either immediately or by such time as he may specify and in such way as he may specify),

...

(c) a direction prohibiting any of those persons whose place of residence is not within the relevant locality from returning to the relevant locality or any part of the relevant locality for such period (not exceeding 24 hours) from the giving of the direction as he may specify."

18. In support of his submission Mr Pievsky makes the following points. First, it was never the purpose of the Act to affect protests and demonstrations. In Home Office circular 004/2004 it is stated at paragraph 3:

"The aim of these powers is to prevent people from feeling threatened and discouraged from using public spaces because they feel threatened by groups of young people hanging around."

19. Secondly, section 30 is expressed in general terms without reference to specific types of "groups". In these circumstances the general language should be construed consistently with fundamental civil liberties unless a contrary intention is expressly stated. In R v Home Secretary ex parte Simms [2000] 2 AC 115, Lord Hoffmann said (at page 131):

"The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."

20. Thirdly, in order to be satisfied that Parliament has impliedly authorised something which might involve a breach of fundamental rights, the court must be satisfied that such implication is "compellingly clear": see R (Morgan Grenfell) v Special Commissioners of Income Tax [2003] 1 AC 563 and, as a recent example concerning a different aspect of section 30, R (W) Commissioner of Police for the Metropolis [2005] EWHC 156 Admin.
21. Fourthly, the court should be slow to conclude that Parliament intended to create a general power to disperse protesters when the threshold is pitched as low as alarm or distress on the part of one or two members of the public. It is important to keep in mind the words of Sedley LJ in Redmond-Bate v Director of Public Prosecutions, 23rd July 1999, transcript page 20:

"Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having."

It is noteworthy that the power to impose conditions on public assemblies under section 14 of the Public Order Act has more demanding criteria, the reference being to "serious public disorder, damage to property, disruption" and so on.

22. Fifthly, it is also important to have regard to the other powers which police officers have at their disposal for policing protests. They can impose conditions on a public assembly, dealing with the location, duration and size of the gathering so as to prevent serious disorder, damage, disruption or intimidation. They can use their powers of arrest in relation to suspected offences under the Public Order Act or other offences. They have common law powers to preserve the peace. The totality of their existing powers reflects a careful compromise between freedom and the risk of serious disorder, whereas to apply section 30 to protests tips the balance too far.
23. Sixthly, although the preceding five points are made on the basis of domestic law, the same approach is required by the European Convention on Human Rights and Fundamental Freedoms: see Stankov v Bulgaria, case 29221/95, 2nd January 2002 at paragraph 97, where the European Court of Human Rights stated:

"Freedom of assembly and the right to express one's views through it are among the paramount values of a democratic society. The essence of democracy is its capacity to resolve problems through open debate. Sweeping measures of a preventive nature to suppress freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles - however shocking and unacceptable certain views or words used may appear to the authorities, and however illegitimate the demands made may be - do a disservice to democracy and often even endanger it."

On this basis, and applying section 3 of the Human Rights Act 1998, section 30 of the 2003 Act should be interpreted as not applying to protests.

24. These are formidable submissions. However, in my judgment, they are defeated by contrary arguments advanced by Miss Leek on behalf of the Chief Constable, which are reflected in what I am about to say. Section 30 does not expressly exclude protests. On the contrary, their inclusion is a matter of necessary implication in the Morgan Grenfell sense because Parliament clearly had the relationship with civil liberties in mind. It specifically excluded from section 30(4) lawful conduct under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 and, more significantly, processions of the kind covered by section 11(1) of the Public Order Act. It also amended the definition of "public assembly" in section 16 of the Public Order Act by reducing the numerical criterion from 20 to 2. I consider that all this gives the very clear indication that it did not intend to exclude protests. If it had so intended, it would have made express provision, as it did for processions. The intended exceptions are specific and narrowly defined. In my judgment the position is "convincingly clear" here in a way in which it was not in Morgan Grenfell or W. Moreover, I do not consider that it can properly be said that in a Simms sense section 30 "overrides fundamental rights". It does not affect them at all in the absence of reasonable grounds for believing that the presence or behaviour of the group has resulted or is likely to result in any members of the public being intimidated, harassed, alarmed or distressed. Mr Pievsky's submission that these are weak criteria because intimidation and harassment are not qualified by a word such as "serious", and the alarm or distress of one or two possibly hyper-sensitive bystanders is an inappropriately low threshold. The use of a dispersal direction, which I accept may interfere with fundamental rights, still falls to be justified by the test of proportionality and other public law criteria. In this way section 30 is limited not only by its own express requirements; its use is controlled by, among other things, the European Convention on Human Rights. Far from "overriding fundamental freedoms", its use is subject to them. In my judgment section 30 can be applied to protests. This conclusion also has the advantage of obviating the need to determine on a case-by-case basis whether or not a particular gathering of two or more people is properly characterised as "a protest".

(2) Proportionality

25. Given that the issue of dispersal directions in the context of a protest is not inherently unlawful, the next question is whether in this case it constituted a wrongful interference with the claimant's rights under the ECHR. Miss Leek concedes that Article 9 - freedom of thought, conscience and religion - and Article 10 - freedom of expression - were engaged. She makes no such concession in relation to Article 11 - the right to freedom of peaceful assembly and association - because there is an issue as to whether the assembly was in fact peaceful. However, the reality is that, if she succeeds in establishing justification in relation to Article 9 and Article 10, this ground of challenge must fail. I do not understand Mr Pievsky to disagree with that proposition.
26. Articles 9 and 10 are in the following form. Article 9:

"(1). Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in worship, teaching, practice and observance.

(2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights or freedoms of others."

Article 10:

"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national society, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

27. There can be no doubt that the interference with the claimant's rights under Articles 9 and 10 was "prescribed by law": the police officers were acting pursuant to section 30 of the 2003 Act. Equally they were pursuing a legitimate aim, namely the prevention of crime and disorder, the protecting of public safety and the protection of the rights and freedoms of others, in particular the audiences in the Theatre, the Theatre staff and those concerned to bring about the public performance of the play. The issue is whether the interference was "necessary in a democratic society". This involves striking a balance between the conflicting interests of the protesters and others.
28. In approaching this issue of proportionality, it is important to keep certain things in mind. First, freedom of expression is a particularly important human right. This is emphasised by section 12 of the Human Rights Act and is acknowledged repeatedly in the Strasbourg and domestic authorities: see, for example, Steel v United Kingdom (1998) 28 EHRR 603 and Reynolds v Times newspapers [2001] 2 AC 127 at page 200E, per Lord Nicholls of Birkenhead. Secondly, and following from all that, it must be shown that a decision-maker has asked himself the correct questions, and in particular has asked whether the same legitimate aim could not be achieved by less intrusive measures: see R (SB) v Headteacher and Governors of Denbeigh School [2005] EWCA Civ 199. Thirdly, the task of police officers on the ground is a very difficult one. In R (Laporte) v Chief Constable of Gloucestershire Constabulary [2005] QB 678; [2004] EWCA Civ 1639, Lord Woolf CJ said:

"While the authorities must be prepared to have their actions scrutinised to ensure that they are proportionate and reasonable and in accordance with the law, it is equally important that, subject to any action taken to comply with these requirements, the authorities are not prevented from taking action and that the required action is in fact taken by the authorities to prevent disturbances happening. Otherwise, the conduct of those intent on creating unlawful disturbances can undermine the ability of others lawfully to exercise their rights, including their rights under articles 10 and 11 to protest."

The approach of the court was most helpfully described by Tugendhat J in Austin and Saxby v Commissioner of Police for the Metropolis [2005] EWHC 480. He said this at paragraph 166:

"The court must allow for the fact that it may be very difficult for the police to identify the target or predict the scale of violent disorder.

...

I conclude that the court should accord a high degree of respect for the police officers' appreciation of the risks of what the members of the crowd might have done if not contained. At the same time the court should subject to a very close scrutiny the practical effect which derogating measures have on individual human rights, the importance of the rights affected, and the robustness of any safeguards intended to minimise the impact of derogating members on individual human rights."

Fourthly, although these and other authorities assist in demonstrating the correct approach, ultimately all these cases are fact-sensitive.

29. In the present case, Mr Pievsky submits that the officers did not ask the right questions and in particular did not properly consider whether the situation could be dealt with in a less intrusive way, for example by confining the protest to an area outside but close to the Theatre.
30. I am unpersuaded by this submission. The evidence points cogently in the other direction. The witness statement of Chief Superintendent Goodman demonstrates how he and Inspector Phillips discussed the range of options and chose to proceed as they did precisely because they believed - and in my judgment reasonably believed - that it was the least intrusive option. The interference was relatively slight: it lasted no more than 24 hours within the designated area and did not apply at all outside that area. It was in a sense a holding operation pending the completion of the review which the officers were about to undertake when they were called to the Theatre on the afternoon of 16th December. It involved no deprivation of liberty unless the directions were disobeyed. On the other hand, the situation which confronted them was a difficult one in the light of events of the previous 24 hours. Mr Pievsky initially sought to exclude consideration of what happened on 15th December, but in my judgment that approach is wrong. Whether or not the composition of the group was the same on both days - a point to which I shall have to return in relation to the fourth ground of challenge - for the purposes of section 30 it was the same group. As the authorities show, sometimes proper preventative action "will only be possible if action is taken which risks affecting wholly innocent individuals": per Lord Woolf CJ in Laporte at paragraph 14. Also, by section 30(7) Inspector Phillips was entitled to consider the presence or behaviour of "any one or more of the persons in the group". It was also an important factor that several hundred children would soon be emerging from the main auditorium. I am satisfied that the totality of the material in the possession of the police amply justified the issuing of the dispersal directions. In this regard, Miss Leek rightly points to the evidence of threats that had been made to the Theatre staff, including threats to kill, the fact that a protester had kicked a poster and another had set off a fire alarm, the refusal to move away voluntarily, the stated objective of some to prevent the play from being performed and the willingness to do "whatever it took" to force their way into the Theatre, the evidence of alarm and distress to Theatre staff and the fact of the composition of the audiences in the two auditoria, particularly the children in the main auditorium.
31. Again I repeat that I accept that some of the protesters, including the claimant, wished the activities of the group to remain peaceful. However, the evidence in support of the justification for issuing the direction is extremely cogent. In my judgment this ground of challenge is unsustainable.

(3) The Authorisation

32. It is common ground that the authorisation signed by Chief Superintendent Goodman on 19th November in relation to the period 26th November to 4th January was a lawful authorisation under section 30(1). What Mr Pievsky seeks to challenge is the use of an authorisation which was brought into existence for one purpose - the control of anti-social behaviour manifested by over-exuberant revellers in the run up to and around the festive season - for a totally different purpose - namely, the control of protesters whose presence in the designated area had not been contemplated at the time when the authorisation was signed. He submits that the statutory machinery contemplates the identification of a specific problem, namely persistent and significant anti-social behaviour of a particular kind. It must be specified and subjected to consultation with the local authority. When the authorisation is in place, the police officers on the ground can only use it for the specified purpose.
33. On 16th December, when Chief Superintendent Goodman and Inspector Phillips were discussing the range of options at their disposal, it was no more than adventitious that the authorisation was in existence. However, I do not accept that it was unlawful for them to have resort to it. If public disorder is a continuing problem in a town centre or a part of one, it would be absurd if the police were to have to procure a separate authorisation to deal with each successive manifestation or source of disorder, perhaps giving rise to numerous authorisations with temporal overlaps. I find that to be unnecessary and undesirable. It is an important safeguard that there can be no authorisation at all unless the demanding requirements of section 30(1) are met. Once they are, there is no reason why an authorisation should not be used in relation to a previously unforeseen group, subject to the further important safeguards that a dispersal direction can only be given if section 30(3) is satisfied and its use is proportionate and otherwise in conformity with public law criteria.

(4) Irrationality

34. The fourth ground of challenge is put on conventional public law grounds. In his skeleton Mr Pievsky expressed it in this way:

"It was irrational in this case to conclude, simply on the basis of one request from the Theatre's management, that harassment, alarm or distress had been or would be caused by the presence of the protesting group on 16th December."

Put that way, the submission contains the seeds of its own rejection. The fact is that the decision was not taken "simply on the basis of one request from the Theatre's management". It was taken on the basis of all the material to which I have previously referred in the factual narrative at the beginning of this judgment and when dealing with proportionality.

35. In his oral submissions, Mr Pievsky puts it in a different way. He says that it was unreasonable or wrong for the police officers on 16th December to take into consideration the events of 15th December; that the key word in section 30(3) and (4) is "group", and that it was impermissible for the police to equate the "group" present on 16th December with the "group" which had assembled 24 hours earlier. I do not accept this analysis. The group in question comprised an uncertain number of people whose collective identity was defined by a common purpose, namely public opposition to the performance of the play that was offensive to them. Such a group may have a fluctuating membership which may vary from hour to hour and day to day but it does not thereby lose its identity or homogeneity.

Conclusion

36. It follows from what I have said that, in my judgment, none of the four grounds of challenge has succeeded, and this application for judicial review fails. I add two postscripts. The first is that on the night of 18th December (two nights after the last events with which this case is concerned) the protest ended in scenes of serious disorder and the production run of Behzti was brought to a sudden end. That is irrelevant to what we have to consider, and I mention it in case anyone with an imperfect recollection of these well-publicised events might otherwise have thought that our concern has been with that denouement. Secondly, I would like to pay tribute to both counsel for their careful, concise and helpful submissions, both written and oral.
37. MR JUSTICE PENRY-DAVEY: I agree with my Lord's approach and the conclusions he has reached. I add only a few words. First, the assertion that section 30, unless construed to exclude protest groups, restricts or negates the right to lawful protest, in my judgment, involves a misconception. Properly construed, this section does not threaten any fundamental right. Its implementation is subject to clear safeguards and, in my judgment, there is no threat either to the right to protest or any other fundamental right.
38. In relation to Mr Pievsky's further submission on the authorisation, he suggests that in this case that could only be lawful because of the "significant and persistent" anti-social behaviour identified in the locality, described as "an increasing amount of anti-social behaviour and violent incidents associated with both alcohol and the volume of individuals, increasing during the run up to Christmas, condensed into a small area". Without such significance or persistence he submits there would have been no question of a valid dispersal order being made. But, he adds, as there was no rational connection between the target of the dispersal authorisation on one hand (that is, groups responsible for persistent and significant drink-fuelled anti-social behaviour) and, in the event, the target of the dispersal order (which he categorises as the group of protesters) he suggests that the wording of the Act leads to the conclusion that the type of anti-social behaviour in respect of which a dispersal order is made must be that same type of behaviour which founded the original authorisation. There was, he submits, no connection in this case between the two, and, that being so, the order to disperse was ultra vires the authorisation and therefore ultra vires section 30. Otherwise, he submits, the fundamental right to lawful protest is limited or rendered ineffective.
39. Taken to its logical conclusion, if in the event the nature of the anti-social behaviour that actually occurred was different from the type of anti-social behaviour which founded the authorisation, it would be necessary for the police either to do nothing or to seek further authorisation and then to consider under subsection (3) what direction, if any, was appropriate. In my judgment that places an unnecessary burden on the police in a situation in which urgent action may be necessary and it is not in any event what the Act provides. The words of subsection (3) enable a constable in uniform to give one or more of the directions in subsection (4), including a dispersal order, "if a constable in uniform has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in any public place in the relevant locality has resulted, or is likely to result, in any members of the public being intimidated, harassed, alarmed or distressed". It may well be necessary to consider whether the constable had reasonable grounds for his belief within subsection (3), but if the direction under subsection (4) properly followed from such belief, then in my judgment the fact that the behaviour was of a different type or arose for different reasons from those which founded the authorisation would not make the direction unlawful. I agree with the conclusions which my Lord has reached.
40. MISS LEEK: Might I just have a couple of moments to take instructions?
41. LORD JUSTICE MAURICE KAY: Yes, certainly. Do you want us to rise?
42. MISS LEEK: Just for a moment, yes.
(The court adjourned for a short time.)
43. MISS LEEK: My Lord, it simply remains for me to apply for costs in this case.
44. LORD JUSTICE MAURICE KAY: Yes. We will see what Mr Pievsky has to say.
45. MR PIEVSKY: My Lord, very briefly; of course costs are in the discretion of the court. This is a case which your Lordship has described as raising an important question, and in my submission it is one that is in the public interest. There was no authority about the scope of dispersement orders. The claimant's challenge has clearly failed, but it was not brought primarily out of a motive for personal gain; it was simply to challenge the principle it was lawful to disperse a protesting group. The court has in the past exercised its discretion under part 44 not to make an order for costs in a case where there is a public interest in many cases - some of them are very well known - (inaudible), Kebeline, cases of that sort. I have a more recent authority, if you want, the Challenger case. The issues were quite different, but in effect the judge was persuaded that it simply was not appropriate because the issue was important and it was good that the court had had the opportunity to rule on it. My client is a 19-year-old student and is publicly funded. In my submission this is a similar case in which the normal principle that costs should follow the event should not be followed, and I submit that the appropriate order is 'no order as to costs'.
46. LORD JUSTICE MAURICE KAY: Thank you very much.
(The Bench conferred.)
47. LORD JUSTICE MAURICE KAY: We make the order but on the usual terms that apply to publicly funded parties. I can never remember what the actual words are. (Pause.) The associate tells me that my old experience has remained useful and that the current order is also 'costs but not to be enforced without the leave of the court'.
48. MR PIEVSKY: My Lord, I am very grateful. Unless there is anything else, then I would like to ask for permission to appeal. I had a discussion with my learned friend earlier today about whether the correct route would be to the Court of Appeal or to the House of Lords raising the issue of whether this in fact was a criminal or civil causal matter. Of course if it was a direct challenge to a caution then it would be a criminal matter, but as we have all agreed that everything turned on the civil order, that is the dispersal order, then that is analogous to the normal ASBO-type order, which has been held in McCann(?) to be a civil causal matter.
49. LORD JUSTICE MAURICE KAY: I was part of the court at first instance in Gillan, which is in some ways similar, and that was treated as a civil case.
50. MR PIEVSKY: My Lord, we had both agreed that the right route, if an appeal is to be brought, is to the Court of Appeal; and so I do make that application now, and I will just be very brief.
51. LORD JUSTICE MAURICE KAY: Four grounds; or are you going to be selective?
52. MR PIEVSKY: My Lord, I would ask for the first three grounds only. I would not seek at this point to rerun the reasonableness point, the irrationality point. But my Lord identified an important and fundamental point; and you dealt with it of course very clearly - and the judgment is very clear. But having regard to the authorities I would submit there is a real prospect that the Court of Appeal could come to a different view on the precise issue of in what circumstances an exception is carved out in the statute, that a wider exception is not to be presumed as a result of the impact of fundamental human rights. That is my submission on the first issue.
53. On the other two; very briefly, the proportionality question is very much a factual analysis, but the analysis is of course one for the court. The facts having been stated so clearly by your Lordship, it would be a relatively simple question for the Court of Appeal whether it thinks that the actual dispersal, not the removal from the Theatre but the real focus is the dispersal from outside the Theatre, was in all the circumstances the least restrictive means. In my submission there is a real prospect that the Court of Appeal would take a different view from that identified by your Lordships today.
54. Finally, there is the authorisation point, a more technical point, but I would submit that if permission to appeal is to be granted at all, then it would be useful for the Court of Appeal to look also at this point about whether the structure of the legislation really is that an authorisation can be given for any purpose and then can be applied to any target so that the rather odd result is that a particular group can be dispersed depending on the persistent or significant activities of a totally different type of group. So those would be my submissions on leave to appeal.
55. LORD JUSTICE MAURICE KAY: Okay, thank you.
(The Bench conferred.)
56. LORD JUSTICE MAURICE KAY: Miss Leek, ground 4 does not arise, and my Lord and I am are not impressed with the suggestion about proportionality: we think that should stop here. What about the other two grounds - the fundamental point and the authorisation?
57. MISS LEEK: My Lord, in relation to the first point, for the reasons that I explained yesterday, there is no basis whatsoever to imply into this Act an exclusion of protest groups. There is nothing that I can add to what I have said and I underline the reasoning that you have given. In my submission there is no prospect of success in the Court of Appeal on that basis. Likewise in relation to the authorisation point. It would make practical policing absolutely impossible. For those reasons, the reasons you have given, I would submit that the matter should stop here.
58. LORD JUSTICE MAURICE KAY: Thank you.
(The Bench conferred.)

Leave to Appeal

59. LORD JUSTICE MAURICE KAY: We have already said in the judgment that we think that the first point was an important point, but we take the view that the claimant would have no real prospect of success in the Court of Appeal; likewise on the second point; and we have already made our position clear on proportionality. So we propose to refuse permission to appeal, but of course you will be able to apply to the Court of Appeal if you wish.
60. MR PIEVSKY: My Lord, I am grateful.