Judgments - In re E (a child) (AP) (Appellant) (Northern Ireland)

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25.  Notwithstanding efforts on the part of the parents to negotiate with the Glen Bryn residents in the hope of improving matters and other initiatives by political and community groups, it became apparent that when the school term commenced in September the loyalist mob would endeavour to prevent the pupils of Holy Cross School and their parents from walking to school along Ardoyne Road past the Glen Bryn estate. Mr McQuillan states in his affidavit that the police resolved to mount a police operation to do everything possible to ensure that they could go in safety to school by the route of their choice along Ardoyne Road.

26.   It was quickly apparent that the loyalist residents and those aligning themselves with them were intent on preventing the Catholic parents and children from walking to school on Ardoyne Road through the Glen Bryn estate. On 3 September, the first day of the school term, a large crowd of loyalists assembled and attacked the police and the soldiers erecting barriers. The police made efforts to clear the crowd, but the loyalists’ numbers were too great and their hostility too severe for them to be able to do so. Later that day and on subsequent days in September serious rioting occurred in the area, notwithstanding the deployment of large numbers of police and Army personnel.

27.  The loyalists’ efforts in pursuit of their aim of blocking the walk to the school became increasingly violent and dangerous, with highly unpleasant and frightening consequences for the children. These are summarised in the statement of facts and issues agreed between the parties in a passage at paragraph 6 which makes distressing reading. A list of examples of the protesters’ behaviour is there set out. No doubt the type of incident which occurred and the intensity of the abuse varied from day to day. The list reads as follows:

“(i) the throwing of an explosive device on Ardoyne Road on the 5th September 2001 as children were being taken to the school.

(ii) The throwing of other missiles at those making the journey to and from the school. These included bricks, rubbish, balloons filled with urine, dog excrement and in particular in the pre-Halloween period firecrackers and bangers.

(iii) Some parents when travelling to or from the school were the object of death threats shouted at them by ‘protesters’.

(iv) A commonplace was the shouting by ‘protesters’ of verbal abuse of a vile sectarian nature.

(v) Male ‘protesters’ shouted obscenities of a sexual nature at women and children as they sought to make their way to or from school.

(vi) There were occasions where racist abuse was directed at persons connected to the school.

(vii) On occasions explicit pornographic material was displayed by the ‘protesters’ as pupils travelled to school.

(viii) Two priests connected to the local parish and who were on the Board of Governors of the school were subjected to verbal abuse which suggested that they engaged in improper sexual activity with the pupils of the school.

(ix) Placards were on occasions displayed which described the same priests as paedophiles and stated that they had joined the priesthood to abuse small children.

(x) Some ‘protesters’ from time to time wore ‘Johnny Adair’ facemasks. Johnny Adair was a notorious loyalist paramilitary who for long had been associated with sectarian attacks on Catholics in the North Belfast area.

(xi) On occasions children, their parents and the priests already referred to were spat at by ‘protesters’.

(xii) A frightening and intimidating atmosphere was created by the ‘protesters’ by the use of piercing whistles, sirens, horns and other instruments which could generate loud noises.

(xiii) Apart from the Johnny Adair masks, already referred to, ‘protesters’ also wore other masks from time to time.”

The DVD which formed part of the material before the House provides vivid visual confirmation of the violent and intimidating nature of the protesters’ behaviour. Notwithstanding all this the parents continued to take their children to school on foot every day along Ardoyne Road. Most of them declined to use the alternative route travelled by the appellant and her daughter in June, which was somewhat longer and was more difficult for some to traverse. The police offered to transport the parents and children to the school in an armoured bus, but this offer was also declined. So for over two months the group of parents and children ran the gauntlet twice a day along Ardoyne Road.

28.  This unhappy state of affairs continued until late November 2001, in spite of efforts by the police to protect the children and parents and efforts by many people in the communities of north Belfast, members of the Northern Ireland Human Rights Commission (“NIHRC”), public representatives, clergy, teachers and others concerned with the welfare of the children to improve matters and seek a means to achieve their cessation. The effect on the physical and emotional health of the children who ran this gauntlet regularly with their parents was marked, as Dr Tan, a local medical practitioner, averred in his affidavit. This is confirmed by the evidence of the principal of the school, Mrs Anne Tanney, and three members of NIHRC who visited the school. It was mitigated only by the wise and compassionate way in which the principal and staff of the school endeavoured to make it a haven of normality and ease the fears and distress of the children.

29.  It is clear from the affidavits of Sir Ronnie Flanagan, then Chief Constable, ACC McQuillan and David Watkins, principal security adviser to the Secretary of State for Northern Ireland, that it was the firm view of the Government and the police that a policing solution alone would not resolve the situation. A succession of meetings was held by Government ministers and officials and senior police officers with a wide range of people in the area, with a view to making both short-term and long-term progress in protecting the children and parents and bringing the matter to an end. Towards the end of October 2001 the atmosphere began to change and it appeared possible to make moves directed towards a return to normality.

30.  In early November the police decided to adopt a revised strategy of lower-key policing of the protest. The loyalists then agreed to appoint stewards and reduce the level of confrontation, while the police removed their riot gear in favour of more usual street apparel. Gradually over the next three weeks the level and intensity of policing was reduced, without untoward effects, until the protest was suspended on 23 November.

31.  A substantial part of the affidavit evidence was devoted to conflicting accounts of meetings which the Chief Constable, other senior police officers and the Security Minister Ms Jane Kennedy MP held with various persons and bodies concerned about the situation. Some of them made representations of varying vigour to the effect that the police were not taking sufficiently effective action to prevent the loyalist protesters from acting as I have described. Factual disputes of this kind cannot readily be resolved in judicial review proceedings and it is not possible for the House to attempt to do so. I do not consider, however, that those conflicts of evidence require to be resolved and, like the trial judge, I do not propose to comment upon them.

32.  Counsel for the appellant laid some emphasis on statements appearing in the affidavits sworn by police officers, which she submitted showed that they misunderstood the extent of the obligation resting upon them to prevent the exposure of the children to the frightening behaviour of the protesters and paid an incorrect amount of regard to the rights of assembly and protest of the loyalists.

33.  She pointed to places in Mr McQuillan’s affidavit sworn on 21 January 2002 in which he referred to respecting and balancing the rights of all those involved (paras 43(iv), 56 and 63). In para 42 he stated that the police sought to ensure, among other concerns, “that the rights of protesters to lawfully protest are respected". In para 50 he said that the police hoped that the measures which they adopted

“would provide some greater protection for the parents and children and at the same time minimal interference with the rights of the Loyalist residents to lawfully protest and make use of the public highway.”

As against that the Chief Constable is recorded as having stated in a meeting with representatives of NIHRC on 25 October 2001 that “his paramount consideration is the welfare of the children” and that “the rights of the children far outweighed any rights to freedom of assembly or expression claimed by the protesters.” In a letter of 7 November 2001 to the Chief Commissioner he assured him that “the rights of the children are to the forefront of our thinking in all we do and in all we are seeking to achieve.” An echo of this approach appears in para 27 of Chief Superintendent Maxwell’s affidavit sworn on 14 January 2002, where he refers to his view that the safety of the children had to be paramount.

34.  The difficulties faced by the police and the attempts made to overcome them and ensure the safe passage of the children and their parents are set out in the affidavits sworn by the senior police officers involved. They are summarised in some detail in the judgments of the trial judge and the Court of Appeal and I shall set out only a resume in this opinion.

35.  During the first period, between the outbreak of disorder on 19 June 2001 and the end of the school term, the situation in the area was such that there would have been considerable risk to the children and parents if the police had attempted to force a passage for them through the protesters on Ardoyne Road. Firearms and blast, paint and petrol bombs had been used on 19 June against the police officers, 39 of whom had been injured. There were concerns about the effect which further confrontation and possible violence might have on the stability of the area, which was in a volatile condition. Chief Superintendent Maxwell was seriously concerned for the safety of the children, in the light of intelligence received about the risk of organised attacks by loyalists on Catholic residents. Even so, he told representatives of the school that had it been a situation of adults going to their place of work, rather than children going to school, he might have been disposed to push back the protesters. He considered the risk too great to take in the case of children, however, and so decided, with the agreement of ACC McQuillan, that he could not permit the use of Ardoyne Road for their passage to school. This decision was not challenged in the submissions advanced to the House.

36.  When the new term commenced in September the police had been able to consider what strategy they would follow and what expedients they might adopt. A decision was made by them that their overriding priority was to do everything possible to enable the parents to take their children to school on foot along Ardoyne Road. To this end an attempt was made on 3 September to erect a barrier of screens between the protesters and the pedestrians, with police and soldiers stationed on each side of the barrier. This had limited success, as the screens were not sufficiently robust to withstand stones and took so long to erect that assembling crowds were able to prevent the completion of the barrier. The use of hessian screens was also considered, but rejected, mainly on account of the fire risk.

37.  The expedient adopted was to station police and military vehicles along both sides of the road, creating a corridor through which the group of children and parents could walk. Police and soldiers were deployed on the protesters’ side and escorting police officers carrying long shields accompanied the group to protect them from missiles. This tactic proved successful, to the extent that no injuries were sustained by any children.

38.  The ensuring of the passage of the groups of children and parents placed a heavy burden on the police. Mr McQuillan stated at para 53 of his affidavit of 21 January 2002:

“Huge numbers of police and soldiers were deployed into the area each day to achieve the safe travel of the parents and children to school and each evening to prevent sectarian rioting along interfaces in the area. During the course of these operations Police and Army came under attack with gunfire, blast bombs, petrol bombs, acid bombs and missiles. Vehicles were hijacked, set on fire and rolled into police lines. Large numbers of soldiers and police officers were injured, some very seriously.”

Mr Maxwell stated that a total of 41 police officers received injuries directly attributable to the Holy Cross dispute. The cost of policing it between June and December 2001 has been estimated at over £3 million. The deployment of such numbers of police officers in Ardoyne meant the diversion of resources from other areas, with a significant impact on the quality of policing in the Belfast Region.

39.  Several deponents criticised the effectiveness of the steps taken by the police. Some, notably the appellant herself and Father Aidan Troy, the chairman of the board of governors of the school, described the screens as inadequate. It is apparent, however, that these criticisms are largely directed to the screening on 3 September 2001, whereas it was accepted by the police on reviewing that day’s events that this had not been satisfactory and that other steps should be adopted. Others have complained that there were gaps in the line of vehicles subsequently used, which enabled protesters to get too close to the children as they walked along the roadway. Mr Frank McGuinness, a member of NIHRC, regarded the riot gear worn by the police as intimidating and there were also complaints that the police vehicles faced the children instead of the protestors and that offensive posters were not removed. The major complaint, however, made by a number of critics, was that the police should have taken more robust action, in particular by forcing protesters off the street and making more widespread arrests, with the object of terminating the protest at an early stage. This complaint formed the leitmotiv of much of the submissions made by counsel for the appellant and the first intervener NIHRC.

40.  The major issue to which argument was directed was whether the State through its emanations the RUC and PSNI was in breach of its positive obligation under article 3 of the Convention to take the steps required of it to prevent the infliction of inhuman and degrading treatment upon the appellant and her daughter. In the courts below the argument also encompassed article 2, but before the House the appellant and NIHRC, sensibly in my view, did not pursue the issue under that article and confined their argument to article 3.

41.  Several discrete questions require to be decided in approaching this issue:

  (a)   whether the appellant is entitled to seek relief on behalf of     her child, who is not formally a party to the proceedings;

  (b)  whether the appellant and her daughter suffered inhuman     or degrading treatment;

  (c)  whether article 3 was engaged so as to give rise to the       positive obligation under that article;

  (d)   if so, whether the police took sufficient steps to discharge     that obligation.

42.  In the appellant’s Order 53 statement she purported to claim relief in respect of breach of the Convention rights both of herself and her young daughter. It has not been made clear why the child was not also joined as a party, which could readily have been done. The Court of Appeal held, in reliance on the decisions of the European Court of Human Rights in Ilhan v Turkey (2002) 34 EHRR 36 and YF v Turkey (2004) 39 EHRR 34, that the appellant was entitled to bring the present proceedings on behalf of her daughter. She was a young child and therefore vulnerable at the time of the events in question and the commencement of the judicial review proceedings. The appellant is a close relative of the child, who ranked as a victim for the purposes of section 7 of the Human Rights Act 1998. No argument to the contrary was addressed to the House and I am content to accept that the proceedings are properly founded, though I would regard it as generally preferable to join persons in the child’s position as parties.

43.  The respondents accepted that some of the more extreme forms of conduct in which the loyalist protesters indulged potentially constituted inhuman or degrading treatment within the meaning of article 3. I regard this as a correct concession, certainly in respect of the appellant’s daughter, and so I do not find it necessary to consider the reservation expressed by Campbell LJ in paragraph 88 of his judgment in the Court of Appeal.

44.  Article 3 of the Convention provides in simple and unqualified terms:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

It is not suggested that the state through the police itself subjected the appellant or her daughter to any such treatment. The appellant’s case is rather founded upon a claim that it was in breach of the positive obligation imposed upon it by article 3. The negative obligation, not to inflict inhuman or degrading treatment, is unqualified. But the Strasbourg jurisprudence has laid down in decisions under article 2 that a positive obligation is also imposed upon contracting states, to take certain steps towards the prevention of loss of life at the hands of others than the state. It was accepted by all parties to the present appeal that a similar positive obligation is imposed under article 3 in the prevention of the infliction by third parties of inhuman or degrading treatment. That was the major premise of the arguments addressed to the House and it appears to be correctly founded in principle and supported by recent decisions of the European Court of Human Rights (“ECtHR”).

45.  The extent of the positive obligation obviously cannot be regarded as absolute as the negative obligation. The contracting states could sensibly bind themselves by an absolute and unqualified obligation not to take life and not to inflict inhuman or degrading treatment, matters which they themselves could control. They could not be expected to undertake a similarly absolute obligation to prevent other persons not under their direct control from taking such actions. The ECtHR set out the underlying reasoning fully in a passage in Osman v United Kingdom (1998) 29 EHRR 245, paras 115-116, a case involving article 2, which has become familiar to your Lordships but which nevertheless bears repetition in extenso:

“115. The Court notes that the first sentence of 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. It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.

116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.

In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, 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. This is a question which can only be answered in the light of all the circumstances of any particular case.”

46.  It may be seen from the passage which I have quoted and from such decisions as Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50; [2008] 3 WLR 593 that in cases involving article 2 the major issue may be whether the risk to life which in the event materialised was to be regarded at the time when precautions could have been taken as “real and immediate". Miss Quinlivan for the appellant pointed out that no analogous difficulty arose in the present case, for the inhuman and degrading treatment had actually occurred and then recurred over a lengthy period, so that article 3 in its positive aspect was engaged. The police accordingly possessed more than sufficient knowledge of that treatment to trigger their obligation to take preventive action.

47.  That much was not in dispute, but counsel went further and submitted that since the police had available to them the means of stopping the protest and preventing the infliction of inhuman or degrading treatment, their obligation to use the measures at their disposal was absolute, unless they could conclusively demonstrate that if they adopted those measures worse consequences of risk to life or the infliction of inhuman or degrading would ensue to the children concerned or other persons. The submission advanced by Mr Macdonald QC for the first intervener NIHRC went equally far. He argued in terms that the positive obligation under article 3 was absolute in its nature and that no element of proportionality entered into consideration. The full extent of this argument appears at para 55 of his written case:

“55. Likewise, the concept of balance is not in play in that the needs of the community cannot be weighed against the right of an individual not to be subjected to torture or other ill-treatment reaching the threshold. To express the standard of the state’s responsibility in terms of ‘reasonableness’ therefore fails to reflect the categorical imperative created by Article 3. Considerations of reasonableness may operate in deciding whether a proposed measure is available or likely to be effective to stop the ill-treatment in question but not otherwise. In circumstances where the state has it within its power to prevent or stop inhuman or degrading treatment, it must take the measures necessary to do so. The only room for discretion is in determining the most effective means of achieving the object of preventing the ill-treatment. There is no room for opting not to prevent it.”

48.  I am unable to accept the thesis advanced by either counsel. It is in my opinion quite clear from para 116 of Osman that the obligation placed upon the authorities in an article 2 case is to do all that could reasonably be expected of them to avoid a real and immediate risk to life, once they have or ought to have knowledge of the existence of the risk. I cannot suppose that the obligation under article 3 is different in kind, and the Strasbourg jurisprudence confirms this, as I set out below. To hold otherwise would be to place an intolerable burden on the state. In the present case it would have required the police to drive back the protesters by main force and make numerous arrests, irrespective of the consequences which could have ensued and which could have given rise to widespread disorder, loss of life and destruction of property. I consider that my observations in In re Officer L [2007] UKHL 36, [2007] 1 WLR 2135, para 21 are equally applicable to the present case:

“[21] Secondly, there is a reflection of the principle of proportionality, striking a fair balance between the general rights of the community and the personal rights of the individual, to be found in the degree of stringency imposed upon the state authorities in the level of precautions which they have to take to avoid being in breach of article 2. As the European Court of Human Rights stated in Osman v United Kingdom (1998) 29 EHRR 245, para 116, the applicant has to show that the authorities failed to do all that was reasonably to be expected of them to avoid the risk to life. The standard accordingly is based on reasonableness, which brings in consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available. In this way the state is not expected to undertake an unduly burdensome obligation: it is not obliged to satisfy an absolute standard requiring the risk to be averted, regardless of all other considerations: cf McBride, ‘Protecting Life: A Positive Obligation to Help’ (1999) 24 EL Rev: Human Rights Survey HR/43, HR/52.”

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