Belfast Telegraph

Softly-softly flag row policing was all wrong

By Rebecca Black

The PSNI's strategy for dealing with public disorder lies in tatters after a scathing High Court judgment said police in Belfast had facilitated illegal and often violent parades.

Mr Justice Treacy accused senior police of not understanding the law, and made damning criticism of how the PSNI policed protest parades which passed a nationalist enclave between December 2012 to February 2013.

At that time protesters had been parading every Saturday from east Belfast to City Hall to demonstrate against the council vote to limit the number of days on which the Union flag flew at the building.

A man who lives in the Short Strand and has had to endure a number of attacks on his home launched a bid for a judicial review of how the police dealt with the protests.

He went to court over the PSNI's failure to provide assurances that it would prevent any future parade past his home.

The man claimed this breached his privacy and family life entitlements.

Lawyers for the resident, identified only as 'DB', argued that no notification was given for any of the parades in December or January.

Police instead allowed unnotified processions to take place and failed to arrest those involved in organising and taking part, the lawyers for the man claimed.

Granting the judicial review against the PSNI, the judge said police had misdirected themselves. He said that because police believed there was a gap in the law when the Parades Commission had not made a determination on a march, their ability to efficiently and effectively police these parades was hampered.

"This was simply wrong and I consider that it was this misdirection which explains and led to the situation in which the police facilitated illegal and sometimes violent parades," he said.

He stated that Assistant Chief Constable Will Kerr did not appear to have fully appreciated that an unnotified parade had the same status as one which takes place in defiance of a Parades Commission determination.

"It is evident that ACC Kerr was labouring under a material misapprehension as to the proper scope of police powers and the legal context in which they were operating," he said.

The judge added: "I accept the applicant's submission that in the period following December 8, 2012 until in or about the start of January 2013, ACC Kerr did not address himself to the question of whether to stop the weekly parade, nor did the police behave proactively, or at all, in relation to prosecuting those organising and participating in the parades."

The Police Federation said it hoped the decision to allow a judicial review would "remove doubt and ambiguity" over what the law permits.

A spokesman said: "Officers who bear the brunt of attacks from all sides deserve decisive, clear-sighted and timely instructions. It is, therefore, essential that there is no ambiguity or doubt in the interpretation of the law. There is a need to clear up any misunderstanding of the tolerances and scope that exist to deploy personnel, restrict and quell unlawful gatherings and deal with serious street disorder."

PSNI Chief Constable Matt Baggott vowed to appeal the judgment. He pointed out that 700 people had been charged over the flag protests. "I am concerned that this judgment may constrain our operational flexibility in the future, and create an expectation that police will always be able to stop protests or arrest people at the time irrespective of the individual circumstances," he said.

"My concern is, to do so may require significant force and undermine our attempts to work with communities, and that would be wrong."

Sinn Fein blasted his planned appeal as "trying to defend the indefensible".

"I welcome this ruling that the PSNI clearly failed to protect the residents of Short Strand over countless illegal marches by flag protesters past the area," MLA Pat Sheehan said.

"I'm disappointed that despite this ruling the Chief Constable has stated he will appeal. Despite his protestations of what he believes expectations at the time were, the public expects their homes and their communities to be protected by the police."

In his own words: Mr Justice Treacy

"In the period following December 8, 2012 until in or about the start of January 2013, Assistant Chief Constable (Will) Kerr did not address himself to the question of whether to stop the weekly parade, nor did the police behave proactively, or at all, in relation to prosecuting those organising and participating in the parades.

"I accept the further submission that at whatever stage in mid-January ACC Kerr addressed himself to the question of stopping the parade, instead of recognising that he had ample powers to deal with the parade either by stopping the parade and/or arresting those participating in the parade, he mistakenly considered that the 1998 Act hampered his ability to stop the parade and his ability to police the situation effectively.

"The (PSNI) events book indicates a failure on the part of ACC Kerr to specifically and appropriately engage with the march from east Belfast to Belfast city centre despite its illegality and the associated public disorder.

"The impugned policing operation during the period complained of was characterised by an unjustified enforcement inertia.

"I consider this is because the police misdirected themselves believing that because there was no determination there was a lacuna or complexity in the applicable legal provisions which hampered their ability to efficiently and effectively police these parades.

"This was simply wrong and I consider that it was this misdirection which explains and led to the situation in which the police facilitated illegal and sometimes violent parades with the effect of undermining the 1998 Act, in breach of their duties under section 32 of the Police (NI) Act 2000 and in breach of the applicant's Article 8 rights."

In his own words: Matt Baggott

"Our concern is very much around the protection of life and public safety.

"I am concerned there may be an impression here that the law enables us to take a course of action and therefore we can and we should.

"The difficulty when you have finite resources and a large-scale protest, you have to police that reasonably both for the protection of individuals, communities and police officers. They were tough decisions made at the time; they were pragmatic decisions.

"Back in January 2013 I said that our approach would be both measured and responsible, but I was very clear and unequivocal that justice would be done. And it has; we have had nearly 700 people charged with offences rising out of those disputes and protests, and yet not a member of the public was seriously injured.

"I am concerned that this judgment may constrain our operational flexibility in the future. It does not appear to me to take full account of the sheer scale of the protests -- on one night we were dealing with over 80 protests on a single evening.

"The scale of the protests and the intensity of the disorder, which in my experience I have not witnessed before, and also the very real potential for escalation across all of Northern Ireland.

"The judgment mentions ACC Will Kerr. I, as Chief Constable, take full responsibility and accountability for all of the operational decisions made at the time, of which I was a part.

"I said at the time and I'll say it again -- I would rather be accused of being too soft than of being too hard and robust and potentially seeing many people injured and the future jeopardised."

Timeline:

December 3, 2012: Union flag vote at Belfast City Council.

December 5: Violent protest in Carrickfergus.

December 7: Clashes in Belfast and Newtownabbey.

December 8: First weekly march from east Belfast to City Hall.

December 10: Petrol bomb hurled into PSNI car.

December 17: 80 protests held across Northern Ireland.

January 3-8, 2013: Nightly disturbances in east Belfast.

January 7: Clashes outside city council meeting.

January 11: Protesters block roads in Belfast and other towns.

February 16: Football match called off due to protest.

February 27: Prominent flag protesters Willie Frazer and Jamie Bryson arrested.

March 2: City Hall protests reduced to 150 bussed-in people.

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