DB v Chief Constable of Police Service of Northern Ireland (Northern Ireland) [2017] UKSC 7

Residents of the nationalist Short Strand area in Belfast challenged the PSNI's failure to stop unnotified loyalist 'flags protest' parades that caused violence and sectarian attacks on their homes. The Supreme Court held the police had misunderstood the scope of their legal powers to stop such parades.

Facts

Following Belfast City Council’s decision on 3 December 2012 to fly the Union flag only on designated days, a series of loyalist protests known as the ‘flags protest’ erupted across Northern Ireland. From 8 December 2012, weekly parades processed from East Belfast to Belfast City Hall and back, passing through the nationalist Short Strand area. None of these parades was notified to the Parades Commission as required by section 6(1) of the Public Processions (Northern Ireland) Act 1998. The parades were marked by substantial violence, sectarian abuse, and attacks on Short Strand residents’ homes, including that of the appellant DB.

The PSNI, under Assistant Chief Constable Will Kerr as Gold Commander of ‘Operation Dulcet’, policed but did not stop the parades. ACC Kerr’s affidavits and public statements indicated his belief that PSNI had no specific power to ban or stop a procession solely because it was unnotified, that the situation was ‘legally complex’, and that the Parades Commission ought to take responsibility. In a press interview, he stated there was ‘no such thing as an illegal parade under the Public Processions Act’.

Issues

The central issue, as reformulated by the Supreme Court, was whether the PSNI had a proper understanding of the extent of their legal powers to stop the unnotified parades. Subsidiary issues included whether police inaction undermined the 1998 Act, whether the appellant’s article 8 ECHR rights were breached, and whether operational decisions were proportionate.

Arguments

Appellant

Ms Quinlivan QC argued that PSNI had undermined the 1998 Act by failing to stop the weekly parades; that the police wrongly believed they lacked power to stop unnotified parades; that ACC Kerr had misunderstood the qualified nature of article 11 ECHR; that the state had failed its positive obligation under article 8 to protect the appellant from attacks; and that operational discretion did not provide blanket immunity from review, the actions having to pass a proportionality test as identified by Lord Carswell in E v Chief Constable of the RUC.

Respondent

The Chief Constable’s position, supported by ACC Kerr’s affidavits, was that PSNI had no power to ban a procession under the 1998 Act, only the Secretary of State could prohibit parades under section 11, and policing decisions had to balance article 2 risks of disorder and loss of life if parades were forcibly stopped. The respondent relied on PF and EF v United Kingdom to argue that requiring police to end every violent protest would be disproportionate.

Judgment

The Supreme Court, in a judgment delivered by Lord Kerr with whom Lord Neuberger, Lord Reed, Lord Hughes and Lord Dyson agreed, allowed the appeal and reversed the Court of Appeal’s decision.

The Court held that section 6(7) of the 1998 Act made it a criminal offence to organise or take part in an unnotified public procession. The PSNI accordingly had power, under their common law duty to prevent crime and under their statutory general duty in section 32 of the Police (Northern Ireland) Act 2000, to stop such parades precisely because participation in them was a criminal offence. ACC Kerr’s repeated statements that there was ‘no such thing as an illegal parade’ and that parades could not be stopped ‘solely because they are unnotified’ demonstrated a fundamental misapprehension of the legal position.

The Court found that the Court of Appeal had erred by failing to address the point Treacy J had identified: that the police failed to advert to section 6(7) and thus did not consider stopping the parade on the ground of its illegality. Lord Kerr emphasised that the police ‘did have power to stop an unnotified parade precisely because participating in such a parade was a criminal offence’. Efforts to persuade the Parades Commission to take responsibility were misconceived, as the commission had no jurisdiction over unnotified parades.

On article 11 ECHR, Lord Kerr held that ACC Kerr’s belief that police were obliged to facilitate peaceful protests even where ‘technically illegal’ was misplaced. Citing Eva Molnar v Hungary, the Court confirmed that prior notification requirements do not normally infringe article 11, and dispersal of unnotified non-spontaneous assemblies is generally permissible.

The Court rejected, however, the conclusion that the 1998 Act had been ‘undermined’, finding the police failures were the result of misapprehension rather than wilful disregard.

On appellate review of first-instance findings, Lord Kerr, drawing on McGraddie v McGraddie, held that the Court of Appeal should have shown greater reluctance to reverse Treacy J’s findings, even though the evidence was largely affidavit-based.

On operational discretion, the Court accepted that PSNI must enjoy such discretion but, citing Lord Dyson MR in H v Commissioner of Police of the Metropolis, held it does not equate to immunity. Proportionality analysis was unhelpful here because PSNI had set itself the wrong legal context for its decisions.

The Court made a declaration that PSNI had misconstrued their legal powers to stop parades passing through or adjacent to the Short Strand area.

Implications

The decision clarifies that, in Northern Ireland, where a public procession has not been notified under section 6 of the Public Processions (Northern Ireland) Act 1998, the police possess legal power to stop it. This power derives from the criminality of participation under section 6(7), combined with common law powers to prevent crime and the statutory duty under section 32 of the Police (Northern Ireland) Act 2000. The Parades Commission has no role in unnotified parades; responsibility falls squarely on the police.

The judgment confirms that article 11 ECHR does not require the police to facilitate non-spontaneous, unnotified, and violent protests, and that notification requirements are generally Convention-compatible. The decision also reinforces the limits of operational discretion: while courts respect police judgment in difficult policing situations, that discretion must be exercised on a correct understanding of legal powers, and proportionality cannot be assessed where the legal framework has been misunderstood.

The case is significant for police forces, community residents affected by contentious processions, and the operation of the parades regime in Northern Ireland. It does not impose an obligation on police to stop every unnotified parade regardless of consequences, expressly recognising that operational constraints, including article 2 risks, must be assessed. However, those operational judgments must be made within the correct legal framework. The judgment also offers important guidance, drawing on McGraddie, on appellate restraint in reviewing first-instance findings, even where the evidence is documentary or by affidavit.

Verdict: Appeal allowed. The Court of Appeal’s decision was reversed and a declaration made that, in handling the flags protest in Belfast during December 2012 and January 2013, the PSNI misconstrued their legal powers to stop parades passing through or adjacent to the Short Strand area.

Source: DB v Chief Constable of Police Service of Northern Ireland (Northern Ireland) [2017] UKSC 7