UK Court of Appeal dismisses challenge of anti-abortion protestors to exclusion order

The UK Court of Appeal has dismissed a challenge brought by anti-abortion campaigners to a “public spaces protection order” (PSPO) made by a local authority intended to create a ‘safe zone’ around a clinic which provided abortion services.

The PSPO was made in response to the activities of the religious anti-abortion campaign group, the Good Counsel Network, which had caused intimidation and distress to those attending the clinic. The UK Anti-Social Behaviour, Crime and Policing Act 2014 empowers local authorities to make a PSPO if, among other things, the activities targeted 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. The effect of the PSPO in this case was to prohibit any form of protest relating to abortion within a defined buffer zone around the centre, save within a small “designated area” some distance from the clinic entrance.

Members of Good Counsel Network challenged the PSPO on the basis that the order imposed was incompatible with their rights under the European Convention on Human Rights (ECHR). Specifically, they argued that the PSPO constituted a disproportionate interference with the rights of anti-abortion protesters under Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association).

The Court of Appeal unanimously dismissed these arguments and clearly confirmed that “the decision of a woman to have an abortion is an intensely personal and sensitive matter” falling within the concept of private life protected by Article 8 ECHR. The Court found that although the protestors rights were engaged by the PSPO, the judge had correctly carried out the proportionality and balancing exercise. He came to this conclusion 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”.

On that basis the Court felt that the judge had been entitled to come to a conclusion that the Article 8 rights of service users outweighed the Article 9, 10 and 11 rights of protestors, and the terms of the PSPO were proportionate. Notably, the relevant UK legislation required the Council to undertake a statutory consultation in advance of making the order. In this case, this consultation attracted over 2000 online and written representations substantially in support of the making of the PSPO. The evidence of detrimental effect and “lasting psychological and emotional harm of service users” was also significant and included supporting witness statements, photographs and incident logs.

Click here for judgment in Dulgheriu & Anor v London Borough of Ealing.




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