Florica Alina Dulgheriu & Andrea Orthova v The London Borough of Ealing & The National Council for Civil Liberties (t/a Liberty) [2019] EWCA Civ 1490
Court: Court of Appeal
Facts: The London Borough of Ealing implemented a PSPO to establish a safe zone around a reproductive healthcare clinic to prevent anti-abortion protests that were found to be harmful and distressing to those using the clinic's services. The appellants, associated with the Christian anti-abortion group Good Counsel Network (GCN), regularly protested outside the clinic with graphic images and confrontational tactics. They challenged the PSPO, arguing it infringed their ECHR rights and that the term "those in the locality" did not cover occasional visitors.
Issue: Whether the PSPO was compatible with the ECHR rights, specifically Articles 8 (privacy), 9 (freedom of thought, conscience, and religion), 10 (freedom of expression), and 11 (freedom of assembly), and whether it was proportionate.
Held: The Court of Appeal upheld the PSPO, finding it compatible with the ECHR.
Definition of "Those in the Locality": The court confirmed that "those in the locality" could include occasional visitors such as patients at the clinic. It reasoned that restricting the definition to residents or regular visitors would undermine the PSPO’s purpose, especially in transient populations affected by protests.
Engagement of Article 8 Rights: The court agreed that accessing reproductive healthcare, including abortion, is a deeply personal matter protected under Article 8. The PSPO was justified as a necessary measure to protect the privacy and well-being of those seeking services, considering the substantial distress caused by the protests.
Proportionality Analysis: The court conducted a structured proportionality analysis, balancing the protesters' rights under Articles 9, 10, and 11 against the rights of clinic users under Article 8. It found that the restrictions on the protesters were justified and proportionate given the significant harm and the need to protect the clinic users from ongoing psychological distress.
Alternative Measures: The court rejected the argument that a less restrictive PSPO would suffice, affirming that the scope of the order was appropriate to address the severity of the harm and ensure that service users could access medical services without intimidation or distress.
Key Judicial Statement: The court emphasised the need to balance competing rights and noted that all ECHR rights are of equal value and must be weighed against one another. It found the PSPO to be a fair and proportionate measure, striking an appropriate balance between protecting the rights of clinic users and respecting the rights of protesters.
💡Leveluplaw: This case highlights the complex balancing act courts must undertake when competing human rights are at stake, particularly in sensitive areas like reproductive healthcare. It underscores the principle that while freedom of expression and assembly are fundamental rights, they must be weighed against the right to privacy and protection from distress, especially in contexts where significant harm is evident.