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Home > Vol 22, No 1 (2016) > Thirlaway

Chief Constable of Bedfordshire v Golding [2015] EWHC 1875 (QB)

Vicky Thirlaway [1]

Cite as Thirlaway, V., Case Comment: "Chief Constable of Bedfordshire v Golding [2015] EWHC 1875 (QB)", (2016) 22(1) EJoCLI.

Abstract

The Anti-Social Behaviour Crime and Policing Act 2014 makes provision for the grant of civil injunctions against persons who have engaged, or who threaten to engage, in anti-social behaviour. The relevant sections of the act came into force in March 2015, and were designed to replace the much maligned Anti-Social Behaviour Order. The legislation was clearly designed to target individuals and groups located within communities whose lifestyles and actions cause disruption and nuisance to others in the neighbourhood. The case of Chief Constable of Bedfordshire v Golding concerned an attempt to harness the legislation as a tool to control and curtail disruptive public political protest. The court was required to find a balance between the maintenance of order and the right to protest.

1. Facts

The Chief Constable of Bedfordshire police applied for a number of interim injunctions under the Anti-Social Behaviour Crime and Policing Act 2014 against the respondents Paul Golding and Jayda Fransen. The respondents are the leader and deputy leader of the political party "Britain First". There were a total of five injunctions sought prohibiting the respondents from:

• entering the town of Luton;
• entering any Mosque or Islamic centre anywhere in England and Wales without invitation;
• publishing, displaying or distributing any material likely to stir up racial hatred;
• using threatening, abusive or insulting words or behaviour causing harassment alarm and distress to any person
• carrying or displaying in Luton on Saturday 27^th June 2015 any banned or sign with the words "No more Mosques" or similar words or words to like effect.

The injunctions were sought for a period of a year but were intended to manage a march planned to take place on the 27^th June, the day following the hearing. The police had already utilised the powers conferred by s12 of the Public Order Act 1986 to impose conditions on the march.

Britain First had held a number of demonstrations in Luton prior to the application, and counsel for the Chief Constable made it clear that it was made as a direct result of their actions during one event held on the third of June, which included insulting Muslim members of the community. It was further argued that the party had undertaken "mosque invasions" in the town. Evidence was called stating that such conduct had caused harassment alarm and distress.

2. Held:

Justice Knowles granted four of the five interim injunctions sought, until a full hearing at a future date, although the time scales meant that in reality they were final in respect of the proposed march.

He was not prepared, however, to make the injunction preventing the respondents from entering the town of Luton. He gave four reasons.

Firstly, he highlighted the conditions that had already been imposed on the respondents under the Public Order Act which would act in conjunction with the injunctions that he did grant.

Secondly, he noted that an injunction against the respondents may have the unintended consequence their absence may have on the "proper conduct" of other marchers.

Thirdly, he noted that "to ban the leaders of a registered political party altogether from a town is a very considerable thing". (para 33) He also noted the possibility that if granted, such an injunction could result in a myriad of similar applications across the country which would have an impact on political activity.

Lastly, he noted that until the 3^rd June, the police had not felt it necessary to seek injunctive relief in addition to the existing s12 powers and that the events of that day were not sufficient to now require the exclusion of the respondents from the town.

3. Commentary

The judge made his distaste for Britain First's views regarding immigration and the Muslim community clear, noting that they have "no analysis of the contribution that immigrants, from the world over, have made to the United Kingdom, and can and will make in the future" (para 28). The injunctions granted arguably prohibit the party from conduct which would either constitute a criminal offence, or create a breach of the peace, but he was unwilling to grant an injunction which may have had the effect of preventing Britain First form airing their views in Luton at all. In ensuring that "legitimate" political activity is permitted, the decision confirms the importance of freedom of speech that does not flout the criminal law, regardless of the palatability of the views expressed. As Lord Justice Sedley noted in DPP v Redmond-Bate "Freedom only to speak inoffensively is not worth having". [2]

Police forces across the country are faced with the problem of managing repeated demonstrations organised by Britain First, and other groups (such as the English Defence League) targeted in areas with a high concentration of Muslim populations. At a time of significant budgetary restraints, the strain placed on already stretched resources is immense. It is clear that, even where the Public Order Act 1986 allows for conditions to be imposed, a police presence will be required to ensure compliance. Perhaps it is unsurprising that Chief Constables sought to test the effectiveness of the relatively new provisions contained within the Anti-Social Behaviour, Crime and Policing Act in preventing this kind of protest taking place. The Public Order Act 1986 does, of course, include the possibility of making an application under s13 to ban all processions for a period of up to three months. In practice, however, the measure is rarely used (although demonstrations by the English Defence League in London were the trigger for a ban in 2012) [3]. The preconditions for a ban under s13 are onerous, as it must be demonstrated not only that there is a risk of serious disorder, disruption to the life of the community, damage or intimidation, but also that there are no conditions which could be imposed under s12 sufficient to provide controls. The approval of the Home Secretary is required, and, although some commentators have previously suggested that it is likely that the Secretary of State would defer to the operational decisions of a Chief Constable regarding the likelihood of disorder in his or her region [4], this was not the experience in Rotherham. Despite requests from Rotherham Council and the Police and Crime Commissioner for South Yorkshire, the Home Secretary declined to approve a ban under s13, opting instead to provide a special grant of funding to meet the costs of policing [5]. The judge was clearly cognisant of the bigger picture, and mindful of the possibility of opening a floodgate of similar applications across the country if the injunction barring entry to the town had been granted.

Against this background, it is easy to see why the use of civil injunctions would have appeared to be an attractive one. The use of civil injunctions to curtail public protest is not entirely new; for example, the Protection from Harassment Act 1997 was used to significantly restrict the activities of animal rights protestors in University of Oxford v Broughton [6] and Novartis Pharmaceuticals UK v Stop Huntingdon Animal Cruelty [7]. In dealing with these applications, the court was mindful of the right to protest under article 10, and the need to ensure that any such restrictions complied with the requirement for necessity and proportionality. In granting the two interim injunctions prohibiting the use of threatening and abusive language, and carrying banners displaying anti-Muslim slogans, the judge intimated that the respondents may, at the full hearing, seek to challenge these on the basis of the availability of the criminal law (para 15).

The decision in this case, then, is entirely consistent with the pre-existing case law in seeking to uphold the right to protest. It is difficult to see how the injunction precluding entry to the town (which would effectively bar Britain First's leaders from campaigning in the area) could possibly have been granted in circumstances which would not be so severe as to trigger the approval of a ban under s13.