Northern Ireland's Parades Commission failed to “properly weigh” what police told it about the potential for disorder if the Drumcree parade was given the go-ahead, Court of Appeal judges have been told.
A barrister for residents of the predominantly nationalist Garvaghy Road in Portadown told the court the commissioners had reached an “irrational conclusion” in permitting the Orange Order parade along the Troubles flashpoint for the first time in 28 years.
Denise Kiley KC made the argument at the start of the residents' fresh court challenge against the commission's decision.
Residents' challenge
The residents say the Parades Commission adjudication body “materially misdirected itself” on the police assessment of the potential for disorder around the event and that the commission had not given an “accurate representation of the evidence” received from the PSNI in its decision.
The residents are challenging the decision of a High Court judge – made in the early hours of Sunday September 27 – to refuse leave to apply for a judicial review of the commission's determination to permit the parade down the Garvaghy Road later that day.
Orangemen have attempted to commence their parade several times in the nine days since, but have been halted by police on each occasion amid concerns of disorder if it proceeded down the Garvaghy Road, which has witnessed a series of mass demonstrations and protest rallies.
Police assessment questioned
Ms Kiley said the commission's assertion that there was no specific information from police about a risk of violence did not fully reflect what a senior commander had told it.
The barrister said PSNI Assistant Chief Constable Ryan Henderson told the commission that while police had no clear intelligence about any planned disorder he had also stressed that officers were dealing with an “unclear picture” and that, as a result, police were planning for various scenarios, from a peaceful passing of the parade to an outbreak of violent disorder.
Ms Kiley said the commission's subsequent conclusion that there was no specific information about the prospect of disorder was “only part of the picture”.
“It doesn't go on to record the uncertainty and the fact that the position remained unclear,” she said.
“It is clear that what the police were telling the commission was, 'This is unclear, it's uncertain and we are preparing for all eventualities'.”
She said the commissioners “didn't properly understand the police assessment” and this impacted their decision to permit the parade.
Commission's defence
Dr Tony McGleenan KC, representing the Parades Commission, told the Court of Appeal that the determination to permit a limited parade down the Garvaghy Road should be read in its entirety.
“It is a detailed 31-paragraph written analysis,” he said.
“And it has to be read in its totality. And there is a grave danger of cherry-picking sentences here and sentences there to suggest a wrong legal test or a misdirection, or that something hasn't actually been considered.”
Mr McGleenan said police had given an assurance to the commissioners that they had the capacity to deal with any disorder that may have been triggered if a parade was permitted.
He insisted the commission was “fully briefed” by police on the uncertainty around what might happen.
“They met with the PSNI on the 23rd (September) at a lengthy meeting with them. They were read intelligence briefings. They were briefed about the police resource and their ability to contain any disorder or reaction that occurred. So they have all of that.”
Stand-off continues
Monday marks the ninth day of the stand-off which has seen the Orangemen try numerous times to begin the march, but the road remains blocked by residents.
After being again denied permission to march by the PSNI at lunchtime on Sunday, Portadown District master Nigel Dawson told the Orangemen they had the support of the community, and added: “We continue to abide by the law and continue to show that every single minute and every single hour of the day since we won the court case.
“And of course we still await – and it is important we say this, that we have a police service in Northern Ireland that are at this moment in time unable or unwilling to police a court judgment.”
Sir Chris, who had appealed for calm before the weekend, said he was “pleased” that events had passed “without major incident”.
He said: “I continue to speak with people of goodwill on all sides and believe a mutually agreeable solution is still possible if people can show leadership based on openness, compromise and magnanimity.”
After the rally in support of the residents on Saturday, PSNI Assistant Chief Constable Anthony McNally said anyone blocking the Garvaghy Road will still be treated as “participating in an unnotified and therefore illegal protest”.
The senior officer said evidence-gathering is continuing and anyone found to have broken the law “will face criminal justice consequences”.
