Sandra Banks is a partner at Denton Hall.
The controversial issue of the export of live veal calves has been aired more than once in the High Court. In April, the court took the view that as the export of live animals was lawful, it was the duty of the harbour authorities to accept the trade and the duty of the police and others to ensure it was not impeded.
In the light of the conclusions reached under national law in that case, the court decided it was unnecessary to consider the European implications raised. In a more recent case, R v Chief Constable of Sussex ex parte International Trader's Ferry, the same court addressed both domestic law and community law, and came to two radically different decisions.
The case concerned the application of International Trader's Ferry (ITF) to quash two decisions taken by the Chief Constable of Sussex. The first was that the port area in Shoreham should be policed on only two consecutive days a week. The second was that police would turn back livestock vehicles bound for Shoreham if it was thought a breach of the peace would occur on the days when police cover was not provided.
The court dismissed ITF's application on the grounds of domestic law but upheld its application based on community law and squashed both the Chief Constable's decisions.
In its judgment, the court put much emphasis on the principle of proportionality, well established in community law, whereby a public authority may not impose obligations on a citizen unless they are strictly necessary in the public interest to attain the purpose of a measure. The most striking point about the principle of proportionality is that it leaves a great deal to the judgement of the court.
It is interesting to note that in deciding ITF's application based on domestic law the court found the Chief Constable's measures were not disproportionate by holding they were not "unreasonable" in the context of UK public law, the effect on the level of policing and the crime rate in other parts of Sussex. However, the application of community law, produced the opposite result.
We understand the judgment is going to appeal, so there is a chance the community law decision could be reconsidered. Such a divergence on how the Chief Constable is to police his area hardly conforms to the subsidiarity principle that decisions should be made as close as possible to the scene of the action.