Police chiefs were fully aware they had the power to stop illegal union flag protest marches, the Court of Appeal heard today.
In a rejection of stinging judicial criticism that a senior commander was confused about the law, counsel for the PSNI said a decision had been made to block the earliest of the parades.
Plans only changed after intelligence revealed loyalist paramilitary involvement in associated violence which could pose a risk to life, senior judges were told.
Outgoing Chief Constable Matt Baggott is seeking to overturn a ruling that the force wrongly facilitated un-notified and violent processions.
His appeal hearing was fast-tracked due to its operational importance for how police deal with contentious marches.
The case centres on the PSNI’s handling of weekly demonstrations at the decision on December 3, 2012, to restrict the flying of the Union flag outside Belfast City Hall.
In April the High Court held that Assistant Chief Constable Will Kerr, in charge of the operation around the protests, misdirected himself in believing he was hampered by law from stopping the parades and arresting participants.
Police were also found to have breached the human rights of a nationalist resident exposed to accompanying disorder.
Lawyers for the Short Strand man claimed he was besieged and came under attacks in his home as demonstrators made their way from east Belfast to the city centre during December and January.
Backing their case, High Court judge Mr Justice Treacy held that ACC Kerr was “labouring under a material misapprehension” in believing police were hampered from stopping the parades by either the Public Processions (NI) Act 1998 or human rights legislation.
During the period in question police did not behave pro-actively in relation to prosecuting those organising and participating in the parades, he found.
In his assessment the commander did not appear to have fully appreciated that an un-notified parade has the same status as one which takes place in defiance of a Parades Commission determination.
He also described the policing operation at that time as being characterised by “unjustified enforcement inertia”.
But senior counsel for the PSNI argued today that Mr Justice Treacy’s findings were flawed and unfair.
Tony McGleenan QC claimed the judge had not understood the operational approach of senior officers grappling with resource issues and trying to ensure no escalation in surrounding violence.
Even if decisions were taken to gather evidence rather than intervene and arrest at the time, he insisted police had a “pro-active, pro-charge” attitude towards those taking part in unlawful parades.
Detailing ACC Kerr’s running of the operation, the barrister said plans to halt any marches from reaching the city centre were in place immediately after the flag decision.
“There was no misdirection, the Assistant Chief Constable was fully aware of what his powers were in stopping the parades,” he said.
But intelligence that paramilitary groups had become involved and could pose a risk to life led to a switch in approach, the court heard.
Mr McGleenan said: “The character of the protests has changed from general community disquiet about flags to something much more sinister.
“That short sequence between December 4 and 8 should serve to show police were fully cognisant of what they could do in terms of their power, they were fully prepared to do it and they prepared resources.”
The three appeal judges were told the police operation around the flag protest cost more than £15 million, and resulted in large numbers of officers being injured in attempting to protect the community from violence.
“There’s no proper basis for any suggestion that there was any discriminatory treatment,” Mr McGleenan insisted.
He also likened the PSNI’s approach to how the force dealt with disorder during the Holy Cross Primary School dispute in Ardoyne, north Belfast in 2001.
Domestic and European courts all endorsed the police handling of that situation following a legal challenge by a pupil’s parent.
At one stage in the hearing Lord Chief Justice Sir Declan Morgan questioned whether police should enforce the law to prevent an un-notified procession with the same rigour as enforcement of a Parades Commission determination which bans a march.
Mr McGleenan replied: “There shouldn’t be a difference. But that does not exclude appropriate operational discretion.”
The appeal continues.