Select Committee on Northern Ireland Affairs Appendices to the Minutes of Evidence


Supplementary Memorandum submitted by the Northern Ireland Human Rights Commission


  The introduction of the Public Processions (Northern Ireland) Act in 1998 removed the power of the police to re-route or impose conditions on parades. Although the police retain the authority to constrain static protests under the 1987 Public Order Northern Ireland Order, the Parades Commission now has the authority to impose restrictions and conditions on contentious parades.

  However, the police still have a primary responsibility to ensure that people are able to exercise their basic human rights, that peaceful and legal parades are able to take place, that lawful protest is possible and that public order is maintained. To do so the police have to try to strike a balance between the sometimes competing and conflicting rights of individuals and communities and they have to exercise discretion in their dual responsibility to uphold the law and maintain order.

  The police also have to balance their authority to use force to maintain public order with their responsibility to protect the right to life.

  In this following section we begin by reviewing the general responsibilities of the police with regard to managing public order. We then discuss the case law of the European Court of Human Rights to consider how they have clarified the role and limitations of the police. Finally we address the issue of the right to life and the use of force.

4.1  Policing and Human Rights

  The Patten Report on the future of policing in Northern Ireland stated clearly that the fundamental purpose of policing should be ". . .the protection and vindication of the human rights of all" (Patten 4.1). In saying this the report was reiterating the themes of two primary documents relating to police ethics and principles, the Council of Europe Declaration on the Police (1979) and the United Nations Code of Conduct for Law Enforcement Officials (1979). Although neither of these is a legally binding document, they nevertheless set down basic principles which establish the framework for policing and the boundaries of police behaviour and activities which are deemed to form the basis for law enforcement in all societies.

  The Declaration on the Police does not refer directly to human rights but rather defines the duty of the police as being to protect their fellow citizens against violent, predatory and other harmful acts, and to act with integrity, impartiality and dignity. The UN Code of Conduct is more explicit, however, and in Article 2 states that law enforcement officials "shall respect and protect human dignity and maintain and uphold the human rights of all persons".

  It is clear therefore that the Patten Report does no more than reflect international standards when it emphasises the importance of human rights for policing practice.

  The fact that the Code of Conduct refers to both respecting and protecting human dignity implies a positive expectation on the police. It indicates that they not only have a responsibility to respect people's human rights, but also a duty to protect people's rights from infringement by others and to ensure that people are able to exercise their rights. Human rights are therefore fundamental both to practical notions of democratic policing and also to policing in a democratic society.

  However, the range of duties and responsibilities that are central to police practice can create contradictory demands—between facilitating the exercise of people's rights and protecting others' rights from infringement. As we have discussed, human rights are rarely absolute; there is normally a need to find a balance between exercising one's rights without unduly infringing other people's rights. For basic political rights such as freedom of assembly or freedom of expression, which are often exercised in public, it falls on the police to impose a balance between competing rights. The complexity involved in trying to achieve a balance between competing rights is further complicated by the fact that the police also have a primary responsibility to maintain and protect public order.

4.2  Human Rights and Public Order

  A key factor in the ability of people to exercise their rights is the establishment and maintenance of a degree of public order that provides the safety and security for people to express and demonstrate their opinions and ideas on a range of social and political issues. This is made explicit in Article 28 of the Universal Declaration of Human Rights (1948) which states that "everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realised."

  The police therefore have the responsibility to protect the basic social conditions that enable people to exercise and enjoy their fundamental human rights. But the police are in a potentially contradictory position in so far as they also have the power and authority to restrict human rights to maintain public order. They have the power of arrest and the power to use force, both of which involve a restraint or an imposition on the rights of others. However, police powers to restrict rights are not unlimited and they cannot be used indiscriminately. Article 29 of the UDHR states:

Article 29:  UN Universal Declaration on Human Rights

  Everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedom of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

  Rights can be restricted to enable other people to exercise their rights. They can also be restricted to ensure other people's rights are not unduly curtailed and they can be restricted to ensure that public order is maintained. But, as Article 29 clearly states, this must be in accordance with the law.

  The European Convention similarly allows restrictions to be imposed on freedom of assembly as long as they are both prescribed by law and "necessary in a democratic society". However, the Convention provides a wider range of reasons for which the state, and in practice the police, can restrict the exercise of human rights. These are: the interests of national security and public safety, to prevent crime or disorder, for the protection of health and morals or to protect the rights and freedoms of others (see Chapter 2.3.8 above).

  In practice police forces in a range of European countries have relied on fear of public disorder as their primary justification for imposing restrictions on assemblies or protests. In the majority of cases the European Court has accepted that the fears expressed by the police over the threat of public disorder have been reasonable and therefore form an acceptable basis for imposing restraints on assemblies and protests. But this is by no means unproblematic because public order is itself an ill-defined and variable concept. In normal circumstances blocking a main road with the attendant disruption to traffic and public transport could constitute a breach of public order but on some occasions it is considered acceptable. Blocking a road to try to sell people things would generally not be regarded as acceptable behaviour, but blocking a road as part of a political protest or a cultural event is widely accepted as a legitimate part of democratic society.

  International understanding and practice diverges quite considerably on the issue of blocking roads. In the United States and Canada the police regard it as reasonable to restrict parades and demonstrations in order to reduce disruption to traffic and businesses. In contrast the Israeli Supreme Court decided that people had as much right to use roads for demonstrations as they did for driving on. The acceptable limits of public order can and do vary and in practice will be dependent on the location, the time and the nature of the event or the behaviour.

  Although the Parades Commission issues determinations on which rights and whose rights should have priority with regards to parades, in many cases it is still left to the police to determine what action and behaviour is reasonable in the circumstances. Police officers will be expected to use their discretion to decide between competing claims of human rights, of unreasonable restrictions and the needs of public order.

4.3  Policing Freedom of Assembly

  We have already considered examples in which the European Court of Human Rights has addressed the issue of the limits to the right of freedom of assembly. In this section we review what the Court has said about the role of the police in the management of public assemblies and the right to protest. There has been only one case that has focused in any detail on the role of the police in facilitating these freedoms. The remainder of the cases to be considered have looked at the legitimacy of police intervention to prevent disorder.

  In general the European Court has taken a position which has been sympathetic to the role of the State, and its agents, the police, in managing public assemblies and protests. The Court has tended to accept claims made by the authorities about concerns for public order and the limits of their ability to restrain outbreaks of violence. It has therefore broadly accepted that restrictions should be imposed in advance of an event rather than expect the police to respond to unfolding and unpredictable situations. In the case of Plattform A­rzte für das Leben v Austria (1988), the European Court noted that the state has a responsibility to ensure that both the rights of demonstrators and counter-demonstrators should be met where possible. But is also noted that the right to counter-demonstrate does not extend to stopping a lawful assembly and the state has a "positive obligation" to ensure peaceful demonstrations can take place. This means that the state has a responsibility to protect demonstrators from their opponents or from any counter-demonstrations.

  However, at the same time the Court also noted that while the state should take "reasonable and appropriate measures" to allow lawful assemblies to take place, it cannot guarantee this absolutely. Instead they stated that the police must strike a balance between intervention to protect a lawful assembly and intervention that will provoke some form of violence. In the Plattform A­rzte case the applicants complained that the police had not done enough to protect their processions and rally which had been disrupted by protesters who chanted and threw missiles. The Court noted that while there had been disturbances these had not stopped the events from being concluded and the action taken by the police had been reasonable in the circumstances.

4.4  Policing protests

  There have been a limited number of cases where the Court has sought to establish the limits to legitimate protest against the actions of others and has thus addressed the limits to police action in managing protests. In Steel and others v UK (1998) the Court distinguished between legitimate peaceful protest and protest which involved disrupting the lawful activities of others. It found that the police had not infringed the rights of protesters when they arrested them in order to stop them disrupting a grouse shoot or to prevent them from disrupting building work on a new motorway. However, the Court found that the police had infringed the rights of three protesters who were holding a banner and handing out leaflets objecting to the arms trade outside a centre hosting a conference on military helicopters.

  In none of these instances did the protesters behave violently but the Court accepted the argument that the disruptive behaviour at the grouse shoot and road protest had the potential for provoking violence and it was therefore reasonable for the police to arrest the parties involved.

  A similar line of reasoning was accepted in the case of Chorrherr v Austria (1993). In this case the police arrested the applicant who was wearing a placard and handing out leaflets opposing the arms trade at a military commemoration. The police claimed that he was causing annoyance to spectators and his behaviour was threatening to disturb public order. The applicant on the other hand claimed he was simply exercising his right to freedom of expression. The Court again found for the State and agreed that it was "reasonable and appropriate" for the police to arrest the man in these particular circumstances.

  The Court has therefore established that while there is a right to peaceful protest this does not extend to the right to provoke others to violence. This implies that those engaging in protest should be mindful, not only that their own behaviour remains peaceful but also, that they have a responsibility to refrain from actions that might produce a violent reaction from others. Furthermore, the police have the authority to stop a protest that they believe may produce a violent response.

  However, it is also clear that there are limits to the restrictions that the police can impose on protesters. This was revealed in the admission by the Metropolitan Police that they had acted unlawfully when they limited protests by the Free Tibet Campaign during the visit to England by the Chinese Premier in October 1999. During the visit the police removed flags and banners carried by peaceful protesters and used their vans to block the protesters from the view of the Chinese visitors. After an internal enquiry the police conceded that their actions had been unlawful.[222] This example resonates with the case of Kivenmaa v Finland (1994) before the UN Human Rights Committee, where the Committee found a violation of the applicant's freedom of expression after the police removed a banner she was waving in protest during a visit of the Kenyan President to Finland. In neither of these examples was the threat of disorder regarded as significant enough for the police to restrict the protest.

  In another case, G v Federal Republic of Germany (1989), the European Commission agreed that the police were within their rights when they arrested the applicant for blocking a public road during a protest. Once again he was involved in a peaceful demonstration but the Commission decided that the protest was causing more disruption than was reasonable and would normally arise in the exercise of the right of freedom of assembly. A similar decision over limits of the right to disrupt traffic during a protest was taken in case of F v Austria (1989) and in the case of H v Austria (1989) the Commission decided that the police were acting reasonably in dispersing an assembly that was causing considerable obstruction to pedestrian traffic.

  In each of these cases the decision of the Commission seems in part to have been determined by the length of the protests. In the case of G the report suggests the protesters had blocked the road a number of times during the day for a short period; in F the applicant had intended to hold a static protest for a full day; and in the H case the protest had continued for over a week and was growing in scale and level of disruption. In each of these cases the protest and the associated disruption had been permitted to continue for some time before the police intervened.

  In all three cases the Commission effectively agreed that it was the responsibility of the local police to decide what was an acceptable level of disruption to other people and when it was "necessary in a democratic society" to disperse the protest or if necessary to arrest the participants.

  A further issue raised by the Chorherr and Steel cases was that the Court also ruled that the police had not acted in a disproportionate manner in detaining the applicants for some considerable time after their arrest. In the case of Steel (who disrupted the grouse shoot) the applicant was detained for 44 hours because she refused to be bound over to keep the peace, while Chorrherr and the anti-roads protester, in the Steel case, were detained for three and a half hours and 17 hours respectively. The State argued successfully that in each case the extended period of detention was necessary to prevent the applicants from resuming their protests and causing further breaches of the peace.

  It is clear therefore, that the police have a responsibility to facilitate peaceful protest but, also some considerable latitude to determine both what is reasonable and how far they can impose restrictions to prevent disorder.

4.5  Use of Force by Police Officers

  The general principles governing the use of force by police officers are addressed in a range of relevant instruments. Article 3 of the UN Code of Conduct states that law enforcement officials may use force "only when strictly necessary and to the extent required for the performance of their duty" and that this should be regarded as an exceptional measure and proportionate to the circumstances. The Council of Europe Declaration on the Police states in Article 12 that police officers are prohibited from using more force than is reasonable. This issue is dealt with in more detail in another United Nations instrument entitled Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990). This contains 26 articles relating to the use of force and firearms which elaborate on the provisions contained in the legally binding conventions. Principles 12-14 of this document relate to "Policing Unlawful Assemblies" and these state:

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials

  12.  As everyone is allowed to participate in lawful and peaceful assemblies...Governments and law enforcement agencies and officials shall recognise that force and firearms may be used only in accordance with principles 13 and 14.

  13.  In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.

  14.  In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases except under the conditions stipulated in principle 9.

  We will consider the issue of the use of lethal force in the following section. Here we will concentrate on issues related to the non-lethal use of force in the policing of assemblies. The Principles distinguish between violent and non-violent assemblies and also between levels of policing such events that range from avoidance of the use of force through use of minimal force to the use of firearms and lethal force. While the texts are clear that use of force should be avoided wherever possible, force can be used in certain situations. However, it should always be an exceptional practice rather than a norm. But police officers have to assess the appropriateness, the proportionality and the necessity of the use of force within the context of the specific assembly or protest. This is particularly pertinent in situations where they are policing or attempting to disperse an illegal but non-violent protest and where there is a temptation to use some degree of force to move people who are engaged in passive disobedience.

  The cases referred to in the previous section are all examples where the police used peaceful or non-violent means to constrain a protest or to arrest individuals. But in recent years there have been a number of occasions when the police have resorted to the use of force in situations that suggest that the Principles might have been contravened. Several major assemblies have provoked an aggressive or violent responses from the police including anti-capitalist protests in London in June 1999, the protests against the World Trade Organisation in Seattle in November 1999, in London in May 2000 and in Prague in October 2000, protests against the World Bank in Washington DC in April 2000, and in response to football hooliganism in Belgium during Euro 2000 in June 2000. In many of these situations there have been accusations that the violence of protesters or supporters was as much in response to police action to disperse peaceful protests, as the police action was in response to violence by the protesters.

  There have also been a number of occasions in relation to the recent disputes over parades when the RUC has resorted to the use of force to control or constrain crowd violence, to disperse protests or to enable lawful parades to take place. There have been other occasions when the police have used force to disperse unlawful but non-violent protest demonstrations during the same period, for example during the Tour of the North in June 1996, on the Garvaghy Road in July 1997 and on the Ormeau Road in August 1999. In each of these situations there have been accusations that the force used to remove non-violent protesters from blocking roads was disproportionate to the activities of the protesters. While concerns over the policing of such protests have been raised by groups such as the Committee on Administration of Justice and Human Rights Watch, the various Courts of Human Rights have yet to be asked to respond to accusations of the disproportionate use of force by the police in controlling riots or violent assemblies. However, the European Court of Human Rights has been asked to address issues related to the use of force in the context of Article 3 which provides that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment".

  In both Tomasi v France (1992) and Ribitsch v Austria (1995) the Court found for the applicants after they had been subjected to physical abuse which amounted to inhuman and degrading treatment while in police custody. In the Ribitsch judgement the court stated that "in respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention" (para 38). While in A v United Kingdom (1998) the Court found that physical abuse of a child by a step-parent amounted to a breach of Article 3. The Court also noted that while ill-treatment must attain a minimum level of severity if it is to fall within the scope of this Article, that minimum level "is relative: it all depends on the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim" (para 20). Although these and other similar cases have been related to issues of ill treatment during detention or through the use of corporal punishment, there may equally be a relevance in relation to cases where the police use force to disperse peaceful assemblies or to arrest people engaged in some form of protest.

4.6  Right to Life and the Use of Force

  The various texts and instruments set down clear limits to the use of force but they also make it clear that the policing of assemblies, and violent assemblies in particular, is one situation where force and firearms might well be used, albeit within prescribed circumstances. The implications are that the use of such force should be a last resort in policing crowds and that such force should be the minimum necessary to exert control and to assist the restoration of order.

  Principle 9 of the UN Basic Principles on the Use of Force and Firearms limits the use of firearms to self-defence, defence of others against imminent threat of death or serious injury, to prevent a particularly serious crime involving threat to life and to facilitate the arrest, or to prevent the escape of someone presenting such dangers. It also states that firearms may only be used when less extreme means are insufficient. Finally it states that intentional lethal force may only be used when strictly unavoidable in order to protect life.

  Each of the major human rights treaties affirms that the right to life is a fundamental human right.

    —  The Universal Declaration (Article 3) states "Everyone has the right to life, liberty and security of the person".

    —  The United Nations International Covenant on Civil and Political Rights goes further by stating (in Article 6) that "every human being has an inherent right to life. This right shall be protected by law. No one shall arbitrarily be deprived of his life".

    —  The European Convention expresses similar sentiments. Article 2 states that "Everyone's right to life shall be protected by law".

  However, the European Convention also makes it clear that right to life is not unconditional. In a secondary clause it sets down a limited range of situations in which the deprivation of life will not be regarded as a breach of the right to life, provided that the use of force is "no more than absolutely necessary". The three situations are:

    —  in the defence of any person from unlawful violence

    —  to effect a lawful arrest or to prevent the escape of a person who has been lawfully detained, and

    —  for the purpose of quelling a riot or insurrection.

  This does not mean that it is legitimate for the authorities to intentionally kill someone in these circumstances, but rather that the use of force, which results in death in these limited contexts, will not be regarded as a breach of the right to life. But it is also clear that the police may use lethal force providing it is "absolutely necessary" and such force will only be determined as absolutely necessary if it is both proportionate and reasonable in the specific circumstances.

  The parameters governing the use of force have been addressed in the small number of cases before the European Court relating to the killing of individuals by the State authorities, and which have direct relevance to the matter of managing public disorder. The most obviously connected case is Stewart v UK (1984). This was related to the death of a 13 year-old boy, Brian Stewart, who was killed by a plastic baton round fired by a soldier in Belfast in 1976. Local witnesses claimed the soldiers fired the plastic bullet in response to being stoned by a small group of young children. The soldiers claimed that they were being attacked by a crowd of about 150 rioters and fired a plastic bullet as a warning. When this had no effect a second bullet was fired, but the soldier claimed he was hit by two missiles as he took aim and fired and the baton round hit Brian Stewart by accident.

  In making its decision the Commission accepted the version of events given by the soldiers rather than the one given by local people. They also noted that the use of baton rounds was controversial and acknowledged that it was a dangerous weapon. However, they felt that in the circumstances prevailing in Northern Ireland at the time, in which the soldiers might well face the threat of a sniper attack, the use of plastic bullets was absolutely necessary to quell the riot.

  In spite of this judgement both the UN Committee Against Torture and the Committee on the Rights of the Child have expressed their concern about the use of plastic baton rounds as an appropriate weapon for the control of public order. Although plastic bullets continue to be used in Northern Ireland, the Patten Report recommended that "an acceptable, effective and less potentially lethal alternative" be sought and that a wider range of equipment be provided for police officers to reduce the current reliance on plastic baton rounds.

  In the Stewart case, and in two other prominent "right to life" cases McCann and others v UK (1995) (over the killing in Gibraltar of three members of the IRA by the SAS) and Andronicou and Constantinou v Cyprus (1997) (where police killed an armed man and his girlfriend whom he was holding hostage in the course of trying to free her), the Court has taken the side of the State and accepted the necessity of the use of lethal force where police officers or soldiers have claimed that they feared for their own lives. In a similar situation in the USA, four New York Police Department Officers were acquitted of murder over the killing of Amadou Diallo, whom they shot because they claimed they thought he was reaching for a gun. The Court has thus tended to prioritise the need to address the fears of operational law enforcement officials in many of the "right to life" cases.

  At the same time the Court has been critical of the planning that has gone on behind some of these operations and the failure of the police to take action that could have reduced or prevented the need to use force. In McCann it was accepted that the State could have neutralised the IRA operation earlier and reduced the likelihood of the need to use lethal force. In Andronicou there was criticism of the failure to achieve a mediated outcome in the hostage situation and in another recent case, Ergi v Turkey (1998) the Court was again critical of the planning of a security operation which left an innocent civilian dead.

  It is therefore clear the police do have the authority to use proportionate and reasonable force in specific circumstances. However, a recent case has also re-affirmed that the state does have a positive obligation to protect life. In Osman v United Kingdom (1998) the Court stated that: "Article 2:1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction"[223] the judgement went on to say that "it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge".[224] This might well mean that the preparation and planning of policing operations is brought under further consideration in cases related to the use of lethal force. But, at the same time, it might well also raise issues about such matters as the quality of the training of police officers in non-confrontational conflict management techniques and in alternatives to the use of force.

  Thus, although the European Convention permits the use of force by law enforcement officials, the Court has indicated a greater willingness to scrutinise the wider context of the planning and preparations of operations where lethal force is used. While the fears and judgements of operational officers may continue to be taken at face value in contentious situations involving the use of lethal force, these developments suggest that there will be an ever greater responsibility on police agencies to train their officers and to prepare and plan operations so as to reduce the possibility of the need to rely on force to resolve problematic situations.

4.7  Conclusions

  1.  The police have a dual role to protect people's rights and to adjudicate between those rights. They therefore have the responsibility to facilitate the exercise of human rights and the authority to restrict such practice. This is particularly pertinent with regard to issues related to freedom of assembly and maintaining public order.

  2.  The European Court of Human Rights has confirmed that the state has a positive obligation to enable peaceful demonstrations to take place and should take reasonable and appropriate measures to facilitate this. They also have to balance between protecting a lawful assembly and provoking violence themselves in trying to maintain order.

  3.  The police have the authority to prevent or to disperse any assemblies that might create unreasonable disruption, that threatens to disturb public order or that have the potential to provoke violence from others because it interferes with their rights and freedoms.

  4.  In dispersing assemblies the police should always attempt to use peaceful means in the first instance. The police do have the right to use force to disperse assemblies but such force must always be both proportionate and necessary in the circumstances. Police should only use firearms to disperse violent demonstrations in so far as it is necessary for self defence, to protect others from threat of death or serious injury, or to facilitate the arrest or prevent the escape of someone presenting such dangers.

  5.  The police also have a positive obligation to protect life and they have a responsibility to ensure that all operations are prepared and planned with this in mind. Preparation may extend to the training given and equipment supplied to police officers.

222   The Guardian 4 May 2000. Back

223   Para 115. Back

224   Para 116. Back

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