Significant Court win for loyalist bandsman blows a hole in Parading legislation
By Jamie Bryson
On 11th July 2020 a community band had applied- around a month in advance- to parade in the Kilcoole area of North Belfast. This came at a time when the Parades Commission were initially (unlawfully) failing to accept notifications. Following correspondence sent to the Commission on behalf of a number of bands, and supported by the then Attorney General John Larkin QC, the Commission had to back down on this issue and accept notifications.
This initial parade application was rejected, with the Commission seeking to once again reward nationalism by curtailing expressions of PUL culture. However, in a significant act of ‘lawfare’, on the 10th July the community once again notified- via submitting the appropriate online form- a parade on the 11th July. The Commission acknowledged receipt of this notification, although for present purposes this element (acknowledgement) isn’t even necessary to establish a defence in law.
Sadly, due to to time constraints, the Commission were unable to meet and consider the latter notification (devastating as this is, it is the Commission’s problem).
The requirements of Section 6 of the Public Processions Act 1998 require notification of a public procession to be given. The time scale for such notification is set out in Section 6 (2) of the Act which provides:
(2) Notice under this section shall be given—
(a)not less than 28 days before the date on which the procession is to be held; or
(b)if that is not reasonably practicable, as soon as it is reasonably practicable to give such notice.
As I pointed out to the Commission, and PSNI, on behalf of a number of bands in July 2020, if it is not “reasonably practicable” to provide notification 28 days in advance, then notification at any stage in advance is sufficient to discharge the obligations.
The PSNI and Parades Commission rejected this assessment and instead sought to prosecute a number of persons for taking part in the parade (despite notification having been given in advance pursuant to Section 6 (2) of the Act). it appeared that fearing the hole that would be blown in the Parades Commission regulatory framework they wanted to intimidate any bands out of utilising this loophole going forward.
It should be noted that given the PSNI when it suits them seek to prosecute people for failure to provide notification 28 days in advance, it is somewhat bizarre that during the Protocol protests senior PSNI officers were ringing around loyalists up to thirty minutes prior to protest parades asking them to submit a notification.
Perhaps realising the shaky legal ground upon which they were proceeding in relation to the Kilcoole bandsmen, initially the PSNI tried to strong-arm bandsmen into accepting cautions (and so avoiding the need for the matter to be determined in a court of law and thus exposing the loophole). However, a number refused and instead files were sent to the PPS.
Incredibly the PPS directed prosecutions, and even more remarkably a District Judge, Austin Kennedy, convicted two bandsmen. Demonstrating a remarkable misunderstanding of the relevant law, the District Judge stated “an application lodged with 24 hours notice was aimed at frustrating the legal process”.
The District Judge entirely failed to appreciate the effect of Section 6 (2) (b) and rather than addressing himself to the law as it is (loopholes and all), he read in his own preference for how he wished it was. In effect, Judge Kennedy decided to judicially plug a gap in the legislation. It is trite to point out that when it comes to legislation, it is for Courts to apply the law, not make it.
If there is a loophole in the legislation which leaves a door open, a citizen is perfectly entitled to walk through it. The powers that be may not like it, and it may well frustrate intent to regulate (or more normally eradicate) cultural expression, but nevertheless it is not unlawful.
An appeal in the Country Court (before a senior Crown Court judge) was held last week and convictions were quashed, which to anyone with even a basic understanding of the effect of Section 6 (2) (b) of the Public Processions Act 1998 would have seen was inevitable. The most remarkable thing is that the Parades Commission, PSNI and PPS (albeit in pursuit of their own inherent anti-PUL bias) and incredibly a District Judge at first instance got this most basic legal interpretation wrong.
In short, the broad and general test in Section 6 (2) (b) of “reasonably practicable” is now a clear invitation to the PUL community to circumvent the malicious regulatory efforts of the Parades Commission. So long as a parade participant or organiser can discharge the “reasonably practicable” burden (which is a very low threshold), then there can be no offence committed. As the old saying goes; use the head and keep the feet for dancing….
To take a hypothetical example, if a band only decided on Friday at 3pm that in pursuit of their ECHR Article 10 and Article 11 Rights that a Parade was necessary that night at 7pm, then naturally it would only become reasonably practicable to notify the parade once it was decided that such a parade would take place. Accordingly, providing notification as soon as possible after the 3pm decision (in this hypothetical scenario) would provide a complete defence pursuant to Section 6 (2).
In addition there is two yet further unargued points which are on a prima facie basis capable of inflicting yet further damage to the iniquitous Parades Commission: (i) there is a very arguable point that Section 6 (2) (b) fails to satisfy the quality of law requirements inherent within Article 7 ECHR (and so, construing it to the disadvantage of a criminal defendant would in any event be unlawful); and (ii) the effect of the Supreme Court judgment in Zeigler has yet to be applied in the context of the Public Processions Act 1998.
There will hardly be any unionist who is in the least bit concerned about “frustrating the legal process” by turning the regulatory framework inwards on itself when it comes to the Parades Commission.
As with the approach in 2021 to the Tigers Bay cultural bonfire, the 2020 act of lawfare on behalf of the loyalist people of Kilcoole has demonstrated the gains to be made by deploying the law to fight back against those seeking to use it to strangle every aspect of PUL culture and tradition.
The cultural war will ultimately be won or lost in the courts. Its time for the PUL community to join the fight.