Dulgheriu v The London Borough of Ealing [2019]

Florica Alina Dulgheriu & Andrea Orthova v The London Borough of Ealing & The National Council for Civil Liberties (t/a Liberty) [2019] EWCA Civ 1490 is seminal human rights and public law case, where the UK Court of Appeal upheld a decision affirming the lawfulness of a Public Spaces Protection Order (PSPO) introduced by the London Borough of Ealing.

The PSPO was implemented to create a safe zone around a reproductive healthcare clinic to prevent anti-abortion protesters from engaging in activities near the clinic that were found to be harmful and distressing to those using the clinic's services. The court held that the PSPO was compatible with the European Convention on Human Rights (ECHR), particularly Articles 8, 9, 10, and 11, which protect the rights to privacy, freedom of thought and religion, freedom of expression, and freedom of assembly, respectively.

The case arose after the appellants, who were associated with the Christian anti-abortion group Good Counsel Network (GCN), regularly protested outside the Marie Stopes UK West London Centre. Their activities included displaying graphic images of fetuses, distributing leaflets, and confronting clinic users with the intent to dissuade them from accessing abortion services. These protests led to significant complaints and concerns from the local community, as many found the protests intimidating and distressing, particularly for women visiting the clinic. In response, the London Borough of Ealing introduced a PSPO to restrict such activities within a designated safe zone surrounding the clinic, intending to protect the privacy and well-being of the clinic’s service users.

Challenging the PSPO in the High Court, the appellants argued that it unlawfully infringed their rights under Articles 9, 10, 11, and 14 of the ECHR. They further contended that the statutory phrase "those in the locality" under Section 59 of the Anti-Social Behaviour, Crime and Policing Act 2014 should not apply to occasional visitors, such as women who visit the clinic for its services. The High Court rejected these claims, finding that the PSPO was a proportionate measure to address the harm caused by the protests. The appellants then took their case to the Court of Appeal.

The Court of Appeal examined two primary issues: whether the phrase "those in the locality" could include occasional visitors, and whether the restrictions imposed by the PSPO were proportionate and consistent with the rights protected under Articles 9, 10, and 11 of the ECHR.

On the first issue, the court found that those in the locality could indeed include occasional visitors, such as patients attending the clinic. The court reasoned that restricting the definition to residents or regular visitors would undermine the purpose of PSPOs, particularly in cases where a transient population is most affected. The court also emphasised that the psychological and emotional harm caused by the protesters was not limited to the immediate moment but could have lasting effects on those visiting the clinic, thereby fulfilling the requirement of a continuing or persistent detrimental impact.

Regarding the engagement of Article 8 rights, the court concurred with the lower court’s finding that the right to respect for private and family life was clearly engaged. Accessing reproductive healthcare services, including abortion, is a deeply personal and sensitive matter, and the court held that the right to make such choices without undue interference falls under Article 8. The court acknowledged the evidence showing that the protesters' activities caused significant distress and harassment, justifying the PSPO as a necessary measure to protect the privacy and well-being of those seeking services at the clinic.

In balancing the competing rights at stake, the court conducted a structured proportionality analysis. While it recognised that the PSPO restricted the protesters' rights under Articles 9, 10, and 11, it found that these restrictions were justified and proportionate given the substantial harm caused by the protests. The court emphasised that all ECHR rights are of equal value and must be weighed against one another without giving automatic precedence to any particular right. In this context, the court found that the protesters' rights could not override the need to protect the rights of clinic users under Article 8, particularly when the PSPO was necessary to prevent ongoing psychological harm.

The court also dismissed the appellants' argument that a less restrictive PSPO could have been sufficient. It held that the scope of the order was appropriate given the severity of the harm and the need to ensure that service users could access lawful medical services without facing intimidation or distress. In this case, the court concluded that the PSPO struck a fair and proportionate balance between protecting the rights of clinic users and respecting the rights of the protesters.

In conclusion, the Court of Appeal upheld the PSPO, affirming that it was a justified and proportionate response to the harmful impact of the protests. The judgment highlights the complex task of balancing competing rights, especially in contexts involving sensitive issues like reproductive healthcare, and it underscores the importance of protecting the privacy and dignity of individuals seeking such services.