Law Report: Police cannot cut protection of livestock exporters

Although the chief constable was entitled under domestic law to limit, on the basis of strained manpower and financial resources, the police protection of the exporters of livestock against protesters, under Community law such a limit amounted to an unlawful restriction on exports which could not be justified on public policy grounds as the chief constable had not sought to increase the financial resources available to him.

The Divisional Court quashed decisions of the chief constable to restrict policing the transport of livestock through Shoreham Harbour.

The applicant, a company incorporated for the carriage of livestock from Great Britain to Europe, arranged to operate a regular service out of Shoreham. In view of anticipated protests by animal rights groups the Sussex police mounted an operation to police the transport of livestock. Between 4 January and 14 January 1995 1,125 police officers were required to cope with protesters. Assistance was required from seven other police forces. From 14 January, police cover was provided only for weekday sailings; 315 officers were deployed for each sailing.

In April the chief constable decided to restrict police cover to two consecutive days per week or four consecutive days per fortnight because the policing of the sailings had strained police resources and affected police response to crime. The chief constable made it clear that on days when police cover was not provided the police would stop and turn back livestock vehicles bound for Shoreham whenever a breach of the peace was feared. The use of other police forces was very much more expensive and the chief constable, having considered the Home Office's stringent attitude towards special financial assistance, decided not to request such assistance.

The applicant applied for judicial review of the chief constable's decisions on the grounds that under domestic law the decisions were unreasonable and in breach of his duty to keep the peace, and under Community law, the decisions breached article 34 of the Treaty of Rome which prohibited quantitative restrictions on exports between member states.

Lord Lester of Herne Hill QC and Georgina Kent (Sussex Police Authority) for the chief constable; Peter Roth and Rodhri Thompson (Wynne Baxter Godfrey) for the applicant.

Lord Justice Balcombe, giving the court's judgment, said thatthe chief constable had finite resources in man and woman power; the financial resources available to him were equally finite and were not under his direct control. He could hardly be said to have acted unreasonably in not asking for special financial assistance from the Home Office. Maintaining the police cover could not be done by mutual aid from other forces because of the cost and if done with the chief constable's own officers, only at the expense of policing operations in other parts of East and West Sussex.

The court was quite unable to say that the chief constable's decisions were such that as a matter of domestic law the court could intervene. The application based on domestic law was dismissed.

Turning to article 34, the European Court of Justice had held that measures which applied specifically to exports infringed article 34. The fact that, in certain hypothetical circumstances, the chief constable would have applied restrictions to livestock being transported within the United Kingdom was neither here nor there: the only measure which he had in fact applied was to goods destined solely for export. Therefore the chief constable's actions amounted to a prima facie breach of article 34.

The question then arose whether the breach was saved from being such by article 36 which justified restrictions on exports on certain grounds. The chief constable relied on the ground of public policy.

The principle to be derived from the cases was that the authorities could not rely on the effect of civil disturbances as affording a public policy defence under article 36, provided that resources were available to deal with such disturbances and the cost of so doing was not disproportionate.

It was necessary for the chief constable to prove that the resources available to him were inadequate. While for domestic purposes it might have been reasonable for him to accept the Home Office practice, that did not give him a defence under article 36.

The chief constable had not sought to increase the financial resources available to him and hence the possibility of securing more police for Shoreham through mutual aid. Therefore the chief constable's decisions were measures having an effect equivalent to quantitative restrictions on exports and he had not established a defence under article 36.