A decision not to provide livestock exporters with full-time police protection against animal rights protesters, but to limit that protection to two days a week on grounds of inadequate resources, was neither unreasonable nor an unjustified restriction on exports.
The Court of Appeal allowed an appeal by the Chief Constable of Sussex against the decision of the Queen's Bench Divisional Court ( QB 197) who granted an application by International Traders Ferry Ltd for judicial review of decisions made by or on behalf of the Chief Constable on 10 and 24 April 1995.
ITF was incorporated in October 1994 to operate a ferry service taking livestock across the channel after the main ferry operators had withdrawn from that market. Because of the protests at Shoreham, large numbers of police officers were required to escort the lorries carrying livestock into the port. Sussex police found it difficult to meet the demand from its own resources. Officers had to be taken away from other duties. In April 1995 the Chief Constable wrote to ITF stating that police protection for the convoys would be withdrawn save on two consecutive days a week or four consecutive days a fortnight.
ITF sought judicial review claiming (a) that the decision was unreasonable on Wednesbury grounds (see Associated Provincial Pictures Houses Ltd v Wednesbury Corporation  2 All ER 680,  1 KB 223); and (b) that it violated article 34 of the Treaty of Rome.
Article 34 prohibited measures having the effect of quantitative restrictions on exports within the European Union; but article 36 provided that it should not preclude prohibitions or restrictions which were "justified on grounds of public morality, public policy or public security".
The Divisional Court rejected the claim on Wednesbury grounds but upheld that based on article 34, holding that the Chief Constable had failed to show that the resources available to him were inadequate to protect the convoys on a regular basis.
Lord Lester of Herne Hill QC and Adam Lewis (Sussex Police Authority) for the Chief Constable; Peter Roth and Rhodri Thompson (Wynne Baxter Godfrey, Brighton) for ITF.
Lord Justice Kennedy said the Chief Constable's conclusions, that with the resources available to him he could no longer both provide effective policing throughout his area and escort lorries for ITF for five days a week, and that he had no realistic prospect of obtaining significant extra resources, could not possibly be regarded as so unreasonable as to enable a court to interfere.
Having arrived at those conclusions, the Chief Constable was obliged to make a further decision, namely how best to deploy his limited resources so as to keep the peace and enforce the law. His decision was to limit the convoy escort to two days a week.
Assuming that decision had the effect of a quantitative restriction on exports, had the Chief Constable proved that the restrictions he imposed were justified on public policy grounds? That was a significant burden because a fundamental freedom was being curtailed, but the fact that the Chief Constable was himself acting in the public interest, to preserve law and order, must also be weighed in the balance.
The question was whether, in pursuit of his aim of using his available resources to police his area as well as he could, the Chief Constable acted proportionately. In answering that question, the courts must grant the Chief Constable, as the person charged with the responsibility of making decisions, a margin of appreciation.
Three competing interests had to be balanced: (i) the right of ITF to protection for its lawful economic activity; (ii) the right of Sussex residents to protection from crime and disorder; (iii) the right of animal protesters to protest peacefully (but not illegally).
Where resources were not infinite, a balance must be struck, and almost inevitably no one interest could be regarded as absolute.
The decisions under challenge had not been made primarily to lighten the administrator's burden or to reduce public expenditure (reasons held by the European Court of Justice to be unacceptable in De Peijper  ECR 613 at 636). They were made to make the best use of available resources.
In the circumstances, his Lordship was satisfied that, if the Chief Constable's decisions contravened article 34, he was entitled to rely on article 36.