Community Protection Notice did not breach human rights

06 May 2020

Housing, Public Law and Judicial Review

A District Judge sitting at the East London Magistrates’ Court has today dismissed an appeal in respect of a Community Protection Notice issued to a pro-life protestor who was involved in a series of protests in the Walthamstow Town Centre.

The Appellant is a member of CBR UK, an organisation that claims to “educate the public about the humanity of the unborn child and the reality of abortion“. In Walthamstow CBR UK’s methods included the use of a very large colour image of an aborted 24-week foetus as part of their campaign in which they sought to highlight what they saw as the local MP’s support for the liberalisation of abortion.

After receiving numerous complaints, the Council served a Community Protection Warning requiring the Appellant to remove “from public view the images of large unborn foetuses and/or aborted foetuses on display“. When that warning was not complied with a Community Protection Notice was served requiring the images to be removed.

The Appellant appealed the CPN to the Magistrates Court on the basis that it infringed his Article 9 right to freedom of religion and his Article 10 right to freedom of expression. In addition, he argued that his actions in displaying the image did not have a “detrimental effect” on the quality of life of those in the locality and was not “persistent or continuing”.

The power to issue CPNs was introduced by the Anti-Social Behaviour, Crime and Policing Act 2014. The police or local authority can serve a CPN where there is conduct taking place which has a “detrimental effect on the quality of life of those of those in the locality” which is of a “persistent or continuing nature” and which is “unreasonable”. A written warning must be served before a CPN can be issued. Further information about CPNs can be found in this video.

In a reserved judgment delivered after a two-day hearing in which 12 witnesses were called, District Judge Jonathan Radway dismissed both grounds of appeal.

The District Judge found that viewing the image, which was in colour and measured 3m x 3m, was unavoidable to anyone with normal vision who entered the town square.

The District Judge said that there was “no doubt” in his mind that the display of the 24-week-dead foetus had a detrimental effect on the quality of life of some (though not all) of the people in the locality. He said the image had correctly been described as graphic, upsetting, sickening, disturbing, anxiety-inducing, frightening and horrific. He dismissed the Appellant’s suggestion that the images were lawful and therefore could not be detrimental, and dismissed their assertion that these were descriptions given by over-sensitive people. Instead he found that the display of the image had had “very real” consequences for the individuals he had heard from.

The District Judge said that freedom of expression comes with duties and responsibilities. The Appellant had no way of knowing who would enter the town square or how they might be negatively affected by the image on display. He found that the use of the CPN powers was a proportionate response to the situation having found that there was no interference with any of the other aspects of the campaign’s activities which the Appellant was leading that day (including being present in the town square, approaching members of the public, handing out leaflets, showing video images on portable devices or any other activity to garner support for their cause). The District Judge said that the CPN did not cause the campaign to end, “at most it was blunted a little”.

In his judgment he cited the cases of Summers v Richmond LBC and Dulgheriu v Ealing LBC which have considered similar statutory language in the context of Public Spaces Protection Orders.

Kuljit Bhogal, public law barrister, represented L B Waltham Forest in defending this challenge and was instructed by Kim Travis from the legal services team.

Further information on CPNs can be found in chapter 6 of Kuljit’s book Cornerstone on Anti-Social Behaviour (2nd edition May 2019). Hard copy and e-book versions are available from Bloomsbury and Amazon where reviews for this and the previous editions can be found.

A video on Closure Orders is also available and we will release a video on Public Spaces Protection Orders next week.

You can find more information on how anti-social behaviour powers can be used during the lockdown here.