It was argued that the council did not have the power to make a “Public Spaces Protection Order” (PSPO) and that the decision to ban protests outside the family planning centre breached their human rights, but the Court of Appeal in London refused the campaigners’ appeal.

‘Safe zone’

The Master of the Rolls, Sir Terrence Etherton, sitting with Lady Justice King and Lady Justice Nicola Davies, heard that the appellants were members of the Good Counsel Network (GCN), a Christian organisation that has, almost on a daily basis for a number of years, congregated immediately outside the Marie Stopes UK West London Centre, which provides family planning services including abortion services.

The GCN’s activities aim at dissuading women from having abortions by, among other things, attempting to engage users of the centre in dialogue as they enter and leave, handing out leaflets and displaying posters depicting foetuses at various stages of gestation.

The court was told that in 2015 a pro-choice group also began to hold counter-protests outside the centre, which generated an atmosphere of tension.

After failed attempts by Ealing Borough Council to find a compromise between the two groups, and following extensive consultation, it made a PSPO banning any form of protest relating to abortion within a defined “safe zone” around the centre, save within a small “designated area” roughly 100m from the entrance to the centre in which protest was permitted.

Section 59 of the Anti-Social Behaviour, Crime and Policing Act 2014 empowers local authorities to make a PSPO if, among other things, the activities targeted by the PSPO have “a detrimental effect on the quality of life on those in the locality” and the activities are “unreasonable” so that the making of a PSPO is “justified”, while section 67 makes it a criminal offence to violate the restrictions imposed by the order.

‘Disproportionate interference’

But the GCN challenged the PSPO under section 66 of the 2014 Act on two bases.

The first issue was whether a local authority has the power to make a PSPO where the activity to be regulated impacts only or primarily on the quality of life of occasional visitors to the locality rather than on those who reside or work in the locality or visit it regularly.

It was argued that that the expression “those in the locality” did not include merely occasional visitors to the locality, and so did not include visitors to the centre.

Secondly, it was submitted that the terms of the PSPO, which were aimed at protecting the Article 8 right to respect for the private life of the users of the centre, were a “disproportionate interference” with the rights of pro-life protesters under Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association of the European Convention on Human Rights (ECHR).

However, the judges unanimously dismissed the appeal after ruling that the council did have the power to make the order.

‘Fair balance’

The court observed that it was clear from the wording of the 2014 Act that the expression “those in the locality” was not limited to those in the local community, and so it was not the case that the interests of occasional visitors to the area were irrelevant when considering whether to impose a PSPO.

The natural meaning of those words included occasional visitors and there was no reason, based either on the nature of the offence created or the wording of section 66 – which gives standing to challenge a PSPO only to those living or regularly visiting or working in the area affected – to restrict their meaning.

The judges also rejected the suggestion that the terms of the order were “incompatible” with the protestors’ rights.

The court’s judgment stated: “The effect of the PSPO is to prohibit in the safe zone all of the activities which the appellants and other protestors have carried on outside the centre and, subject to some restrictions, to confine them to the designated area, some 100 metres away. The next questions, therefore, are whether the judge was entitled to conclude that the restriction of the appellants’ article 10 and article 11 rights by the PSPO, in effect imposing a blanket ban in the safe zone other than in the designated area, was proportionate to the aim of protecting the appellants’ article 8 rights, and whether its terms, individually and taken together, strike a fair balance between the competing rights.

“The judge reached his conclusion that the restriction on the appellants’ rights under articles 9, 10 and 11 by the PSPO was necessary and proportionate on the basis of the entirety of the evidence and information available, including the substantial evidence that a very considerable number of service users of the centre reasonably felt that their privacy was being very seriously invaded at a time and place when they were most vulnerable and sensitive to uninvited attention, namely just before and just after they had undergone a highly personal medical procedure.

“In our view, the judge was entitled to come to the conclusion that, on the particular facts of the present case, the article 8 rights of the service users visiting the centre outweighed the rights of the appellants and other pro-life protesters under articles 9, 10 and 11, and the terms of the PSPO were proportionate.”