Judge to rule next week on Orange Order challenge over banned Drumcree march

Garvaghy Road residents involved in peaceful protests over the flashpoint Drumcree parade should not be associated with any potential dissident republican gun attack on police, the High Court has heard.

Security intelligence also identified a high likelihood of loyalist paramilitaries attending Portadown in support of the Orange Order march, a judge was told.

Details emerged as judgment was reserved in a challenge against Secretary of State Sir Chris Bryant for banning the route along the nationalist Garvaghy Road.

Mr Justice Scoffield pledged to give his ruling next week.

Orangemen in Portadown are seeking to judicially review the decision to revoke their right to the disputed procession.

They further allege Chief Constable Jon Boutcher wrongly took into account political issues when he asked the Secretary of State to step in earlier this month.

Mr Bryant intervened amid a deepening stand-off over the Parades Commission’s original decision to approve the controversial march on September 27 for the first time since 1997.

Members of Portadown Lodge were prevented from completing the route after hundreds of people, including First Minister Michelle O’Neill and other nationalist political representatives, blocked the road.

By October 9, police believed all available, lawful and proportionate ways to facilitate completion of the parade had been exhausted.

It was assessed that the only remaining option would require a substantial public order intervention considered disproportionate and with an unacceptable risk of serious injury and wider unrest spreading across Northern Ireland.

PSNI intelligence provided to the Secretary of State indicated dissident republicans almost certainly attended the protests, and possibly have ready access to firearms in the Garvaghy Road area.

“It is possible in the event of police removing protestors, firearms may be used to attack police,” the assessment added.

But on day two of the case, counsel for the local residents, Denise Kiley KC, insisted the potential presence of other “sinister elements” has no impact on their human rights.

“The Garvaghy Road residents should not be either identified with, or held responsible for, the potential criminal conduct of any fringe elements of bad actors,” she submitted.

“Nor should their right to peacefully protest and object to the proposed parade be written off because of the presence of those elements.”

Ms Kiley argued that Mr Bryant got it right in balancing the competing entitlements of the residents and Orangemen who had assembled peacefully at Drumcree church.

She added: “The intelligence assessment also indicated loyalist paramiliaries were supporting the parade, and it was highly likely that increasing numbers of loyalist paramilitaries would attend the area.”

Rejecting claims the Secretary of State should have considered a less restrictive measure than an outright ban, the barrister contended that no alternative to walking down the Garvaghy Road was ever advanced before.

“The submission can’t credibly be made now, and it asks the court to adopt a position contrary to the established facts,” Ms Kiley added.

Portadown Orangemen allege that the ban, imposed under powers within the Public Processions (Northern Ireland) Act 1998, was irrational, contradictory and in breach of their rights to freedom of expression and peaceful assembly.

They had obtained a lawful determination which was then frustrated by unlawful conduct, according to their case.

Part of the challenge involves claims that the Chief Constable had no right to interfere in strictly political issues.

Earlier in proceedings a log note from a police commander about nine intelligence documents connected to the dispute was disclosed.

It included reference to both the presence of dissidents and “the feelings of the Provisional IRA”.

Pressed again on those comments, counsel for the Chief Constable, Peter Coll KC, explained it was intelligence information which does not impact on the legal challenge.

He confirmed the log note was not part of the intelligence document provided to the Secretary of State on October 9.

“There are other mechanisms in place by which any issues can be put to the Chief Constable about those matters, the Policing Board or otherwise It should be left at that.”

Philip McAteer, representing the Secretary of State, told the court he correctly banned the parade to protect the public interest.

“He had to contend with the fact there were still people there proposing to complete the procession,” the barrister said.

“He was properly empowered to prohibit it under Section 11 (of the Act).

According to counsel, the Orangemen’s challenge had resorted to “legal nitpicking”.

“(They are) driven to this by the sheer quality of the decision making and the sheer weight of the issues raised by the Chief Constable.

“When you step back, it’s hard to say that any other decision could have been made.”

Reserving judgment until next week, Mr Justice Scoffield said: “I will deal with this as quickly and efficiently as I can.”