Public bodies must not bow to mob rule

LAW REPORT: 13 April 1995

R v Coventry Airport, Ex parte Phoenix Aviation; R v Dover Harbour Board, Ex parte Peter Gilder & Sons; R v Associated British Ports, Ex parte Plymouth City Council.

Queen's Bench Divisional Court (Lord Justice Simon Brown and Mr Justice Popplewell).

12 April 1995

The rule of law does not allow public authorities to respond to unlawful protest by in effect surrendering to mob rule but requires such authorities, inco-operation with the police, toensure that the right of others to go about their lawful business is not disrupted.

The Divisional Court decided that Coventry airport, Dover Harbour and Millbay Docks, Plymouth must remain open to livestock trade.

Coventry City Council and Dover Harbour Board decided to ban trade in exporting live animals at Coventry Airport and Dover Harbour because of disruption by animals-rights protesters. Phoenix Aviation and Peter Gilder & Sons, engaged in transporting livestock, challenged those decisions. Plymouth City Council challenged the decision of the Associated British Ports, which operates Millbay Docks, to allow them to be used for such trade.

Sir Christopher Prout QC and Karen McHugh (Beechcroft Stanleys for Clarke Willmott Clarke) for Phoenix; Stuart Isaacs QC and Clive Lewis (Sharpe Pritchard) for Coventry CC; David Vaughn QC, David Lloyd Jones and Philip Moser (Cole & Cole) for Peter Gilder; David Pannick QC and David Anderson (Mowll & Mowll) for Dover Harbour Board; Richard Gordon QC and Nicholas Green (City Solicitor) for Plymouth CC; Richard Field QC and Nigel Giffin (ABP) for ABP; Richard Plender QC, Peter Duffy and Philippa Watson (Bindman & Partners) for Compassion in World Farming; Charles Haddon-Cave (National Farmers' Union) for the NFU; Stephen Hockman QC (Kent County Constabulary) for the Chief Constable of Kent.

LORD JUSTICE SIMON BROWN, giving the court's judgment, said export of liveanimals for slaughter was lawful but many thought it immoral. The trade had attracted highly publicised protest. The precise point at which the right of public demonstration ended and the criminal offence of public nuisance began might be difficult to detect. Not only was all violent conduct unlawful; so too was any activity which substantially inconvenienced the public at large and disrupted the rights of others to go about their lawful business.

Each port authority had no discretion to distinguish between lawful trades or to refuse trade which was lawful. There existed no emergency as could begin to justify non-compliance with their duty to accept this lawful trade.

Even if the port authorities had a discretion to determine which legal trades to handle, they could not properly exercise it here to ban the livestock trade on grounds it would generate unlawful disruption. Case law recognised that public authorities must beware of surrendering to the dictates of unlawful pressure groups. The implications of such surrender for the rule of law could hardly be exaggerated.

On occasion a variation or even short-term suspension of services might be justified. But it was one thing to respond to unlawful threats, another to submit to them. None of the authorities challenged gave the least thought to the awesome implications for the rule of law of doing what they proposed.

The police had ample powers to control unlawful protest.It would be for the Chief Constable to decide on the measures necessary and all concerned should co-operate fully with him.It was impossible for the port authorities to submit to unlawful protest even if they wished to do so.

The only body properly able to ban this lawful trade was parliament itself - unless advised that even that would be unlawful under Community law.The applications in the Coventry and Dover cases succeeded, that in the Plymouth case failed.

Ying Hui Tan, Barrister