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In re E (a child) (AP) (Appellant) (Northern Ireland)
HOUSE OF LORDS
 UKHL 66
on appeal from:NICA 37
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re E (a child) (AP) (Appellant) (Northern Ireland)
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
(Instructed by Madden & Finucane)
First Interveners (Northern Ireland Human Rights Commission)
Barry MacDonald QC
(Instructed by Northern Ireland Human Rights Commission)
Bernard McCloskey QC
Paul Maguire QC
(Instructed by Crown Solicitor)
Second Interveners (Childrens Law Centre and Northern Ireland Commissioner for Children and Young People (Written submissions only))
(Instructed by Childrens Law Centre)
17, 18 and 19 JUNE 2008
WEDNESDAY 12 NOVEMBER 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re E (a child) (AP) (Appellant) (Northern Ireland)
 UKHL 66
1. I have had the privilege of reading in draft the opinion of my noble and learned friend Lord Carswell. I agree with it and, as he has dealt fully with the facts and the law, I shall not detain your Lordships by covering the same ground. For the reasons he gives, I would dismiss the appeal.
2. It may however be of some assistance in future cases if I comment on the intervention by the Northern Ireland Human Rights Commission. In recent years the House has frequently been assisted by the submissions of statutory bodies and non-governmental organisations on questions of general public importance. Leave is given to such bodies to intervene and make submissions, usually in writing but sometimes orally from the bar, in the expectation that their fund of knowledge or particular point of view will enable them to provide the House with a more rounded picture than it would otherwise obtain. The House is grateful to such bodies for their help.
3. An intervention is however of no assistance if it merely repeats points which the appellant or respondent has already made. An intervener will have had sight of their printed cases and, if it has nothing to add, should not add anything. It is not the role of an intervener to be an additional counsel for one of the parties. This is particularly important in the case of an oral intervention. I am bound to say that in this appeal the oral submissions on behalf of the NIHRC only repeated in rather more emphatic terms the points which had already been quite adequately argued by counsel for the appellant. In future, I hope that interveners will avoid unnecessarily taking up the time of the House in this way.
LORD SCOTT OF FOSCOTE
4. I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Carswell and for the reasons he has given, with which I am in full agreement and to which I can add nothing of value, I too would dismiss this appeal.
BARONESS HALE OF RICHMOND
5. The world looked on in consternation and amazement in September 2001 as day after day little girls being taken to school by their parents were subjected to a barrage of intimidating clamour, insults, abuse and offensive missiles from by-standers, some of them children themselves, as they walked up the street. The experience was obviously terrifying for the children and made more so by the precautions deemed necessary to enable them to get to school without physical harm. They walked in a group between lines of armoured vehicles and police or service personnel holding riot shields some of them facing the children rather than the aggressors. It is little wonder that their experiences had a marked effect upon their physical and emotional heath. It was the fact that little children could be subjected to such prolonged and very public ill-treatment which horrified the outside world and made it hard for them to understand, not only why the aggressors could think it in any way acceptable to subject the children to such an ordeal, but also why the authorities could allow it to happen. It is because of this that I would like to add just a few words to the opinion of my noble and learned friend, Lord Carswell.
6. I agree with him that it would have been preferable had the appellants daughter been made a party to these proceedings and even separately represented. With the best will in the world, there is a tendency to see confrontations such as this through adult eyes, and to forget that these are not the eyes of children, who are simply the innocent victims of other peoples quarrels. Fortunately, we have had the assistance of some very helpful written submissions from the Childrens Law Centre and Northern Ireland Commissioner for Children and Young People. They draw attention to the particular vulnerability of children when exposed to violent conflict. They quote Thomas Hammerberg, Council of Europe Commissioner for Human Rights, in his 2007 Childrens Law Centre lecture:
The atmosphere of violence and the tension tend to affect children deeply . . . Younger human beings have less ability to see the context and understand why people behave as they do and, certainly, their time perspective is different. All this makes them so much more vulnerable.
7. The European Court of Human Rights has taken particular note of the vulnerability of children in its judgments on the obligations of the state to protect people from inhuman or degrading treatment. It is noteworthy that the landmark rulings in which the state has been found responsible for failing to protect victims from serious ill-treatment meted out by private individuals have concerned children. The case of A v United Kingdom (1999) 27 EHRR 611 was decided shortly before the leading case of Osman v United Kingdom (2000) 29 EHRR 245. A v United Kingdom established the principle that the state was obliged to take measures designed to ensure that people were not subjected to ill-treatment by private individuals. Vulnerable people were entitled to be protected by effective deterrent measures. The existence of the defence of reasonable chastisement failed to afford children such protection. Osman took the matter further by establishing a duty to take more pro-active protective measures to guard against real and immediate risk of which the authorities knew or ought to have known. There was no breach in Osman itself; but breaches were found in both Z v United Kingdom (2002) 34 EHRR 97 and E v United Kingdom (2003) 36 EHRR 519. In Z, the authorities had failed to protect children from prolonged abuse and neglect which they knew all about. In E, they had failed to monitor the situation after a step-father had been convicted of sexual abuse, and so it was held that they should have found out that he was abusing the children and done something to protect them. The Court said this, at para 99:
The test under article 3 however does not require it to be shown that but for the failing or omission of the public authority ill-treatment would not have happened. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the state.
8. These and later cases show that the special vulnerability of children is relevant in two ways. First, it is a factor in assessing whether the treatment to which they have been subjected reaches the minimum level of severity - that is, the high level of severity - needed to attract the protection of article 3. As the Court recently reiterated in the instructive case of Mayeka v Belgium (2008) 46 EHRR 23, para 48:
In order to fall within the scope of article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim.
Detaining a Congolese child of five, who had been separated from her family, for two months in an immigration detention facility designed for adults met that high threshold even though the staff had done their best to be kind to her.
9. The special vulnerability of children is also relevant to the scope of the obligations of the state to protect them from such treatment. Again, in Mayeka v Belgium, at para 53, the court reiterated, citing Z, A, and Osman, that:
. . . the obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires states to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals Steps should be taken to enable effective protection to be provided, particularly to children and other vulnerable members of society, and should include reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge. (emphasis supplied)
Despite the fact that the state had detained the little girl, the Court treated the case, not as a breach of its negative obligation, but as a breach of its positive obligation to look after her properly. She indisputably came within the class of highly vulnerable members of society to whom the Belgian State owed a duty to take adequate measures to provide care and protection as part of its positive obligations under article 3 of the Convention (para 55). This they had failed to do (para 58). The Court also found a breach of the states obligations towards the childs mother, because of the distress she must have suffered at her daughters treatment, even though it could be said that she had to some extent brought it on herself by arranging for the child to travel through Belgium without a visa (para 62).
10. That case demonstrates the wisdom of what was said by my noble and learned friend, Lord Brown of Eaton under Heywood, in R (Limbuela) v Secretary of State for the Home Department  UKHL 66,  1 AC 396, para 92:
. . . it seems to me generally unhelpful to attempt to analyse obligations arising under article 3 as negative or positive, and the states conduct as active or passive. Time and again these are shown to be false dichotomies. The real issue in all these cases is whether the state is properly to be regarded as responsible for the harm inflicted (or threatened) upon the victim.
Nevertheless, there must be some distinction between the scope of the states duty not to take life or ill-treat people in a way which falls foul of article 3 and its duty to protect people from the harm which others may do to them. In the one case, there is an absolute duty not to do it. In the other, there is a duty to do what is reasonable in all the circumstances to protect people from a real and immediate risk of harm. Both duties may be described as absolute but their content is different. So once again it may be a false dichotomy between the absolute negative duty and a qualified positive one. In another recent case about children, Kontrova v Slovakia, App no 7510/04, Judgment of 24 September 2007, the Court, at para 50, reiterated the well-known passage from Osman, para 116:
Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.
In Kontrova, the state admitted violating the positive obligation to protect life in article 2. Despite having received allegations of repeated and serious violence against by childrens father, and that he had a shotgun and threatened to use it to kill himself and the children, they had failed to act upon these allegations, with the direct result that he carried out his threats and the children were killed.
11. This case has several features which distinguish it from the general run of cases, such as Osman and the recent decision of this House in Van Colle v Chief Constable of Hertfordshire Police  UKHL 50;  3 WLR 593, in which victims have complained that the state has failed adequately to protect them from the actions of private individuals. First, it concerns children. Second, there is no issue about whether the police should have appreciated the real and immediate risk of ill treatment. They knew all about it. It was going on under their noses. The fact that it may not have occurred to them that it fell within article 3 makes no difference. Third, while they were undoubtedly doing their very best to ensure that the children could get to school by their usual route without suffering physical harm, the steps they took made the experience even more frightening for the children: closing the road, making the parents and children walk together under escort at defined times in the morning and afternoon, rather than letting them go in dribs and drabs in the way that children normally make their way to and from school. Fourth, they let this situation continue throughout half a school term. The evidence suggests that this was because they saw it as part of a complex community dispute, in which a loyalist enclave on this area of North Belfast saw itself as under threat from the encroaching nationalists, and was exercising a right to protest about this. The police now accept that this was not a legitimate exercise of the right to protest. But they also believed that more sinister forces on the loyalist side might exploit the dispute to foment much more serious violence elsewhere in Belfast if the matter was not carefully handled and ultimately a political solution found.
12. Hence the essential dispute before us is whether the police were entitled to take into account the risk of serious harm and even death to unspecified people elsewhere in Belfast when deciding how to protect the Holy Cross school children. Had they not done so, it is argued, they could and should have taken a more robust attitude to the aggressors from the outset, arresting the ring-leaders and driving the others off the street. This, it is said, is what they finally decided to do after the aggression had been going on for half a term, and shortly after they signalled their intentions, the so-called protest was abandoned.
13. Both the trial judge and the Court of Appeal thought that the police were entitled to take those wider considerations into account. The Court of Appeal, perhaps understandably as their judgment came before this House had further clarified the matter in Huang v Secretary of State for the Home Department  UKHL 11,  2 AC 167, mistakenly applied the test derived from R v Ministry of Defence, Ex p Smith  QB 517, 554 to their assessment of the police behaviour. It is now clear that, under the Human Rights Act, the court must make its own assessment of whether a public authority has acted incompatibly with the convention rights. That said, as Lord Bingham said in Huang, para 16, the court has to give appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice".
14. As a general principle, a police officer is not entitled to stand by and let one person kill or seriously ill-treat another, when he has the means of preventing it, just because he fears the wider consequences of doing so. He has to step in, come what may. But this situation was not as straightforward as that. In Z v United Kingdom and Kontrova v Slovakia it was quite obvious what could have been done to protect the children from harm: the Z children could have been taken into care and the Kontrova childrens father could have been arrested when he first threatened to kill them. It was rather less obvious what the authorities should have done to protect the children in E v United Kingdom and I have been troubled by the rejection of the but for test in the passage quoted in para 7 above. In the end, however, I do not think that it has been demonstrated that, had the police behaved at the outset in the way in which it is now said that they should have behaved, the childrens experience would have been any better. Indeed, it could have been a great deal worse. They were in very real physical danger at the beginning. On 5 September an explosive device was thrown into the road where they were walking but thankfully injured no-one. The difficulties and dangers to them in doing what it is now suggested should have been done cannot be ignored. Hindsight is a wonderful thing and no doubt the police have learned lessons from this whole experience. But in a highly charged community dispute such as this, it is all too easy to find fault with what the authorities have done, when the real responsibility lies elsewhere.
15. For that reason, therefore, despite all the features which distinguish this case from those where no breach of duty has been found, and in agreement with Lord Carswell, I too would dismiss this appeal.
16. The essence of the appellants case, as presented before your Lordships House, was that the state and its emanation the police force failed to take appropriate steps to discharge their positive obligation under article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) to protect the appellant and her young daughter against the infliction upon them of inhuman and degrading treatment. It was also claimed that the police had discriminated against them in their handling of the events in which such treatment occurred. Other arguments were presented, but they were peripheral to these main issues. The appellant sought declarations in relation to them, notwithstanding the passage of time and the substantial change of circumstances since the events took place between June and November 2001. It was argued in the courts below that they should not entertain the proceedings, on the ground that the matter had become academic. Those courts decided to allow the application for judicial review and the subsequent appeal to proceed. Your Lordships took the same course in granting leave to appeal, on account of the importance of the issues concerned.
17. The appellants application for judicial review was heard in the High Court by Kerr J, who by the time he gave judgment had become Lord Chief Justice of Northern Ireland. He dismissed the application on 16 June 2004 and the Court of Appeal (Campbell and Sheil LJJ, Gillen J) on 19 October 2006 dismissed the appellants appeal.
18. Both the judge and the Court of Appeal set out the material facts in some detail, and for reasons which will appear I shall also give fairly extended consideration to them in this opinion, although any account must necessarily be only a summary of the voluminous affidavit evidence placed before the courts.
19. Holy Cross Girls Primary School is a school with, at the material time, approximately 230 pupils aged between three and eleven years from the Catholic community in north Belfast. It is situated on Ardoyne Road, along which it was the custom of parents of some of the pupils to walk with their daughters to and from school. The district is largely Catholic, but the Glen Bryn estate forms an enclave bordering part of Ardoyne Road on both sides. It is inhabited by Protestant families who on account of the political sympathies held by most of them are generally termed loyalists, a term which I shall use for convenience. Policing in Northern Ireland was the responsibility of the Royal Ulster Constabulary, which on 4 November 2001 was succeeded by the Police Service of Northern Ireland. Again for convenience I shall refer to the two bodies generally as the police.
20. In the afternoon of 19 June 2001 there was an outbreak of disorder on Ardoyne Road, which was the trigger for the events and conduct forming the factual background of this appeal. The area had been in a state of increasing tension, the development of which was described by Assistant Chief Constable McQuillan in his affidavit sworn on 21 January 2002. There was a certain amount of potentially violent confrontation between rival factions in the earlier part of June, and the police felt some concern about the possibility that loyalist paramilitary groups would attempt for their own ends to foment trouble where they could in the area, seeking to raise the temperature and encourage confrontation and even violent disorder.
21. The behaviour of the loyalist crowds along Ardoyne Road which I am about to describe has been termed a protest in the documents before the House. It is said that the fons et origo was a protest from the loyalists about an issue about which they felt concern, as mentioned by the trial judge in paragraph 2 of his judgment, and Mr McQuillan describes in paragraph 43(iii) of his affidavit the formulation in or about late October 2001 of demands from the loyalist residents. Certainly it is well known that disturbances of the kind which took place are commonly the product of a number of factors. The only evidence which the House had before it about any reasons which may have underlain the original disorder was the reference in paragraph 2 of the appellants affidavit, which is inconclusive, and one by Mr McQuillan (para 43(ii) of his affidavit) to the concerns of the loyalist residents focusing at the outset on security in their area and their perception of attacks on them and their homes by nationalists. Whatever the initial cause may have been, however, it is entirely clear that the behaviour complained of far exceeded the bounds of that which could be associated with any legitimate protest. It was utterly disgraceful and was condemned by Kerr LCJ in strong terms in paragraph 63 of his judgment. The term protest is accordingly inappropriate, as may also be the term demonstration in the circumstances of this case. Nor is it readily apparent that the events should be classified as a dispute", as referred to in some of the affidavits sworn by police officers. Since those events are described in so many material documents as a protest, I shall continue to use the term, but subject to the caveat which I have expressed.
22. The events giving rise to the proceedings fall into two distinct periods: the first ran from 19 June 2001 until the conclusion of the school term at the end of June and the second between the start of the next term on 3 September until the protest was suspended on 23 November 2001.
23. Serious disorder broke out on Ardoyne Road in the afternoon of 19 June 2001, which appears to have been a reaction from an incident unconnected with the school or its pupils. This developed into abuse towards and attacks on children returning from school and their parents. The appellant does not claim that she and her daughter were directly subjected to that, but she states that her daughter was frightened and upset by witnessing a violent incident which took place. The following day the police closed Ardoyne Road, when further disorder and violent confrontation took place.
24. There was further rioting in Ardoyne Road on 21 June, but it was quieter on Friday 22 June. The appellant did not take her daughter to school on 21 June and on 22 June she went by an alternative, longer route along Crumlin Road and through the grounds of another school, as the police still did not permit them passage along Ardoyne Road. Mr McQuillan expressed the concern of the police at this stage in paragraph 38 of his affidavit:
With the police and army resources available to me and the general situation in Urban Region and the rest of Northern Ireland at that time, I was concerned that I simply did not have sufficient resources available to secure the safe passage of the children and parents. Furthermore, I was concerned that, to try to force them through Ardoyne Road at that time, also ran a real risk that serious violence would break out in Loyalist Communities across other parts of the Region and that this would include the risks of attacks on other Roman Catholic schools. Some of these attacks would be organised by the [Ulster Defence Association] and I considered that they would represent a real risk to life.
He therefore decided, in consultation with Chief Superintendent Maxwell, the District Commander, that it was not possible to mount an operation that would guarantee the safety of the children and parents if they travelled along the road. This situation continued until the end of the school term.