Landmark judgment on PSPO Regime has Significant Repercussions for Freedom of Expression

by | Aug 20, 2018

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About Patrick Burfitt

Patrick Burfitt is a recent Law/Modern History graduate from Macquarie University, Sydney. He has a keen interest in freedom of expression, international law and human rights.


Patrick Burfitt, ‘Landmark judgment on PSPO Regime has Significant Repercussions for Freedom of Expression’ (OxHRH, 20 August 2018 <> [date of access].

On 2 July 2018, the High Court handed down judgment in Dulgheriu v London Boroughof Ealing [2018] EWHC 1667 (Admin). The case provides crucial insight into the ever lowering threshold at which freedom of expression can be curtailed in the United Kingdom. The judgment rejected a challenge to an Ealing Public Spaces Protection Order (PSPO) which bans any expression concerning abortion within 100 metres of a Marie Stopes abortion clinic.

PSPOs have been opposed by the group Liberty on the basis that they are too widely drawn and the Manifesto Club see them as a major threat to public liberty.

The Ealing PSPO was instituted to address harassment and intimidation of women outside the Marie Stopes abortion clinic in Ealing. To achieve this, it criminalises a number of broadly worded activities, including:

“Protesting, namely engaging in any act of approval/disapproval or attempted act of approval/disapproval, with respect to issues related to abortion services, by any means. This includes but is not limited tographic, verbal or written means, prayer or counselling.” (Emphasis added)

The issue with this PSPO is that, under the ostensibly noble auspice of protecting women, it represents an unprecedented infringement on the right to freedom of expression – which includes the right to give or receive information.

Freedom of expression was curtailed on the basis that the right to privacy of the women attending and leaving the clinic came under Article 8 of the European Convention on Human Rights (para 97). This right was engaged on the basis that “[being] the focus of open public attention, often at the very moment when sensitivities are at their highest, is an invasion of privacy even where it occurs in a public place” (para 61).

The right to privacy has been applied here at a far lower threshold than the cases that were cited to support the ruling (paras 57-60), which all discussed the right of privacy in the context of recorded footage or images. In engaging the right to privacy at such a low threshold, the ability to distinguish innocuous expressions (such as offers of support and prayer) from harassing and intimidating behaviour (such as shouting, filming and taking photographs) is lost. The judgment appears to adopt the view of Ealing Council that “the location of the groups, independently of what they do whilst they are there is a problem in and of itself” (para 96). Furthermore, the judgment states that activities may be criminalised by a  PSPO regime “without having been proven, particularly when considered in isolation, to be nocuous” (para 55).

Two key repercussions emerge from this judgment. The first is that those who would welcome the opportunity to engage with people offering support at the gates of the clinic are now denied this opportunity (this is briefly considered in the judgment at para 61).

Alina Dulgheriu, the applicant in the case, states that she was about to have an abortion but changed her mind when she was offered financial, practical and moral help outside a clinic. She now has a six-year-old daughter and offers the same support to women outside abortion clinics. Under the new PSPO however, people offering support have to stand 100 metres away from the clinic, which effectively eradicates the ability for women attending the clinic to engage with them.

The second repercussion is that the judgment provides a precedent that will allow protest groups to deliberately contribute to a breach of privacy in order to attract the necessary grounds for the infringement upon freedom of expression they seek in justifying a “buffer zone”.

The simultaneous presence of the pro-choice group ‘Sister Supporter’ and the pro-life group ‘Good Counsel Network’ was found to have created an atmosphere of tension (para 6). This atmosphere contributed to Sister Supporters’ cause which was to establish a buffer zone that excluded everyone. This means that buffer zone advocates can contribute to creating a problematic location, which in turn can lead to the grounds for justifying a PSPO being established.

It is typically the expression of shocking ideas that calls into question the value of freedom of expression. This judgment marks a new frontier in which expressions, which have been acknowledged as innocuous and would in fact be welcomed by some women, can be criminalised under the PSPO regime.


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  1. dee

    First, you seem to be assuming that there is no support in the clinic for continuing a pregnancy. Counselling is provided on all options if women are unsure of their decision. Across the UK, 15-20% attend a clinic but do not procede to an abortion, and there is no evidence that anti-abortion groups make any difference to that number. Few women want to discuss their private lives with unqualified strangers in the street, and the professional staff in the clinics can direct staff to support to continue a pregnancy if that is women’s decision.

    Second, the judgement specifically relates to healthcare privacy, and so it is unlikely that this could be used in many other contexts. Moreover as the judgement made clear, whilst a PSPO isn’t perfect, there were no other legal avenues at this time to stop the harassment.

    Third, you seem to imply that it was the conflict between the pro-choice and anti-abortion group that was the problem. I can only assume that you have not read the Council’s report when they clearly show that Council officers were harassed by the anti-abortion groups in the course of their investigation, being subjected to behaviour that they denied ever happened.

    • Alex

      No evidence was presented of harassment, for which laws already exist. Nobody has ever been prosecuted on that charge, nor prosecuted for verbal or sexist abuse, kidnap, threats or actual bodily harm. To stand on a street and pray can be no more illegal than to simply walk down that same street- first one would have to define what ‘prayer’ is, and whether somebody simply standing in silence is ‘praying’, or simply standing in a public place. What was of course lacking in all this discussion is that abortion in British law remains a presumptively criminal offence in all cases. Abortion is not ‘legal’ as the left would like to state, but a crime; the 1967 act provided for a ‘legal defence’ for an abortion if certain specific conditions were met on the agreement of two doctors acting ‘in good faith’. It is the same mechanism used to justify reasonable force when defending oneself from attack by an intruder: one doesn’t have any legal right to attack or assault them- far less kill them- but ‘reasonable force’ could be used a legal defence in court that could limit the possibility of prosecution. It is a remarkable situation we find ourselves in when a presumptively criminal offence is given such protection in law, and I can think of no other situation where a potential crime is afforded such legal privilege.

      • Morag Marinoni

        nullThanks Alex for reminding Dee that abortion is actually illegal except under special circumstances. Everyone in the UK has forgotten this. I cannot get my head around the totalitarian way, really Stalinesque, that has been used to force abortion onto the UK people as a right of some kind. What about a baby’s rights?

    • Morag Marinoni

      I have just spoken with a woman who deliberately went into an abortion clinic in England to check what she would be advised. She says:
      Quote: “We know that some women who go to abortion centres have not fully made up their minds as to what they want which is why it’s so important that we offer alternatives outside as we do. The problem is that even those who think they know what they want often don’t have all the facts to hand, eg: they don’t know about the development of the baby, the physical/mental risks connected with abortion, the help available to them if they continue with the pregnancy etc so their decision isn’t an informed one – the abortion center will not inform them of this information.
      Women themselves tell me they do not receive counselling at the abortion centre. Also I have been in one myself just to see how I would be treated and there was no offer of counseling whatsoever.” End quote

    • John Airey

      Who provides the counselling Dee? Not the clinics that for sure. In fact a proposal to provide counselling to women but foundered on the basis that there was no-one independent to give such counselling.

      The real reason for the PSPO was that it was affecting the clinic’s business model. Many clinics worldwide have closed because women have been turned away. This was never what PSPOs were intended for and the way in which Ealing Council carried out its consultation is highly questionable.

      The ramifications of this PSPO are quite dramatic. Any group can be stopped from entering any area now.

  2. Mrs Morag Marinoni

    Dear Sir/Madam,

    What harassment of council offices?! Letters to query councils’ actions are a legitimate and legal way for all UK citizens to participate in local goverance.

  3. Neil

    I was counselling a lady who was encouraged by her family and also her clinic that every body does it and it is a fairly common procedure, but they will accept whatever decision the person makes. I felt the girl was overwhelmingly pressured into having an abortion. There was nothing wrong with her, she was financially well off to look after the child, the argument of emotional pressure and not being ready to have a baby won the day. And we now have an emotionally scarred individual.

  4. Brian Crowe

    Thank you Patrick Burfitt, for this clear and reasoned article. I agree with all you say, and particularly the point you make In the third paragraph from the end. I remember seeing a video recording of events in which pro-choice/pro abortion groups of women, aggressive in dress, appearance, and behaviour, were clearly the ones threatening the peace, not the pro-life group. This may have been a video of the Ealing case, but I cannot be sure. It clearly confirms your statement that the law can be, and no doubt will be, manipulated by those wishing to ban pro-life presence at abortion centres. The reality is that the Clinics lose money if possible clients decide against abortion, they have not got the interests of women at heart! Many, if not most of the pro-choice brigade, are left-wing/Marxist/anarchist supporters, prepared to support any legislation that undermines free speech and democracy.

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