R v Chief Constable of Sussex, ex parte International Trader's Ferry Ltd

Facts

International Trader's Ferry Ltd exported live sheep and calves from Shoreham and Brightlingsea. Demonstrations against the trade became large and sometimes violent, and the police were heavily committed in keeping order and enabling lorries to enter the port. The Chief Constable of Sussex, who was responsible for policing Shoreham, decided to limit the police resources devoted to it, so that policing was provided on only some days of the week, because of the cost and the demands on other policing duties. The exporter argued that the decision was irrational and that it restricted exports in breach of what is now Article 35 of the Treaty on the Functioning of the European Union.

Issue

Whether the Chief Constable's decision to limit the policing of the ports was irrational in the sense of Wednesbury unreasonableness; and whether it was a measure having equivalent effect to a quantitative restriction on exports, contrary to Community law, which was not justified.

Held

The exporter challenge failed. The decision was not unreasonable in domestic law, as he was entitled to take account of the limited resources available and the competing demands on policing. If the decision engaged the Treaty provision on exports, it was justified on grounds of public policy and public order and was proportionate.

Ratio

• A chief constable has a wide discretion in deploying limited resources, and a decision to restrict the policing of a lawful trade because of the cost and the demands on his force is not unreasonable where he has weighed the competing considerations.
• Even if a police decision affecting exports is a measure having equivalent effect to a restriction, it is justified by public policy and public order if it is proportionate, and the need to allocate finite resources and maintain order may justify a limit on protection.

The judgments

Key reasoning

• A chief constable must decide how to use finite resources; he cannot be required to deploy the whole force in protecting a single lawful activity if that endangers other policing duties.
• The cost of providing the level of policing demanded was very large and the Chief Constable concluded that the force could not continue to bear it, and a decision to reduce policing to the level that could be supported was not outside the range of reasonable responses.
• Under Community law, a Member State may justify measures that restrict exports on grounds of public policy where the response is proportionate, and the same balance of resources and order underlay the decision.

Where it fits in the module

On the Unreasonableness topic, ITF illustrates Wednesbury unreasonableness applied to a decision with a resource dimension, where Lord Slynn's discussion of Community law proportionality was set beside the domestic test. The FHS debate concerns whether the intensity of review should vary with context, whether proportionality should replace Wednesbury as the general standard, as the Supreme Court discussed in Kennedy v Charity Commission [2014] UKSC 20 and Pham v Secretary of State for the Home Department [2015] UKSC 19, and how far a public authority may rely on lack of resources, which R v Gloucestershire CC, ex p Barry [1997] AC 584 and R (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392 treat in different ways.

Criticisms

• The decision lets the courts accept resource pressure as a ground that makes a limit on protection of a lawful trade reasonable, and critics say this gives public authorities too much room to avoid enforcing legal rights by pointing to cost.
• The case sits uneasily with the principle that protesters cannot veto lawful activity by threats of disorder, because it allows the amount of lawlessness to determine the amount of protection a lawful business receives.
• The treatment of the Community law question as a proportionality inquiry beside a unreasonableness test for domestic law produced two standards for the same decision, a duality critics find incoherent.
• Wednesbury review gave little scrutiny to the way the Chief Constable valued the interest in exporting lawfully, as the court did not ask what alternatives were available or how resources might be reallocated.