High Court of Justice in Northern Ireland Queen's Bench Division Decisions

CAMC2176 IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION (CROWN SIDE)

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IN THE MATTER OF AN APPLICATION BY GARY JONES

FOR JUDICIAL REVIEW

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CAMPBELL J

Gary Jones who lives at 66 Parkhead Crescent, Newry, County Down, brings this application for leave to apply for judicial review of a decision made by the Royal Ulster Constabulary under Article 4(1) of the Public Order (Northern Ireland) Order 1987 in relation to a public procession organised by the Orange Order which is due to take place on 12 July 1996 along the Camlough Road, Newry, County Down, and in particular between the estates of Carnaget and Derrybeg.

On the hearing of the application the court has had the advantage of hearing Mr O'Rourke, of counsel, who appears on behalf of the applicant and also Mr McCloskey, of counsel, who appears on behalf of the proposed respondent. Mr McCloskey has made available to the court the notice of intention to organise a public procession which was lodged on 26 June 1996. It appears from this notice that fifty people with a band intend to process on 12 July 1996 from Altnaveigh Orange Hall via Chancellor's Road Carnagat Road, the new bypass, Camlough Road, Monagahan Street, Merchant Quay, Sugar Island, Trevor Hill, and Downshire Road to the Orange Hall. The procession is to leave at 8 am and to disperse at 9 am.

In the affidavit which he has lodged in support of his application under Order 53 Rule 2, Mr Jones has stated that his home is situated in the Carnaget Estate opposite Derrybeg Estate and directly off the Camlough Road. He states that he has lived there for a period of 5 years and that it is an area which is almost exclusively inhabited by Roman Catholics and/or Nationalists. He is a married man with two children and although he bring this application in a private capacity, he is Chairperson of the Carnaget and Area Community Association and he claims that it is in this capacity that he is familiar with the feelings and wishes of the residents within the Carnaget/Derrybeg area.

As a result of communications between his solicitor and the Royal Ulster Constabulary he has stated that he learned that it was proposed to permit an Orange parade to pass along the Camlough Road between Derrybeg Estate and Carnaget Estate on the morning of 12 July, and his solicitor made representations on his behalf indicating his objection to this parade.

The grounds of his objections are stated to be -

(i) In the past processions along this route have led to a serious disruption to the life of the community. In order to avoid serious public disorder the RUC have had to cordon off the two housing estates adjoining the Camlough Road. This has led to a curfew of the residents of the two housing estates and a total restriction in their enjoyment of the amenities of life. In the past and in particular, last year, there was violent disruption at this location, missiles were thrown at protesters to the procession. He states that he is aware and has informed the police that a number of residents intend to protest this year if the procession is allowed to proceed and this will probably lead to further public disorder and disruption to the residents of the two housing estates.

(ii) Given the widespread public disorder which occurred at the Ormeau Road, in Belfast, Portadown and County Armagh and many other Orange parades it would be safe, he states, to conclude that in all probability there will be serious public disorder if this procession is allowed to proceed.

In his affidavit Mr Jones goes on to suggest that there is now a more convenient route for the parade, namely along the Newry bypass. He states that this is unpopulated area of roadway whereby no objection would be taken by residents, no public disorder would be likely to take place and no other person would be intimidated by the procession.

He confirms his belief in the right of those who wish to participate in the procession on Friday 12 July, to march, and he states that he has no objection to them doing so, but that there is now a well-known alternative route which could be used. It is his suggestion that the police have failed to consider all of the matters which he has referred to and which they are bound to consider.

When a person proposes to organise a public procession he must give written notice of that proposal under Article 3 of the Public Order (Northern Ireland) Order 1987 (the "1987 Order") such as the notice as has been given in this case.

Where such a notice has been given, if a senior police officer having regard to the time or place at which and the circumstances in which the public procession is to be held or is intended to be held and to its route or proposed route, reasonably believes that -

"(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community; or

(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have right to do, or to do an act they have a right not to do,

he may give directions imposing on the persons organising or taking part in the procession such conditions as appear to him necessary to prevent such disorder, damage, disruption or intimidation, including conditions as to the route of the procession or prohibiting it from entering any place specified in the directions." (Article 4(1))

It is to be noted that the Royal Ulster Constabulary do not give permission for a procession to take place but a senior police officer has a discretion to impose such conditions as appear to him necessary.

Judicial review, as the title indicates, is designed to ensure that those who are required to make decisions have done so within the true limits of their powers. It is not an appeal and it is not for this court to substitute its views for those of the person whom Parliament has decided is best fitted to make the decision. As Lord Diplock said in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064 -

"The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred".

This court will only intervene where the person exercising the administrative discretion has failed to take into account matters which he or she ought to have taken into account or taken into account matters which they ought to have disregarded. The court will also intervene when the decision is shown to be irrational or as is it is more frequently described a decision which is unreasonable in the "Wednesbury" sense (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223). This means a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. see Lord Diplock in GCHQ [1985] AC 374 at 410.

The first step in an application is to apply for the leave of the court which is required before a full application may be made. An applicant must show that he has sufficient interest in the matter to which the application relates and in my view, as a resident of Carnaget estate, Mr Jones has fulfilled this requirement. He must apply promptly and although this application may appear to be late as the procession is to take place in two days time, it is important to remember that the police can exercise their powers under Article 4 at any stage, even during a procession, and therefore by waiting until now Mr Jones has given every opportunity for directions to be given. Lastly Mr Jones must show that he has a case sufficiently arguable to merit investigation at a substantive hearing. Leave should only be granted if on the material then available the court thinks, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant. In R v Secretary of State for the Home Department ex parte Rukshanda Begum [1990] COD the Court of Appeal held that the test to be applied in deciding whether to grant leave to move for judicial review is whether the judge is satisfied that there is a case fit for further investigation at a full inter partes hearing of a substantive application for judicial review.

In this case the first remedy sought is certiorari and in my judgment the failure of the police to impose conditions on a procession under Article 4 would not entitle the court to make such an order. An alternative remedy which is sought is mandamus. For this remedy to be granted there has to be a failure on the part of an authority to perform a duty which is placed upon it. In the present case the duty cast on the police is for a Senior Police Officer to consider the matter and if he reasonably believes that the procession may result in serious public disorder, serious damage to property or serious disruption to the life of the community to give directions. Mr Jones, through his solicitor Mr Mallon, placed his objections before Inspector McLean on 3 July 1996. Mr Jones states in his affidavit that "In the past processions along this route have led to a serious disruption to the life of the community. In order to avoid serious public disorder the RUC have had to cordon off the two housing estates adjoining Camlough Road. This has led to a curfew of the residents of the two housing estates and a total restriction in their enjoyment of the amenities of life.." It appears that while there may have been disruption of life of the community, which is always regrettable though not uncommon in this community, serious public disorder has been avoided. This procession of fifty people and a band is to travel from Altnaveigh to Downshire Road in Newry within the period of an hour. It begins at 8 am and the time it will spend passing in the vicinity of Mr Jones's estate must be short. Since the police had before them each of Mr Jones's grounds for objections and the information about the size of the procession and of its duration I can see no ground upon which it can be said that this is a matter which requires further investigation in a substantive hearing for judicial review. Therefore I refuse leave to make an application for judicial review.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION (CROWN SIDE)

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IN THE MATTER OF AN APPLICATION BY GARY JONES

FOR JUDICIAL REVIEW

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JUDGMENT

OF

CAMPBELL J

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