Clarifying Public Spaces Protection Orders: Dulgheriu v. The London Borough of Ealing

Introduction

The case of Dulgheriu & Anor v. The London Borough of Ealing ([2019] EWCA Civ 1490) represents a pivotal moment in the interpretation and application of Public Spaces Protection Orders (PSPOs) within England and Wales. This case revolves around the validity of a PSPO enacted by the London Borough of Ealing, which sought to prohibit anti-abortion protests in the immediate vicinity of the Marie Stopes UK West London Centre—a facility offering family planning and abortion services.

The appellants, affiliated with the Christian group Good Counsel Network (GCN), challenged the PSPO on two primary grounds:

The local authority exceeded its power by imposing restrictions primarily affecting occasional visitors rather than regular residents or workers in the locality.
The PSPO's restrictions infringed upon the appellants' rights under Articles 9, 10, and 11 of the European Convention on Human Rights (ECHR).

Summary of the Judgment

The England and Wales Court of Appeal upheld the original High Court decision dismissing the appellants' challenges. The court affirmed that the local authority, Ealing, had the requisite power to issue the PSPO under the Anti-Social Behaviour, Crime and Policing Act 2014. Moreover, the restrictions imposed by the PSPO were deemed compatible with Articles 9, 10, and 11 of the ECHR.

Central to the judgment was the interpretation of "those in the locality," which the court held could include occasional visitors to the area, not just permanent residents or regular workers. The court also meticulously balanced the right to privacy under Article 8 against the protesters' rights to manifest their religion and express their views under Articles 9, 10, and 11, concluding that the PSPO was a proportionate and necessary restriction within a democratic society.

Analysis

Precedents Cited

The judgment extensively referenced prior cases to shape the legal reasoning:

Summers v London Borough of Richmond Upon Thames [2018]: Affirmed that "those in the locality" can include regular visitors or workers, broadening the scope of PSPO applicability.
Peck v United Kingdom (2003), Couderc v France [2016], and Murray v Express Newspapers [2008]: These cases were scrutinized to evaluate the engagement of Article 8 rights, ultimately distinguishing the facts of Dulgheriu from them.
Annen v Germany [2015], Couderc, and Lashmankin v Russia (2019): Provided insights into balancing Articles 10 and 11 with other rights under the ECHR.

Legal Reasoning

The court's legal reasoning was methodical, adhering to the principles of statutory interpretation and human rights balancing:

Interpretation of "Those in the Locality": The court rejected the appellants' narrow interpretation, confirming that occasional visitors could fall within this category if their experiences are substantively affected by the PSPO.
Engagement of Article 8 Rights: The court recognized that the right to privacy under Article 8 is central to individuals seeking sensitive medical services, such as abortion. The interference by protesters was seen as an invasion of this privacy.
Balancing ECHR Rights: The court conducted a proportionality test, weighing the appellants' rights to religious expression and peaceful assembly against the plaintiffs' right to privacy and free access to medical services. The decision upheld the PSPO as a necessary and proportionate measure.

Impact

The judgment sets a significant precedent for the application of PSPOs, particularly in contexts where the affected individuals are not permanent residents but are nonetheless integral to the locality's welfare. It clarifies that local authorities have broad discretion to interpret "locality" based on the circumstances, thereby enabling more responsive and adaptive measures to protect public spaces from anti-social behavior.

Furthermore, it underscores the necessity for courts to diligently balance competing rights, emphasizing that while freedom of expression and assembly are foundational democratic principles, they may be justifiably curtailed to protect individuals' privacy and well-being in specific contexts.

Complex Concepts Simplified

Public Spaces Protection Orders (PSPOs)

PSPOs are legal instruments that allow local authorities to restrict certain activities in public spaces to prevent anti-social behavior. They are governed by the Anti-Social Behaviour, Crime and Policing Act 2014 and are intended to enhance the quality of life in local communities.

European Convention on Human Rights (ECHR) Articles

Article 8: Protects individuals' rights to privacy and family life.
Article 9: Ensures freedom of thought, conscience, and religion.
Article 10: Guarantees freedom of expression.
Article 11: Safeguards the right to peaceful assembly and association.

Proportionality Test

A legal principle used to assess whether the limitation of a fundamental right is justified. It involves determining if the measure:

Pursues a legitimate aim.
Is suitable to achieve that aim (has a rational connection).
Is necessary in that no less restrictive means are available.

Conclusion

The Court of Appeal's decision in Dulgheriu & Anor v. The London Borough of Ealing affirms the robust authority of local councils to implement PSPOs tailored to the specific needs and circumstances of their communities. By interpreting "those in the locality" expansively to include occasional visitors and meticulously balancing competing human rights, the court ensures that public spaces can be regulated effectively to protect individuals' privacy and well-being without unduly infringing on fundamental freedoms.

This judgment provides clear guidance for future cases involving PSPOs, emphasizing the necessity for evidence-based assessments and the importance of proportionality in balancing rights. It reinforces the principle that while freedom of expression and assembly are vital, they must coexist with the community's right to privacy and the protection of vulnerable individuals within public spaces.