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Police misconstrued their legal powers during the ‘flag protest’

DB v Chief Constable of PSNI [2017] UKSC 7

The Supreme Court ruled unanimously that the police had legal powers to stop the ‘flag protests’ that took place in Belfast in December 2012 and continued into March 2013. 

On 3rd December 2012, Belfast City Council took the decision to stop flying the Union flag over Belfast City Hall every day.  Instead the flag would be flown on designated days. This resulted in protests by loyalists throughout Northern Ireland for a number of months and the episode was generally known as the ‘flag protest.’

Protestors marched to and from East Belfast to City Hall via the Short Strand, an area in which residents ‘are perceived to be nationalist.’  In this area, residents were subjected to violence, disorder and sectarian abuse.  Under the Public Processions (NI) Act 1998, it was an offence to partake in a public procession without notifying the commission.  No notification under the 1998 Act was made in respect of any of the parades.  The police initially had taken the decision not to permit the protesters to enter the City Centre but between 6th and 8th December 2012, they made a decision to facilitate the protests and did not take preventative action believing that they had no power to stop them.

The applicant, a resident of Short Strand, judicially reviewed the PSNI’s decision.  The High Court found that the PSNI had failed to appreciate the extent of its powers to stop un-notified parades.  The Court of Appeal disagreed and allowed the Chief Constable’s appeal.  The Supreme Court reversed the Court of Appeal’s decision and ruled that police have a duty under the general law to prevent the commission of offences and participation in an un-notified parade is a criminal offence.  Police were not obliged by Article 11 of the ECHR, which protects freedom of assembly and association, to facilitate peaceful protests which are technically illegal.  However, they did have a duty to protect the Article 8 rights of residents.

Read Supreme Court press summary here and UK Human Rights blog article here.

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