Singh, R (on the application of) v Chief Constable of West Midlands Police

This appeal arises from the enactment of the Anti-social Behaviour Act 2003 (“the Act“) which gave new powers to the police to deal with anti-social behaviour. In this case the West Midlands police force relied upon the provisions of section 30 of the Act to order the dispersal of a group of protesters which included the Appellant. He refused to obey. He was arrested and accepted a police caution. He seeks to challenge the legal validity of the dispersal order (and hence the caution) having failed before the Divisional Court (Maurice Kay LJ and Penry-Davey J) which on 4 November 2005 dismissed his application for judicial review.

The Birmingham Repertory Theatre is situated in Centenary Square adjacent to the main entertainment area of Birmingham City Centre. It comprises a main auditorium and a studio theatre access to both of which is from the main foyer. In about October 2004 members of the Sikh community learnt of the theatre company’s decision to mount a production in the studio theatre of Behzti a play to which they took great exception. They considered it grossly offensive to their religion and their religious beliefs. The word “Behzti” means dishonour and the play was set in a Gurdwara or Sikh temple. A Sikh priest was shown committing sexual acts in the temple. Having sought legal advice the local police informed leaders of the community that the production of the play was not unlawful. Theatre staff met with members of the Sikh community and invited them to attend the dress rehearsal in an attempt to put their minds at rest. Sadly, there could be no middle ground. According to the Respondent’s witnesses the Sikh community wanted the play altered in a way which was unacceptable to the management or the play taken off. The management insisted upon their right to stage the play.

On Thursday 9th December 2004 security officers at the theatre informed the police that threats had been made and daily protests were expected. That evening there were said to be 6-7 Sikh males at the theatre. At that time the protests were peaceful. Leaflets were handed out and perfectly proper attempts made to persuade people that the play was inaccurate, sensational and offensive to Sikhs. The play opened on 10th December and over the ensuing weekend the theatre management were in regular contact with the police.

On 15th December theatre staff notified the police that they had been threatened by protesters who “have said that they will do whatever it takes to break their way in tonight”. At 7.07 pm Katrina Jones the theatre manager informed the police that about 25 Sikh protesters had threatened to kill the doormen. 50 or so protesters forced their way into the premises waving banners and chanting. Ms Jones requested immediate police assistance. After considerable negotiation the protesters were persuaded to leave peacefully.

The next day, Thursday the 16th December, Chief Superintendent Goodman arranged a meeting of theatre managers, Sikh community leaders and senior police officers. His aim was to facilitate a new dialogue between the theatre and community leaders. He states that the Sikh leaders asked the police to stop the play on the grounds that it was likely to incite racial hatred. Chief Superintendent Goodman explained that there were no grounds to stop the play continuing and that the purpose of the meeting was to find a peaceful way forward, acceptable to all concerned.

The theatre manager expressed her concern at what she described as the ‘huge escalation’ in the protest the previous evening. The Sikh leaders warned that the numbers of protesters were likely to increase. One informed the meeting that there may be ‘hotheads’ protesting who may ‘get into the production’ and stated that he did not ‘think the police can control it’.

At the end of the meeting the Sikh leaders agreed to consider whether they could work with the police to make arrangements for a peaceful protest, one possibility being, for example, the erection of cordons outside the theatre behind which the protesters could protest lawfully. In light of the discussions, another senior officer, Superintendent Bullas, set about reviewing an appropriate policing response. Chief Superintendent Goodman was anxious to avoid arresting any protester for fear of aggravating the situation and resulting in increased racial tension and unrest.

However, as Ms Barton who appeared in this court on behalf of the Respondent Chief Constable observed, his review was overtaken by events. At 3.08 pm. on 16^th December the police were notified that, not satisfied with protesting outside the theatre, approximately 20-30 protesters were trying to get into the theatre. There were approximately 400 people inside the theatre including what Ms Jones described as “elderly Asian women” watching the Behzti play. There was also a large number of children attending a matinee of Roald Dahl’s “The Witches” in the main theatre. This, in itself, was a matter of real concern for the management. Police assistance was again requested. A number of officers attended the scene. By the time they arrived the protesters had gained access to the building. About 30 protesters had surrounded Ms Jones asking her “Who can take the play off?” They insisted “It’s got to stop”. Ms Jones and police officers tried to reason with the protesters. It became clear that for some of them at least their objective was a simple one: it was to close the play down. Officers tried to explain that they could only protest lawfully. One protestor shouted and kicked a plastic poster box. Another set off the fire alarm.

At about 3.40 pm Inspector Phillips arrived at the scene. He was aware of the threats that had been made the previous day. He saw 30- 40 protesters inside the building with police and security staff. There was a stand off. The protesters had been asked to leave but had refused. Inspector Philips spoke to some of them. Ms Jones informed him that she was trying to keep the Behzti audience and the children’s show audience away from the protesters to avoid their witnessing unpleasant scenes.

Inspector Phillips noticed people outside the theatre looking concerned about what was happening. Ms Jones told him of her concern about customers in the restaurant and bar situated behind the protesters. Some members of the Behtzi audience left because of the situation. Ms Jones asked Inspector Phillips to eject the protesters. Inspector Phillips decided he would use what he thought were his powers to order the protesters to disperse, if necessary. He discussed the options with his senior officer, Chief Superintendent Goodman, on the telephone. They considered doing nothing, or arresting those who refused to leave for breach of the peace or under section 5 of the Public Order Act 1986 and also using their powers under section 14 of the same Act to impose conditions on the assembly. The “do nothing” option was rejected on the basis that it would have allowed “members of the public to be intimidated and distressed by the actions of a few protesters”. Ms Carss-Frisk Q.C., who appeared before us on behalf of the Appellant, argues that the officers were wrong to reject the options of monitoring the situation and/or of arresting, if necessary, those who committed specific criminal offences. She argues it was disproportionate and unnecessary to order the whole group of protesters to disperse.

Inspector Phillips shared his senior officer’s concern that arresting one or two individuals might lead to an escalation of the disorder. They both considered, therefore, utilising an authorisation notice which was already in force for this area, and to which I shall return, to order the group to disperse. They both believed that asking the crowd to disperse would be the least intrusive method of dealing with the situation and would give the individuals concerned the opportunity to leave peacefully.

Chief Superintendent Goodman described it in this way: he was concerned, he said, to “prevent or minimise disorder over a sensitive issue at a festive time of year in a high profile situation”. The situation was delicate, volatile and difficult and he had to balance the legitimate rights of the community to protest peacefully, the rights of the theatre to stage the play and the overarching need to protect the public. He was at pains to ensure that the police were acting and were seen to be acting impartially and sensitively. In any event dispersal directions would be effective for at most 24 hours under the Act.

At approximately 4.13 pm Inspector Phillips informed the group of males that they were to leave the building as they were causing a breach of the peace. Some refused and had to be escorted forcibly off the premises. According to the officers at the scene, the atmosphere became hostile. Outside the building the protesters were shouting and chanting, pushing and shoving and becoming verbally abusive to police officers. The police tried to form a human barrier to prevent re-entry to the theatre. Inspector Phillips waited to see if the crowd dispersed. It did not.

However, at approximately 4.25 pm Inspector Phillips decided if he was to avoid arresting the protesters he had no option but to issue a verbal dispersal direction to the group under section 30(4) of the Act. At that time he said he was faced and surrounded by a number of loud and agitated males. He felt vulnerable and was concerned for members of the public nearby. Although several people left, many of the group remained in what was described as an agitated and vociferous state. A PC Phillips noted that some of them showed signs of what he called impending violence. As he put it “Their voices were raised, eyebrows lowered and they were making threats.”

Outside the theatre in Centenary Square PC Phillips approached the Appellant, who was one of the protesters who had been removed from inside the theatre and remained outside. He gave the Appellant a copy of the authorisation notice containing a map. PC Phillips asked the Appellant for his details but he refused to give them. He gave no reason for refusing to co-operate with the police. PC Phillips told him to leave the area. According to the officer but denied by the Appellant, he replied, ‘I’m not going anywhere, I’m waiting for my fucking brother’. PC Phillips told him that he was under arrest for failing to comply with a section 30 dispersal notice. At the police station, rather than aggravate the situation by charging a protester with a criminal offence, Chief Superintendent Goodman authorised a police caution. Although he signed the record of caution admitting to the offence, the Appellant says he believed he could later have it removed because he had done nothing wrong.

Inspector Phillips remained at the scene as order was restored with just one other protester arrested. He still hoped to create a cordoned off area outside the theatre in which others could protest in a “more organised and peaceful manner”.

Although not relevant to this appeal, I note in passing that matters sadly took a turn for the worse two days later. On the 18th December protesters broke down a barrier erected to contain them, smashed one of the doors of the theatre and a window in the bar area of the foyer. They stormed the theatre injuring police officers in the process. A number of individuals sustained head injuries.

At the heart of this litigation there is a dispute as to whether or not the Appellant was engaged in a peaceful protest. The Appellant insists that not only he but also his co- protesters behaved in a proper and orderly fashion. He maintains the police acted disproportionately and unnecessarily harshly.

Ms Carss- Frisk, however, accepts that the Appellant has chosen to proceed by way of Judicial Review and has thereby deprived the Respondent of the opportunity of challenging the Appellant’s factual account. We are not, therefore, in the position to resolve any conflicts of evidence and the court must consider the evidence “in the round” as she put it, which evidence includes the witness statements which I have attempted to summarise served on behalf of the Respondent, a witness statement from the Appellant which presents a very different picture of the protest and a police video recording of the protest as it took place inside the theatre and the dispersal of the protesters thereafter. We have watched that recording as we were invited to do. I shall return to it when I deal with the question of the proportionality of the decision to order the protesters in this case to disperse.

I turn now to the relevant provisions of the Act. Prior to its enactment the police had a range of statutory and common law powers available to them to control the behaviour of groups of people which threatened public order, including protests by way of processions, assemblies and in the course of trade union disputes. However, these powers were considered insufficient to deal with the growing problem of anti-social behaviour, defined in section 36 of the Act, insofar as relevant, as behaviour which causes or is likely to cause harassment, alarm or distress to one or more people. In summary, the parts of the Act with which we are concerned provide the police with powers to disperse groups of people in prescribed circumstances.

First and foremost, what the Act calls “an authorisation” must be in place. If, and only if, a senior police officer has reasonable grounds for believing that any members of the public have been intimidated, harassed, alarmed or distressed in a particular public area as a result of the presence or behaviour of groups of 2 or more people and that anti-social behaviour is a significant and persistent problem in that area, the officer may give an authorisation. He must first obtain the consent of the local authority. If that is forthcoming, the authorisation must be in writing, it must be signed and it must specify the relevant locality, the grounds upon which it is given and the period during which the powers conferred by section 30 (3) – to (6), namely the power to issue dispersal or other analogous directions and take young people home, may be exercised. The period cannot exceed 6 months and proper publicity must be given in the locality to the authorisation notice. The notice itself does not need to specify the grounds upon which the authorisation was made.

Two authorisations had been given in this case, both by Chief Superintendent Goodman. The first was dated the 19th November and was to run from 1900 hours on 26th November 2004 until 06.00 hours on Tuesday 4th January 2005. It related to the area around Broad Street, opposite which, across Centenary Square, the Birmingham Repertory Company is based. It is a densely populated area with hotels, public houses, clubs and restaurants. In the build up to Christmas it becomes not surprisingly very busy.

The grounds specified in the authorisation notice were that “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”. The relevant locality specified in the written authorisation was delineated on a map attached to it: it included Centenary Square, i.e. the area outside the theatre.

A second authorisation was also in force at the time with which we are concerned which, overlapped geographically and temporally with the other notice. The grounds specified related to the menace of skate boarders on the busy streets of the City centre.

No point is taken on the appellant’s behalf about the lawfulness of the statutory regime in general or the making of the authorisations in particular.

It was common ground that the first authorisation was targeted at “seasonal revellers who might resort to anti-social behaviour in the Broad Street area”. Chief Superintendent Goodman did not have in mind protests of any kind.

Mr Pievsky, who appeared alone on behalf of the appellant below, identified both before the Divisional Court and in his skeleton argument attached to the Appellant’s Notice four bases upon which he sought to challenge the validity of the order to disperse:

the interpretation point,

the proportionality point,

the authorisation point; and

the reasonableness point.

It is necessary before turning to the detail of counsel’s submissions to rehearse the provisions of Section 30 in its entirety. Under the heading “Dispersal of groups and removal of persons under 16 to their place of residence”, it provides:

This section applies where a relevant officer has reasonable grounds for believing -

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 (“the relevant locality”), and

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

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.

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

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;

A direction under subsection (4) may not be given in respect of a group of persons-

If, between the hours of 9 pm and 6 am, a constable in uniform finds a person in any public place in the relevant locality who he has reasonable grounds for believing-

is under the age of 16, and

is not under the effective control of a parent or responsible person aged 18 or over,

In this section any reference to the presence or behaviour of a group of persons is to be read as including a reference to the presence or behaviour of any one or more of the persons in the group.

Ms Carss- Frisk particularly drew our attention to section 31, which makes provision for the content of the authorisation and the authorisation notice, for the publicity which must be given to the authorisation notice and for withdrawal of any authorisation. It also states at sub section (9) as follows:

may be given orally,

may be given to any person individually or to two or more persons together, and

may be withdrawn or varied by the person who gave it.

a fine not exceeding level 4 on the standard scale, or

imprisonment for a term not exceeding 3 months,

Also relevant to this appeal are certain other provisions of the Public Order Act 1986. Section 11(1) provides:

Written notice shall be given in accordance with this section of any proposal to hold a public procession intended –

to demonstrate support for or opposition to the views or actions of any person or body of persons,

to publicise a cause or campaign, or

to mark or commemorate an event,

Section 12 empowers a senior police officer to impose conditions on a public procession before or during a procession, which he reasonably believes may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or the purpose of which is to intimidate others with a view to compelling them not to do an act which they have a right to do or to do an act they have a right not to do.

Section 13 enables a chief police officer to apply to a local authority for a ban on a procession for a maximum of 3 months if he reasonably believes that the procession will result in serious public disorder in a particular area.

Section 14 empowers a senior police officer to impose conditions on public assemblies, before or during an assembly, which he reasonably believes may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or the purpose of which is to intimidate others with a view to compelling them not to do an act which they have a right to do or to do an act they have a right not to do.

Ms Barton also invited us to note the provisions of sections 4A and 5, which create offences of intentionally causing harassment, alarm or distress by using threatening, abusive or insulting words or behaviour or disorderly behaviour or doing so within the hearing or sight of someone thereby likely to be caused harassment, alarm or distress.

Last but by no means least we have been referred to Articles 9, 10, and 11 of the European Convention on Human Rights (ECHR).

Everyone has the right to freedom of peaceful assembly and freedom of association with others including the right to form and to join trade unions for the protection of his interests.

Ms Carss-Frisk relied not surprisingly, very heavily upon the provisions of Articles 9, 10 and 11. She emphasised repeatedly, if emphasis was required, the importance attached by both domestic courts and the ECHR to the rights enshrined within them. The grounds for judicial review were summarized in this way:

Ms Barton takes exception to the repeated use of the words “peaceful” and “peacefully” to describe the protest and the protesters on 16^th December. In her submission, the evidence clearly establishes that the protest may have begun as a peaceful one, but by the time the dispersal directions were given it was no longer peaceful and had become a threat to public order.

With those general submissions in mind, I turn to the 3 grounds now advanced on the appellant’s behalf.

Both Maurice Kay LJ in the court below, and Tuckey LJ in granting permission to appeal, accepted that this first ground of challenge raises a point of fundamental importance namely: does section 30 apply to “protesters” exercising their rights to free expression at all? On the appellant’s behalf it is argued that section 30(3) was never intended to extend to “protesters” and does not in fact extend to dispersing groups of “protesters”.

There were two main limbs to Ms Carss-Frisk’s submissions on this point, which she described as different but closely related: namely:

We were reminded of the words of section 30 itself which I shall not repeat and of the contents of a Home Office circular 004/2004 which at paragraph 3 states:

Rather belatedly counsel also sought to put before us statements made by Baroness Scotland, the sponsoring Government Minister in the House of Lords, during the debates on the Anti-social Behaviour Bill. Ms Carss-Frisk urged us to find that the words of the section are ambiguous, and that, pursuant to the principles in Pepper v Hart [1993] AC 593, we should bear those statements in mind. They are said to indicate that the stated intention behind the legislation was that section 14 of the Public Order Act 1986, as in effect amended, and not section 30 of the Anti-social Behaviour Act, should be available to the police to deal with small groups of “intimidatory” protesters. Although Ms Barton argued that the words of the section were clear and there was no need to resort to the words used in the debate, she had no objection to our being referred to the passages in question and our considering them de bene esse. But it was far from clear to me, following my reading of the statements of Baroness Scotland, whether the stated intention was as Ms Carss-Frisk argued and whether we could derive any assistance from the passages put before us.

Ms Carss-Frisk argued, without dissent from Ms Barton or the court, that the principle of legality involves a strong presumption, which the executive must dislodge, that Parliament does not intend to interfere with the fundamental rights of individuals, unless, by its provision, it expressly says so or necessarily implies as much. Relevant to this issue are, amongst others, the observations of Lord Hoffmann in R v Home Secretary ex parte Simms [2000] 2 AC 115at 131 where he said:

In this case the words of section 30 are said by Ms Carss-Frisk to be both general and ambiguous. There is no express provision covering protests. Yet the section provides for powers which involve a substantial encroachment upon the rights of individuals. Given the importance of what has been described elsewhere as the “principal” right to freedom of expression in a democratic society, Parliament, it was said, cannot have intended the powers to cover protests where, as is the case here, there is no evidence of actual violence or the commission of a criminal offence. If Parliament inadvertently provided for the dispersal of protests in these circumstances it failed squarely to confront what it was doing or to accept the political cost.

For the court to be satisfied that Parliament has impliedly authorised conduct which might breach an individual’s fundamental human rights, such implication must be “compellingly clear”. We were reminded of the observations of members of their Lordships’ House to this effect in R (Morgan Grenfell) v Special Commissioners of Income Tax [2003] 1 AC 563. Thus, where a fundamental right is alleged to have been infringed (in that case legal professional privilege) it was for the body wishing to assert the infringement to show that the legislature had expressly or by necessary implication overridden that right. In Morgan Grenfell the House of Lords held that it was for the Inland Revenue to show that it was entitled to demand “documents” subject to legal professional privilege and this it had failed to do, legal professional privilege being a fundamental human right that could be overridden only by express words or necessary implication. Similarly here, the right to freedom of expression is a fundamental human right and the burden is on the Respondent to show that the “groups” so broadly described in section 30 includes protesters exercising their right to freedom of expression.

Parliament (said Ms Carss-Frisk) could have expressly excluded or included what were described as “static protests.” Yet it did neither. Under subsection (5) it expressly excluded lawful picketing and lawful processions, but it did not expressly include this kind of protest. Ms Carrs-Frisk suggested that this was because there was no pressing social need to do so. Parliament’s intent was at best “equivocal” (as was the lack of express protection for privileged documents in the Morgan Grenfell case).

Ms Carss-Frisk took issue with the argument which found favour with in the Divisional Court to the effect that, by specifically excluding in subsection (5) lawful trade union disputes and properly notified public “processions” from the dispersal powers, Parliament had clearly impliedly included static protests of this kind. She submitted that the exclusion of processions from the dispersal provisions was simply because there were specific existing provisions which deal with the preconditions necessary for controlling processions and which satisfy the necessary test of proportionality, namely sections 11, 12 and 13 of the Public Order Act 1986; and that, although all protests were excluded from section 30, Parliament, necessarily or otherwise, chose to make it doubly clear in the case of ambulant protests, viz. processions, that such were excluded.

There are (said counsel) no corresponding sections under the Public Order Act (and indeed no other similar statutory provisions), in relation to static protests and there was no need, therefore, for Parliament expressly to confirm that section 30 dispersals could not apply to that type of protest. The issue of any arguable conflict, however misconceived, with existing legislation simply did not arise in this context.

Further, the Court should be slow to infer that Parliament intended to create a general power to disperse a protest when the statutory threshold to issue dispersal directions is pitched as low as the causing of “alarm” or “distress” to perhaps only one or at least only two people, who may react unreasonably to legitimate protest and for whose reaction perhaps only one or at least only two members of the group may have been responsible. We were referred in particular to the comments of Sedley LJ in Redmond Bate v DPP (1999) 7 BHRC 375 at 381-2:

If protests in general are covered by section 30, with its “low threshold”, conduct which is merely offensive and irritating may become subject to these powers simply because one or two people are distressed by them. A group of protesters should not be dispersed on the ground that perhaps only one or at least only two members of the public are distressed or alarmed. This cannot amount to a “pressing social need” justifying interference with the right to freedom of expression. At a public protest, people are likely to communicate their ideas vocally and in strong terms, and by its very nature a protest is reasonably likely to be “intimidating”, at any rate to some. Yet this alone could not sensibly justify terminating such protests.

Further, it is said to be noteworthy that the power to impose conditions on a protest under section 14 of the Public Order Act 1986 requires a more demanding set of criteria, namely the reasonable apprehension of serious public disorder (or, I note, the reasonable belief that the purpose of the assembly is to intimidate others with a view to compelling them not to do an act they have a right to do or to do an act they have a right not to do). Ms Carss-Frisk argued that it would be very strange for Parliament to have intended to allow protests to be dispersed, arguably a more restrictive measure than to impose conditions upon it, where ostensibly a less demanding set of criteria are satisfied.

In the context of subsection (7) of section 30 and the fact that a group may be ordered to disperse because of the behaviour of one or more persons in the group, we were referred to the decision of the ECHR in Ezelin v France (1992) 14 EHRR 362 which it was said demonstrated the concern of the European Court that the free speech of protesters should not be curtailed simply because of the unlawful behaviour of one or two individuals. At para 53, the Court held that the freedom to take part in a peaceful assembly “is of such importance that it cannot be restricted in any way …. so long as the person concerned does not himself commit any reprehensible act on such an occasion”.

Ms Carss-Frisk argued it is disproportionate to order an entire assembly to disperse simply because of the behaviour of one or two of them. If a protester in the appellant’s position is forced to disperse, his fundamental rights are adversely affected and his exercise of them has been hindered; and that is sufficient to bring the principle of legality into play. Parliament could not so have intended and has not expressly or by necessary implication so provided.

Counsel maintained that the Divisional Court’s judgment, if allowed to stand, would lead to an absurd and unworkable result. Given the express exclusion of notified public processions in section 30(5) (b) from the dispersal direction provisions, the police will be acting unlawfully if they purport to disperse a procession, a moving protest, but not if they disperse a static protest (i.e. an assembly). There is no basis for thinking that static protests are less important, or involve a lesser engagement with human rights, than moving protests. Indeed, it was argued, if anything the reverse is true: almost all moving processions come to a halt at some point before disbanding. It is often at the very point that the procession stops moving, and becomes an assembly (in order, e.g., to be addressed by a leader or to deliver the protesters’ message to its intended recipients) that the interest in freedom of expression becomes most intense.

If the appellant’s construction of section 30 is correct, the police (it is said) are far from powerless. They can impose conditions on a public assembly in relation to 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 for suspected offences under the Public Order Act or other offences. They have common law powers to preserve the peace. These existing powers taken together, (so it was submitted) reflect a careful compromise between freedom and the risk of serious disorder. To apply section 30 to protests would tip the balance too far.

Finally on the interpretation point reliance was placed on decisions of the European Court which have repeatedly emphasised the importance of freedom of expression and assembly. In particular we were referred to the judgment of that Court in Stankov v Bulgaria, case 29221/95, 2nd January 2001, at paragraph 97, where it was stated:

Ms Carss-Frisk submitted that a review of the European jurisprudence establishes that even sporadic disorder is not enough to entitle a public authority to ban a protest under the Convention. There needs to be serious violence in order to justify the banning or dispersal of a public protest.

The right to protest becomes effectively worthless if the protesters’ choice of “when and where” to protest is not respected as far as possible: see Stankov at paragraph 109. Here the protest against the play was location-specific (the theatre) and time-specific (the run of the play.). A protest should only be moved and limited where it is strictly impossible, having regard to the rights of others, to respect the protesters’ wishes to the contrary.

Ms Carss-Frisk dealt next with the third point, the authorisation point. The issue, conveniently summarised by the Divisional Court, was whether on the proper construction of section 30 the authorisation which was in place, targeted squarely at what the Court described as “seasonal revellers”, could properly be used by the police to tackle the very different problem of protesting groups. There was no suggestion that the behaviour of protesting groups had previously been identified as a “significant and persistent problem” in the relevant locality, which was the trigger under section 30(1) for the making of each of the authorisations; neither was targeted at protesters of any kind.

Thus, Ms Carss-Frisk observed, it was no more than a coincidence that an authorisation happened to be in place to deal with seasonal revellers at the time when the police considered exercising their powers to control the protest on 16^th December 2004. In the absence of a lawful section 30(1) authorisation, it is not in dispute that a section 30(4) dispersal direction could never have been made in this case. The argument, therefore, is as follows (quoting from the skeleton argument): “it could not have been Parliament’s intention that whether one type of activity should be the subject of ASBA dispersals should depend upon the adventitious statutory identification (following consultation and publicity) of a totally different type of problematic activity”.

The Divisional Court disagreed. It held that it would be absurd to suggest that the police had to go back and get a second or third authorisation, with the effect that there could be numerous authorisations in place in one locality. However, Ms Carss-Frisk submitted that this reasoning does not meet the objection that in principle the power to disperse a group carrying out a particular activity should not depend on a coincidence or an irrelevance.

She reminded us that the provisions of section 31(9) indicate that Parliament clearly envisaged the co-existence of different authorisations in respect of the same locality. Indeed, in the instant case there were two authorisations in place in the relevant locality, relating to two different types of activity: (a) seasonal revellers, and (b) skateboarders. This strongly suggests that the Respondent understood section 30 as requiring it to obtain activity-specific authorisations, or at least that, once it chose to obtain (or could only obtain local authority consent for) an activity-specific authorisation, it could not then use it against groups carrying out wholly different activities. The existence of the second authorisation in this case also shows that that approach, contrary to the reasoning of the Divisional Court, is neither unworkable nor absurd.

We were taken through the safeguards that Parliament specifically provided in sections 30 and 31, being safeguards to protect civil liberties (including the obtaining of the consent of the local authority, the duty to give reasons and the duty to publicise). The Appellant sought to persuade us that those safeguards become ineffective in practice if any group might lawfully be targeted once there is a single authorisation in place in the relevant locality. The clear theme of section 30 is that the anti-social behaviour at issue must be significant and persistent in order to justify dispersal of a group of persons who are not committing any crime.

We were reminded of the decision in Sierny v DPP [2006] EWHC 716 in which in the Divisional Court I and Nelson J held that an authorisation must specify, if only in summary form, the grounds upon which it is made. We said, in terms, that a mere statement that an officer had grounds for making an authorisation was not sufficient. We held that the words of section 31(1)(c) were clear. However, at para 23 of my judgment, having referred with approval to the contents of the authorisation in this present case (which had already been decided in the Divisional Court, by judgments which were in the public domain) I then referred to the fact that specification of the grounds “informs the reader, albeit in broad terms, of the nature of the problem and the mischief at which the authorisation is aimed”.

Nelson J added at para 28 that

Reliance was placed on those observations for support for the proposition that, in assessing the lawfulness of dispersal directions, the court should focus on the mischief at which it was aimed. Authorisations in this case were specifically justified by reference to seasonal revellers and skate-boarders. The local authority agreed on those grounds. They did not agree that protesters constituted a significant and persistent problem of anti-social behaviour. The Appellant agreed that, having procured the consent of the local authority on those specific grounds, the Respondent cannot now be heard to say that the authorisation had a wider reach and permits control of wholly different activities.

I turn, finally, to counsel’s submissions on the proportionality point, namely that the Divisional Court failed adequately to address the following questions: Was the decision to disperse the protest in this case necessary in a democratic society? Or, in other words, was it a proportionate decision, having regard to the rights of the protesters as well as the interests of the general community?

The Divisional Court found that the decision of the Respondent’s officers was proportionate. They had considered the range of options available, and opted for what they considered, and the Divisional Court agreed, was the least restrictive and intrusive option (i.e. dispersing the protest).

Having accepted that the court must acknowledge the difficult position in which police officers on the ground may find themselves, and that these particular officers may well have acted in good faith, Ms Carss-Frisk nevertheless submitted that this does not mean that the courts should rubber-stamp their operational decisions. Where such decisions result in an interference with fundamental rights, they must be subjected to close scrutiny. Justification for interference with freedom of expression must always be convincingly and objectively established by compelling countervailing considerations. In support of that proposition, again if support were needed, which for my part it was not, reliance was placed on the observations of Lord Nicholls in his speech in Reynolds v Times Newspapers [2001] 2 AC 127at page 200f.

In performing the task of deciding for ourselves whether it was necessary and proportionate to disperse the protesters on 16^th December, we were invited to consider the following two aspects of the decision that had to be made: the nature of the threat and the possible use of less restrictive means.

The Appellant sought to persuade us that all the facts identified by the Respondent related to events inside the theatre and did not satisfy the proportionality test of serious violence. There were fewer than 30 protesters, and about the same number of police, in attendance. The facts identified might justify surveillance, or the arrest of any individual who behaved unlawfully or who caused a breach of the peace. They did not justify the termination, by dispersal, of the protest.

Secondly, there is the crucial issue of less restrictive means. If the police were worried about the intimidation of people inside the theatre, Ms Carss-Frisk argued that their concern would have dissipated once the protesters were outside. No satisfactory explanation has been offered as to why the protest could not continue outside. The decision to direct dispersal had been made while the protesters remained inside the theatre even though the direction to disperse was not given until all were outside the theatre and it was not justified at that time. Dispersal was not the least restrictive measure. Its necessary consequence was the termination of the protest. Virtually any of the other measures open to the police (for example, targeted arrests of those responsible for trouble; continued monitoring; or imposing conditions) would have been less restrictive of the protesters’ rights to freedom of expression. The burden was on the Respondent to show convincingly why those less restrictive measures were not appropriate, and on the evidence this he had he failed to do.

I begin with a few general observations. I am acutely conscious of the impact of the production of this play on some members of the Sikh community. I do not in any way doubt or underestimate their sincerely and deeply held views. Those like the appellant who objected to the play were entitled to manifest their religious beliefs and to protest lawfully against the play to which they took such exception. Those are fundamental human rights and ones to which both the domestic and European Courts rightly attach very great importance.

However, with those rights come duties and responsibilities, primarily the duty to respect others’ rights. However deeply someone may feel about his religion or a particular cause, if he wishes wish to protest, he must do so peacefully and lawfully. He should not seek to intimidate others and impose upon them his way of thinking by unlawful means.

To my mind one of the flaws in the approach adopted by counsel on the Appellant’s behalf is that they have focussed almost exclusively on his rights and the rights of his fellow protesters. They have virtually ignored the rights of she who wrote and those who staged and wished to see this particular play, which, as I understand it, included fellow Sikhs. They too had the right to freedom of expression, just as the adults and children who were at or near the theatre that day had the right to go about their business without being subjected to scenes which were unnecessarily frightening, intimidating and distressing. In my view, with respect to those acting on the Appellant’s behalf, the arguments advanced by them have paid scant regard to the delicate balance that must be struck between the competing interests of all the parties concerned.

As important as they are, the rights enshrined in each of Articles 9, 10 and 11 are all qualified rights. Lord Woolf CJ observed in relation to rights under Articles 10(2) and 11(2)in R (Laporte) v Chief Constable of Gloucestershire[2005] QB 678 at para 36:

In this case, if the evidence of the police officers is to be accepted, I fear that some of the protesters, having failed by negotiation and peaceful protest to achieve their objective of having the play withdrawn, decided to create an unlawful disturbance inside and outside the theatre in a deliberate attempt to undermine the ability of others to exercise their rights.

Having said that, given the importance attached to the right to protest, I should emphasise that I accept unreservedly the argument that statutory powers which purport to encroach upon such fundamental rights must be subjected to close scrutiny. I followed many others in saying as much in Sierny, as Ms Carss- Frisk properly reminded me.

However, looking at the express language of the Act as a whole and section 30 in particular, in its context, it is compellingly clear to me that Parliament did intend that the dispersal regime under section 30 should apply to protests. In reaching that conclusion I have borne very much in mind the words of Lord Hobhouse in Morgan Grenfell at paragraph 45 to the following effect:

Applying what I hope is sound logic, first, I consider it noteworthy that there is no definition of “groups” within the provisions either of subsections (1) and (2) or of subsections (3)-(5) of section 30. Parliament did not, therefore, expressly exclude protesting groups from the authorisation provisions. Parliament did, however, expressly exclude some, but not all, protesting groups from the dispersal provisions in (3)-(5).

In my view, the only possible explanation for the exclusions in subsection (5) of public processions authorised under the Public Order Act 1986 and lawful trade union disputes under the Trade Union and Labour Relations (Consolidation) Act 1992 Act is that Parliament intended that section 30 should apply to some forms of protests. Protest by way of unlawful picketing is not excluded from the dispersal provisions and protest by way of most un-notified processions is not excluded.

I consider it highly significant that the exemptions are restricted to lawful protests of two narrowly defined kinds. I see considerable force in Ms Barton’s submissions that it is unthinkable that consideration was given to excluding most properly notified public processions within the meaning of section 11 of the 1986 Act from the dispersal provisions and not assemblies under section 14. As she submitted, Parliament has clearly decided to distinguish static protests of the kind we have here from processions over which the police would have some control and the impact of which on a local community would be transitory.

In my view, if Parliament could have excluded another category namely protests which take the form of un-notified processions or assemblies and plainly chose not to do so, there is no warrant in this case for the courts to step in and create the exclusion. As Ms Barton observed, if it had been Parliament’s intention to exclude protests, a clause to that effect not only could have been but I have no doubt would have been inserted in the Act.

I also consider it significant that Ms Carss-Frisk, despite her very carefully crafted and eloquently expressed submissions, could provide no definition of “protests” save for saying a protester is someone who is exercising their right to freedom of expression. As, my Lord, Wilson LJ, pointed out in the course of argument, this could cover a multitude of situations and produce an absurd and unworkable result. He gave as an example seasonal revellers, who have been drinking, are refused entry to a nightclub and decide to protest vociferously on the streets about their right to be admitted. If Ms Carss-Frisk’s construction of section 30 is correct they might argue that their behaviour, however intimidating members of the public found it, could not justify a dispersal direction, because they were merely exercising their freedom of expression by protest. Similarly, the result would be absurd if groups of people gathered on the streets of Birmingham in December 2004 behaving in the anti social way envisaged in the authorisation could not have been dispersed because some one had thought to advise them to mount a protest against the provisions of the Anti-social Behaviour Act or indeed the authorisation itself.

Further I am, with respect, not impressed by the argument that Parliament could not have intended to allow the dispersal of protesters by reference to what was described as a “low threshold” as compared to the threshold under sections 12, 13 and 14 of the Public Order Act. I find it to be entirely unsurprising that a higher threshold of serious public disorder is required for banning public processions under section 13. Banning processions is often the first step of a dictatorship. A ban on processions under section 13 can last for up to 3 months in any particular area. Such a ban amounts to a major interference with freedom of expression and requires substantial justification. That is no doubt why Parliament provided that only locally elected authorities and or the Secretary of State may authorise any ban.

In relation to the threshold for the imposition of conditions under sections 12 and 14, again I see considerable force in Ms Barton’s submissions. These are different powers. By section 14 the police may impose conditions, including in relation to the duration of an assembly, on the basis that something may happen, not that it has happened or even is likely to happen. It is, as Ms Barton observed, a lower risk test but there is a higher conduct test. The police may have powers to impose conditions where nothing has yet happened, but they may only do so where there are reasonable grounds for believing something serious may occur.

An officer may not use the dispersal powers under section 30 unless he or she has reasonable grounds for believing that any members of the public have been intimidated, harassed, alarmed or distressed or are likely to be. There is in this situation an urgency of a kind not dealt with in sections 12 and 14 of the Public Order Act. Accordingly, in my view, the powers under s.30 must be seen as complementary to the powers in the Public Order Act and they are not inconsistent with them.

Further, I do not consider the actual or likely intimidation or harassment of members of the public or causing them alarm or distress a low threshold as was suggested. An intimidatory purpose on the part of the organisers, I note, was considered by Parliament sufficient justification for the imposition of conditions on assemblies and processions in the Public Order Act. Threatening, abusive or insulting words or behaviour, where an individual possesses the necessary mens rea, is a criminal offence under section 4A of that Act. If, therefore, an individual is acting as a part of a group and members of that group behave in such a way that members of the public are or are likely to be intimidated, harassed, alarmed or distressed, I fail to see why the police should necessarily be forced to wait for them to be actually harmed or for serious disorder to erupt before they can step in and direct the group to disperse.

I do, however see considerable force in Ms Carss-Frisk’s submission that “alarm or distress” in some circumstances may not be sufficient to justify a dispersal direction. One or two particularly sensitive members of the public may be alarmed or distressed by conduct that would not or should not offend others. All of us who have the privilege of living in a free and democratic society must on occasions suffer some inconvenience caused by protests and protesters. Whether or not a group’s behaviour on any particular occasion warrants a dispersal direction will depend on the circumstances. Police officers must act proportionately and sensibly, as the officers claim they did here.

They cannot act on a whim. Both authorisations and dispersal directions must be properly justified on an objective basis. If used improperly or disproportionately they may be challenged. Articles 10 and 11 are there to protect the peaceful and lawful protest. The rights of the protester are not overridden. They remain protected under the law.

It follows that I do not accept that the powers under section 30 if lawfully used are as draconian as Ms Carss-Frisk suggested. They are limited both temporally and geographically. This is not a case of the authorities being empowered to prevent static protest generally or for any significant length of time. The authorisation may last a maximum of 6 months and the dispersal directions just 24 hours and then only if the circumstances fall with section 30(4)(c). Both may be withdrawn. The provisions apply to a narrowly defined locality. On the facts of this case, the protesters were able to protest before, during and after the 16^th December outside the theatre whilst the play was running. As long as the protest did not impinge upon the rights of others they would have been allowed to continue protesting. Even after they were directed to disperse, the protesters could have continued their protest elsewhere in the city just a few hundred yards away. They could have returned and did return to the theatre the very next day or the day after. That day Inspector Phillips was prepared to allow other protesters to gather in a cordoned off area and continue the protest in an organised and peaceful manner.

In other words, there is no sweeping power to force individuals to stop protesting and move on. Significant anti-social behaviour must have already become a persistent problem in the locality or there would be no authorisation in place. And, it is only when the behaviour of a group of people moves beyond legitimate protest and into the realms of behaviour that causes actual or likely intimidation, harassment, alarm and distress that an officer can use an authorisation to direct them to disperse. The peaceful member of the group who behaves in this fashion may have his rights infringed, but it is only for a relatively short time and it is for the greater good namely the protection of the rights of others.

For my part, I would distinguish the decision in Ezelin. First, in that case the court described the demonstration as “peaceful”. It had not been prohibited. If the police officers are correct on the facts of this case in their assessment of the situation, this protest was no longer peaceful. Acting as a group, these protesters forced their way into the theatre, refused to leave, they had to be forcibly ejected, they allegedly issued threats to those at the scene and refused to resume a peaceful protest outside the theatre. Members of the theatre staff were frightened and distressed. Other members of the public including hundreds of children were potentially affected. In my view, those are very different circumstances from the situation in Ezelin. It was on that basis that the group were directed to disperse and their assembly there in effect terminated.

Second, the European Court was not concerned, as here, with the interpretation of a law which specifically governs the behaviour of groups of people. The exercise of the powers under section 30 depends on the effect of conduct on members of the public by a group acting as a group. It does not depend on proving that any individual has behaved reprehensively. In Ezelin no such provision was in play and Mr Ezelin, having himself done nothing wrong, was disciplined as an individual for failing to disassociate himself from the actions of his fellow protesters.

Finally, in my view, one should not forget that in Ezelin, the Court was concerned with the rights of the applicant, an advocate, who wished to exercise his right to freedom of expression peacefully. He wished to protest about certain judgments of the courts and particular legislation. Here, the court is concerned with the rights not just of the appellant to freedom of expression but also with the rights of the play’s author and producers to freedom of expression, of members of the public to see the play and to go about their lawful business in the square without being intimidated, harassed, alarmed or distressed. To my mind, those too are very different considerations.

I do not accept that the fact the police had other powers available to them is relevant to this issue. In any given situation a police officer may well have a choice of which power of a number of powers to use. It will often be a difficult decision and may, as here, involve a delicate balancing exercise. For my part, if the facts were as the Respondent’s witnesses describe them, I can well understand why the police officers concerned were anxious not to arrest otherwise law-abiding citizens intent on making their sincerely held views known. With acknowledged “hotheads” on the scene, the arrest of any one of the protesters might well have triggered a real escalation in disorder and racial tension either at the theatre or elsewhere.

In summary, therefore, I reject the argument that the words of section 30 are ambiguous and I do not consider it necessary to have recourse to the words of the sponsoring minister in parliamentary debate. I am satisfied that Parliament intended section 30 to cover protests. I do not accept that section 30 needs to be read down so as to be compatible with a protester’s fundamental human rights. I am satisfied that allowing a dispersal direction to cover protests of this kind is prescribed by law in that the action taken was pursuant to section 30 of the Anti-social Behaviour Act. I am also satisfied that the use of these powers has a legitimate aim: namely the prevention of crime and disorder, the protection of public safety and the protection of the rights and freedoms of others. It is necessary in a democratic society and constitutes the right balance between the rights of protesters to express their opinions and the rights of others to be protected from unnecessary and distressing conduct.

I confess I had more difficulty with the authorisation point.

In Sierny the point was not argued and the court was not invited to distinguish the decision of the Divisional Court in this case. It is true to say that Nelson J and I were concerned to ensure that an authorisation was properly drawn and I referred to the mischief at which an authorisation is aimed when made. It is also true to say that Nelson J may have appeared to go rather further in suggesting that the grounds specified in the authorisation would inform the constable on the street of the circumstances when the authorisation might be used. However, I do not accept that Nelson J thereby intended to hold that an authorisation could only be used for the purposes of dispersing groups engaged in the kind of anti-social behaviour specified in it. He said nothing about the contrary decision of the Divisional Court in this case, which had been drawn to our attention. If I am wrong, and that was his intention, it was plainly obiter.

The decision in Sierny was based fairly and squarely on the words of section 31 (1) (c) (ii). The Act says in clear terms that the authorisation must specify …the grounds on which the authorisation is given. It is a mandatory requirement. I remain firmly of the view that “must specify the grounds” means more than a recitation that the officer has grounds. Some specificity is required, albeit in relatively summary form.

Here, it is common ground that the authorisations were valid. I ask myself therefore, if, as here, an authorisation has been validly made within the terms of the Act, whether it may be used to empower police officers to issue dispersal directions to a group of people acting in an anti social manner of a kind not contemplated at the time the authorisation was made. My concluded view is that it does for the following reasons.

There is no suggestion in the Act that a police officer may only issue dispersal directions if he has reasonable grounds for believing that a group of people is responsible for anti-social behaviour of a kind similar to that which formed the basis for the authorisation. Had Parliament intended to limit the use of dispersal directions to anti social behaviour of the kind specified in the authorisation, it could and no doubt would have said so.

On a strict reading of the section, the power to direct a group to disperse under subsection (4) does not relate back in any way to the kind of behaviour referred to in the authorisation or to the kind of groups addressed when the authorisation was made. I also note that under subsection (6) an authorisation may be relied upon to remove a child to his place of residence if an officer has reasonable grounds for believing that the child is under 16 and not under the effective control of a parent or responsible adult. There is no suggestion there that these powers are only exercisable if there is some relationship between the kind of anti-social behaviour of the groups specified in the grounds for the authorisation and the child’s being out of control. If an authorisation is in place for a locality, then it may be relied upon to remove a child. Similarly, in my view if an authorisation is in place for one locality it may be used for any anti-social behaviour in that locality which meets the statutory criteria set out in subsections (3) and (5). Although the powers given to the police in subsections (3)-(6) are dependent upon the existence of an authorisation for a particular locality, in my view they are otherwise intended to be and are freestanding provisions.

The logical consequence of the Appellant’s argument, as Ms Carss-Frisk conceded, is that if a senior officer decides to give an authorisation under section 30 to cover anti social behaviour on the part of, say, school children drinking alcohol and behaving badly on a particular street corner, and if on a subsequent occasion a group of older people behave in exactly the same way and with the same effect, the police would have to seek another authorisation. That would create an unworkable result and one Parliament cannot have intended. As Maurice Kay LJ observed in the court below, “if public disorder is a continuing problem in a town centre …, 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….”.

I appreciate, of course, that in the present situation the anti-social behaviour is of a very different kind from that in Chief Superintendent Goodman’s mind at the time he gave the relevant authorisation, but to my mind that is beside the point. The fact is that on 16th December there was a valid authorisation in force and the provisions of the section applied. The section is aimed at anti-social behaviour and protecting the public. I cannot accept that police officers, faced with a volatile and threatening situation as, they say, was the case on the 16^th December 2004, would have been entitled to disperse drunken revellers who behaved in an anti social fashion but not this particular group of protesters who were behaving in a potentially more alarming anti-social fashion.

I also do not consider it relevant that another authorisation was in force at the same time for this locality. At the time these authorisations were given, senior police officers up and down the country were feeling their way through the potential minefield of this legislation. The fact that Chief Superintendent Goodman decided to put a partially overlapping authorisation in place to cover skateboarders cannot affect the position in law of the other authorisation. I have no doubt that Parliament expressly provided for more than one authorisation to be in place at any one time so as to provide some degree of flexibility.

I turn, finally, to the proportionality of this particular dispersal direction. Acting on the basis of the evidence put before us by the Respondent, as I must, I respectfully agree with the observations of Maurice Kay LJ that, even if the Appellant’s intentions were entirely peaceful, what happened on the 16^th was not as innocuous as he claimed.

I do not intend to rehearse the evidence to any greater extent than I have already done in this judgment. Suffice it to say, I have carefully scrutinised the basis for the decision to direct the protesters to disperse. In my view, given the intelligence the police had received and the events of the 15^th as well as the 16^th, their decision was proportionate and justified. I am satisfied that Inspector Phillips (and his superior officer Chief Superintendent Goodman) had reasonable grounds for believing that the behaviour of the protesters had resulted in, and was likely to result in, members of the public being intimidated, harassed, alarmed or distressed. As Ms Barton pointed out, threats had been made to theatre staff, including threats to kill; one protester had kicked a poster; and another had set off a fire alarm. The protesters were not moving voluntarily. The stated objective of some was to stop performance of the play. The protesters had said that they would do whatever it took to break their way in. Their presence had already caused alarm and distress to theatre staff. One, in tears, described what happened as “the most frightening experience of my life”. The audience in the adjacent auditorium was made up mainly of parents and children. For my part, I cannot accept the description of those events as “a peaceful protest.”

I am also satisfied that ordering this particular group of protesters to disperse was the least restrictive, least intrusive and least inflammatory way of dealing with the situation. The decision to issue a dispersal direction was plainly an operational one made (as Miss Carss-Frisk accepts) in good faith and in the midst of a disturbance in order to prevent violence. The officers were at great pains to ensure that they took a measured, sensitive and proportionate approach. There is nothing to suggest that they had any intention of preventing a lawful and peaceful protest. But they rightly had every intention of preventing unlawful disorder. No direction to disperse was made until after they had reasonable grounds for believing that intimidation, harassment, alarm or distress had resulted and that more was likely to result.

The police were confronted by an intractable problem: on the one hand there were the entrenched (I do not use the word pejoratively) views of the theatre management and on the other the entrenched views of some members of the Sikh community. The management was determined, as was their right, to exercise their freedom of expression and stage the play and some members of the Sikh community were as determined to stop them from doing so. Peaceful protest failed to have the desired effect and so the protest sadly moved up a gear. It went from causing some inconvenience and some disruption to people’s lives, which might be expected from any protest, to causing at least distress and alarm if not also intimidation. If the conduct of some of the protesters did in fact amount to intimidation of representatives of the theatre management and members of the Behzti audience, that was no doubt the intention of some of the so-called “hotheads” who were prepared to resort to such tactics if there was no other way to get the play taken off.

In any event, to the extent that the argument against the proportionality of this decision rests on the assertion that the protesters should have been allowed to continue their protest peacefully outside the theatre, this, to my mind, ignores the reality of this situation as presented to us by the Respondent’s witnesses. Their evidence shows that the dispersal direction was issued outside the theatre because of the situation outside the theatre. The police officers at the scene have described, in a way which we must accept, that the protesters were not prepared to continue their protest peacefully outside. The fact that many of the protesters had to be forcibly removed from the theatre despite a perfectly reasonable request to leave of their own accord did not bode well for the future of the protest either inside or out. The protesters may well have taken it into their heads to force their way back into the theatre or to escalate matters outside. Other measures were considered and rejected for good reason, in my view.

Further, as Ms Barton observed, pursuant to section 30(7), Inspector Phillips was entitled to consider the presence or behaviour of ‘any one or more of the persons in the group’ to be the presence or behaviour of the group. He was entitled to make the order if the conduct of the group as a whole, whether inside or outside the theatre, had caused or was likely to cause intimidation, harassment, alarm or distress. Here it was the conduct of the protesters as a group forcing their way into the theatre, refusing to leave when requested, issuing threats to those at the scene and refusing to resume their peaceful protest outside which created the volatile and sensitive situation which faced Inspector Phillips.

To my mind, the direction to disperse in these circumstances constituted less of an interference with the Appellant’s rights than an immediate arrest under the Public Order Act 1986. It involved no deprivation of liberty or other sanction unless the direction order was disobeyed. It was only the Appellant’s knowing contravention of the direction that rendered him liable to be arrested. Indeed, having watched the video-recording, it is clear to me that on the 16th December the use of these powers under section 30 had the desired effect. They worked well. The protesters gradually if reluctantly left the scene and more trouble was averted.

Further, as has already been pointed out elsewhere in this judgment, the dispersal direction applied to a narrow geographical location and for a limited period of time. There was nothing to prevent the protesters from continuing their protest outside the area covered by the notice or returning the following day.

Accordingly, I agree with Ms Barton that the second ground of appeal is unarguable.

For my part therefore I would refuse the renewed application for permission to appeal on ground two and dismiss the appeal on grounds one and three.

I have had the advantage or reading in drafts the judgments of Hallett and Wall LJJ. I agree with them, and for the reasons they give would refuse permission to appeal on ground two and dismiss the appeal on grounds 1 and 3.

I too, have had the advantage of reading Hallett LJ’s judgment in draft. I agree with it, and with the disposal she proposes. I would also like to pay tribute to the concise and compelling judgments of Maurice Kay LJ and Penry-Davey J in the Divisional Court [2005] EWHC 2840 (Admin) with which I am also in agreement.

Like Hallett LJ I am satisfied that, despite the importance and profundity of the challenge, there is no merit in the Appellant’s first ground of objection, helpfully identified as the “interpretation” point. The words of section 30 (3) of the Act “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” seem to me to apply aptly to the events both in the foyer of and outside the Birmingham Repertory Theatre on Thursday 16 December 2004, and, in my judgment, section 30 applies to protests and demonstrations during the course of which anti-social behaviour occurs.

In the Divisional Court, Maurice Kay LJ, like Hallett LJ, firstly identified the arguments advanced on the Appellant’s behalf. He described them as “formidable”. They were, however, in his judgment, defeated by the following: -

I cite this passage for three particular reasons. The first, of course, is because I agree with it, and because, in combination with Hallett LJ’s analysis, it provides, in my judgment, a compelling answer to the Appellant’s argument on the interpretation point.

Secondly, however, Maurice Kay LJ’s reference to W is a reference to the decision of the Divisional Court in R (W) v Commissioner of Police of the Metropolis and another[2005] EWHC 1586 (Admin), [2005] 1 WLR 3706 (hereinafter W), an authority on which the Appellant had relied in support of his argument that in order to be satisfied that Parliament had impliedly authorised something which might involve a breach of fundamental rights, the court had to be satisfied that such implication was “compellingly clear” in the Morgan Grenfell sense.

In W, the Divisional Court had accepted the argument that Parliament, in using the word “remove” in section 30(6) of the Act, could not have intended to provide the police with a coercive power to remove any child found in an area covered by an authorisation under the Act between certain hours. It reasoned that had Parliament intended to create such a power, it should have said so. The Divisional Court thus held that there was no relevant common law power to interfere with W’s right to walk the streets without interference from the police, and that section 30(6) of the Act did not create an express power to use force. To attribute such an intention to Parliament “would be to assume that it ignored this country’s international obligations to treat each child as an autonomous human being” - (see paragraph 30 of the judgment of the Court). The question, accordingly, was whether or not the power to use force existed by necessary implication in the sense identified by Lord Nicholls in B (A Minor) v DPP[2000] 2 AC 428 at 464 and by Lord Hobhouse in R (Morgan Grenfell Ltd) v Special Commissioner of Income Tax[2002] UKHL 21; [2003] 1 AC 563 at paragraph 45 (the passage cited by Hallett LJ at paragraph 81 of her judgment). The Divisional Court held that it did not.

On appeal, this court took a different view - see [2006] EWCA Civ 458. Firstly, it was of the opinion that section 30(6) of the Act had a dual purpose, namely both to prevent children from themselves participating in anti-social behaviour and to protect them from the anti-social behaviour of others within a dispersal area. Secondly, the word “remove” plainly carried with it a power to use reasonable force if necessary, thereby creating an express power. Thirdly, and for present purposes most importantly, this court took the view that the power given to the police by section 30(6) of the Act could not be arbitrarily exercised.

Basing itself on the decision of the House of Lords in R (Gillan and Another) v Commissioner of Police of the Metropolis[2006] 2 WLR 537, and Lord Bingham’s rejection of the argument relating to the principle of legality articulated in R v Secretary of State for the Home Department ex parte Simms[2000] 2 AC 115, 130, 131, this court cited a passage from Lord Bingham’s speech in the former case ([2006] 2 WLR 537 at 545G) in which he said that an examination of the statutory context showed that the authorisation and exercise of the powers given by section 44 to 46 of the Terrorism Act 2000 were very closely regulated: -

In W this court undertook a similar exercise in relation to the 2003 Act. It examined carefully the legislative constraints on the powers conferred by section 30 of the Act, and concluded that a constable exercising the power given by section 30(6) of the 2003 Act was not free to act arbitrarily. Indeed, he was not free to act for a purpose other than that for which the power was conferred.

This court thus held that the dual purpose for which the power was conferred (and identified in paragraph 124 above) was clear and largely uncontentious. It followed that section 30(6) did not confer an arbitrary power to remove children who were not involved in, nor at risk from exposure to, actual or imminently anticipated anti-social behaviour. It did not confer a power to remove children simply because they were in a designated dispersal area at night. Furthermore, the Secretary of State accepted that the discretionary power given by the section could only be used if, in the light of its purpose, it was reasonable to do so; and the Commissioner accepted that, to act reasonably, constables must have regard to circumstances such as how young the child was; how late at night it was; whether the child was vulnerable or in distress; the child's explanation for his or her conduct and presence in the area; and the nature of the actual or imminently anticipated anti-social behaviour.

In my judgment, these considerations, albeit relating to a different sub-section of section 30 of the Act, are material both to the interpretation point and to the authorisation point in the instant case. In the passage from the Divisional Court’s judgment in the instant case, which I have cited at paragraph 120 above, Maurice Kay LJ felt obliged to distinguish W on the basis that in construing section 30(3) of the Act, the position was “convincingly clear here in a way in which it was not in Morgan Grenfell or W”. In my judgment, although on the law as it stood on 4 November 2005 Maurice Kay LJ was plainly right to so to distinguish W, the decision of this court in that case reinforces his overall reasoning in rejecting the Appellant’s argument on the interpretation point. In my judgment, the legislative purpose of both section 30(3) and section 30(6) is “convincingly clear” in the same way and the decision of this court in W strongly reinforces the Divisional Court’s reasoning on the point in the instant case.

The third reason I have cited the passage from the Divisional Court’s judgment set out at paragraph 120 above is that, in my judgment, it contains the basis for the answer to the Appellant’s arguments on the “authorisation” point which, like Hallett LJ, I have found the most difficult aspect of this appeal. The difficulty can be shortly identified. As Maurice Kay LJ succinctly put it in paragraph 32 of his judgment in the Divisional Court, it is common ground that it was “no more than adventitious” that the authorisation was in existence on 16 December 2004.

It is, furthermore, plain that even if the police had anticipated anti-social behaviour on and following the first night of Behzti, the terms of section 30 of the Act would not have enabled them to obtain an authorisation in advance of the play being staged. For such an authorisation to be in place, the relevant officer has to have reasonable grounds for believing that any members of the public “have been intimidated, harassed, alarmed or distressed” (section 30(1)(a): emphasis supplied). A belief that performances of Behzti were likely to provoke anti-social behaviour would not have enabled the police to obtain an authorisation under the Act to prevent it.

The Appellant is, accordingly, entitled to submit that an authorisation which contemplated anti-social behaviour of a particular kind was invoked to control behaviour not only of a kind quite different from that specified in the authorisation itself, but of a kind which the police could not have obtained an authorisation to prevent.

Maurice Kay LJ trenchantly dismissed this argument in a paragraph. He said:

In my judgment, and whilst I agree with this paragraph, I was, on reading the papers, left with a sense of unease. Was it a sufficient answer in the instant case that the fortuitous existence of the powers under section 30 of the Act enabled the police to resolve the matter in a controlled and manifestly proportionate fashion? What, hypothetically and in principle, would be the position if the police were to use draconian powers granted to them by Parliament to control a situation which did not require the use of such powers and for which those powers were not enacted, but which happened, adventitiously, to fit the situation in question?

The key to the answer to these arguments is, in my judgment, contained in the passage which I have highlighted in the citation from Maurice Kay LJ’s judgment which I have set out in paragraph 132, and the point is emphasised by the decision of this court in W. It is that the powers given by section 30(4) of the Act are not arbitrary, and cannot be exercised arbitrarily. They can only be exercised in the circumstances identified in section 30(3). Furthermore, they must be exercised proportionately, and any improper exercise is open to challenge on public law grounds. In my judgment, these are sufficient safeguards, and enabled the police on 16 December 2004 lawfully to use the powers provided by section 30(4) of the Act notwithstanding; (a) the fact that the existence of the powers on that day was purely adventitious; and (b) that the police could not have obtained an authorisation under the Act to prevent anticipated future anti-social behaviour.

As to proportionality, I think I can do no better than to recite the evidence of Chief Superintendent Goodman, as recorded in paragraph 14 of the Divisional Court’s judgment and summarised in paragraph 12 of the judgment of Hallett LJ. The Divisional Court set it out in the following way: -

As evidence of proportionality, I regard that as highly impressive, and sufficient to render the Appellant’s position unarguable. Furthermore, I respectfully indorse the Divisional Court’s reliance (1) on the judgment of Lord Woolf CJ in R (Laporte) v Chief Constable of Gloucestershire Constabulary [2004] EWCA Civ 1639, [2005] QB 678, which I need not set out; and (2) on the approach of Tugendhat J in Austin and Saxby v Commissioner of Police for the Metropolis [2005] EWHC 480 at paragraph 166: -

In my judgment it is necessary in this context for any court hearing a case such as the present to keep its feet firmly on the ground, and to remind itself that it is doing so not only in the calm of the court room, but with the events in question being skilfully and quite properly presented by leading counsel in a manner designed to further the Appellant’s case.

Like Hallett LJ, therefore, I reach the very clear conclusion, having refused permission to appeal on ground two, that grounds one and three are without substance, and that, as a consequence, this appeal must be dismissed.