In re E (a child) (AP) (Appellant) (Northern Ireland)
49. This conclusion is supported by the post-Osman decisions of the ECtHR, of which it is sufficient to mention only a few. Oneryildiz v Turkey (Application No 48939/99, 30 November 2004) was an application brought under article 2, in a case in which it was claimed that the respondent state had failed to take sufficient measures to prevent the loss of life caused by a methane gas explosion at a municipal rubbish tip. The Court held that the state had failed in its positive obligation under article 2 to set up a framework for the protection of persons at risk. Citing, amongst other cases, the Osman decision, it held that the authorities had ample knowledge of the risk and were in breach of their duty to take such operational measures as were necessary and sufficient to protect the persons at risk. There was no suggestion that this was an absolute duty or one which differed in any way from that laid down in Osman. Z v United Kingdom (2002) 34 EHRR 97 concerned a complaint brought under article 3 of child neglect and abuse. The Court stated in para 73 that the states obligations under the Convention required them 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. Citing Osman, it said that these measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge. In Gldani Congregation of Jehovahs Witnesses v Georgia (Application no 71156/01, 3 August 2007) police had known in advance of an attack upon the applicants by religious opponents, which constituted inhuman or degrading treatment, but had failed to take any preventive action. The Court reaffirmed the existence of a positive obligation upon States under article 3, in the terms set out in Z v United Kingdom and quoted above. It added at para 96 This protection calls for reasonable and effective measures".
50. In the High Court Kerr LCJ accepted the principle of reasonableness as the test to be applied to the measures adopted by the police. He referred to the natural reaction of right-thinking people that those responsible for the intimidation, threats and attacks upon the children and their parents should have been prevented from doing so or that those responsible should have been arrested and prosecuted. He went on in para 46 of his judgment:
[46l Sadly, policing options and decisions do not readily permit such uncomplicated solutions, particularly in such a uniquely fraught situation. Those who had to decide how to deal with this protest were obliged to have regard to the effect that their decisions might have in the wider community. It is not difficult to understand that an aggressive, uncompromising approach to the protest might have been the catalyst for widespread unrest elsewhere. It is precisely because the Police Service is better equipped to appreciate and evaluate the dangers of such secondary protests and disturbances that an area of discretionary judgment must be allowed them, particularly in the realm of operational decisions. While the sense of grievance of the parents is perfectly reasonable and the perplexity of those who could not understand why the police did not adopt more forceful tactics is unsurprising, I cannot accept that it has been established that the measures taken by the police were unreasonable. I have concluded that no breach of article 3 has been demonstrated therefore.
51. The Court of Appeal also adopted the test of reasonableness of the measures adopted and went on in para 89 of its judgment to consider how the steps taken by the police matched up:
 There was a positive obligation on the State to take reasonable measures to protect the child of E from degrading treatment. On behalf of E it is submitted that more positive steps or measures to protect the Convention rights of her daughter ought to have been taken by the police. Those best equipped to make an assessment as to the course to be adopted considered that there was a significant risk of violence erupting on a wider scale if more robust action was taken against the protesters. Not only could this have put at risk the lives of police officers but also the lives of members of the public living in North Belfast. Applying the Smith test we consider that taking account of the nature and size of the operation that was mounted over a considerable period of time and the perceived risk if other measures were adopted the police did all that was reasonably open to them to protect the rights of the child.
The Smith test referred to in this passage and in an earlier part of the judgment of the Court of Appeal is that set out by Sir Thomas Bingham MR in R v Ministry of Defence, Ex p Smith  QB 517, 554:
The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.
The decisions of the High Court and the Court of Appeal were criticised by counsel for the appellant and NIHRC on two grounds, first, that the Court of Appeal had applied the wrong test in adopting that laid down in Smith, and, secondly, that it was wrong to defer to the judgment of the police.
52. It is well established in decisions since the coming into force of the Human Rights Act 1998 that the Smith test is not sufficient to determine an issue of proportionality under the Convention. In Huang v Secretary of State for the Home Department  UKHL 11,  2 AC 167, 184, para 13 Lord Bingham of Cornhill summarised the position in succinct terms:
In the course of his justly-celebrated and much-quoted opinion in R (Daly) v Secretary of State for the Home Department  2 AC 532, paras 26-28, Lord Steyn pointed out that neither the traditional approach to judicial review formulated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223 nor the heightened scrutiny approach adopted in R v Ministry of Defence, Ex p Smith  QB 517 had provided adequate protection of Convention rights, as held by the Strasbourg court in Smith and Grady v United Kingdom (1999) 29 EHRR 493.
Lord Bingham set out the elements of the correct approach in R (SB) v Governors of Denbigh High School  UKHL 15,  1 AC 100, 116, para 30:
 it is clear that the courts approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department  2 AC 532, paras 25-28 in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith  QB 517 at 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time Proportionality must be judged objectively, by the court
He further observed at para 31 that what matters is the practical outcome, not the quality of the decision-making process that led to it.
53. It is worth returning to the ipsissima verba of Lord Steyn in Dalys case. He said  2 AC 532, para 27:
The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith  QB 517, 554 is not necessarily appropriate to the protection of human rights [T]he intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.
54. It has of course to be borne in mind that the cases to which I have referred, Daly, Denbigh High School and Huang, all concerned the compatibility of decisions of an administrative character with the Convention rights of those affected by them. Nevertheless, the essential point established by them is that the Smith test is insufficiently intense and that the actions of the police in the present case have to pass the test of proportionality, which must be decided by the court. The Court of Appeal was therefore in error in applying the Smith test and I propose to assess the actions of the police in the light of the evidence adduced and by reference to the correct principles.
55. Between the beginning of September and late November 2001 the police devoted substantial effort and resources to keeping open this short stretch of road for the group of parents and children to traverse. They placed themselves as a shield between a hostile and dangerous crowd and a small group of vulnerable people, incurring a considerable number of injuries to their officers. They achieved a significant measure of success in their efforts, in that no child sustained any injury during the whole period. They did not take what might have been a tempting course, to close the road on the ground that to keep it open was too dangerous. It was important that they should uphold the freedom of members of the public to walk at will along a public road, the abandonment of which would have been an inroad into the rule of law and a success for mob rule. It was not achieved easily or without cost, in terms of injuries and expense. But it was achieved, and the complaint in these proceedings is not that the police or the state failed to make sufficient endeavours to uphold the appellants civic rights.
56. The complaint is rather that the passive protection which the police afforded was insufficient. It is claimed that they should have done more, that they should have taken more robust active steps to quell the protest and protect the children from the frightening experience which they endured when they walked along Ardoyne Road. That comes down to two specific assertions, first, that they should have forced the protesters back and away from their positions bordering Ardoyne Road and, secondly, that they should have made more numerous arrests, which would have served as a deterrent and brought about a speedier end to the protest.
57. As the trial judge said in the passage in his judgment which I quoted above, policing options and decisions do not readily permit of such uncomplicated solutions. One can readily envisage many practical difficulties in the way of forcing protesters back and making arrests, which is notoriously difficult in situations of riot or near-riot. More fundamental, the core of the respondents case is that a robust response on the part of the police contained a serious danger that violence could spread and escalate. That could have given rise to potentially dangerous consequences both for the parents and children as they walked along Ardoyne Road and, more widely, for public order in the area and the lives and safety of its residents.
58. It was suggested on behalf of NIHRC that the risk of provoking collateral disorder was essentially speculative and unquantified and that reliance should not be placed on the ipse dixit of the police. There is, however, clear evidence of the volatile nature of the security situation in north Belfast at the time. The potential for the sudden development of violent disorder is shown by the speed with which it broke out when an incident occurred on 19 June 2001 and the length of time which it took to subside. When the police cleared the road on 3 September, using, as Mr McQuillan states, conventional crowd tactics, very violent protests ensued and serious rioting took place in the Upper Ardoyne area. The police view was that only a negotiated community solution would end the protest, a view shared by Government ministers. The efforts made to achieve this eventually bore fruit and the protest was ended and not recommenced. Acceptance of the validity of proceeding in this manner is not merely deferring to the police view, although it would be quite proper to accord a measure of discretion to them as a body with expertise in handling matters of public security, as both Kerr LCJ and the Court of Appeal recognised. Independently of according such latitude of judgment to the police, acceptance of the validity of the course which they adopted is a matter of what Lord Bingham of Cornhill described in Huang v Secretary of State for the Home Department  2 AC 167, 185, para 16 as
performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice.
The police had such responsibility and were uniquely placed through their experience and intelligence to make a judgment on the wisest course to take in all the circumstances. They had long and hard experience of the problems encountered in dealing with riotous situations in urban areas in Northern Ireland. The difficulty of catching and arresting malefactors who had means of retreat available through paths and gardens are self-evident. The police had available to them sources of information about what was happening in the community and what was likely to happen if they took certain courses of action, which they were experienced in assessing.
59. In my judgment the evidence supports the overall wisdom of the course which they adopted. The assertions made by the appellant and NIHRC that they might possibly have adopted more robust action are in my view quite insufficient to establish that the course adopted was misguided, let alone unreasonable.
60. A further argument was presented on behalf of the appellant that the police had failed to have regard to the best interests of the children in carrying out the operation. This is based on the requirement in article 3(1) of the United Nations Convention on the Rights of the Child 1989, that in all actions concerning children the best interests of the child shall be a primary consideration. The Convention was ratified by the United Kingdom in 1991, but has not been incorporated into domestic law. The requirement is nevertheless a consideration which should properly be taken into account by the state and its emanations in determining upon their actions. It is accordingly a matter which may be relevant in determining whether the actions of the police satisfied the obligations placed upon them by article 3 of the Convention.
61. There was some conflict of evidence between the Chief Constable and members of NIHRC about an admission attributed to the former that the police had not paid proper regard to the best interests principle. Like the trial judge and the Court of Appeal, I do not find it either appropriate or necessary to attempt to resolve this conflict. I am satisfied that the senior police officers did at all stages pay regard to the interests of the children, with particular concern for their physical safety. Moreover, the evidence points sufficiently clearly to the conclusion that the action taken was in fact in their best interests. I do not find any substance in this argument.
62. It follows from all the foregoing that the police fulfilled the positive obligation imposed by article 3 and that the appellant has not established a breach of her rights or those of her child under that article.
63. Another argument addressed to the House concerned the observance by the police of their duty under section 32 of the Police (Northern Ireland) Act 2000. This issue is in the strict sense ancillary to the article issue, for the argument depends on the contention that the police failed to give effect to article 3 when complying with their statutory obligation under section 32 of the 2000 Act. I have held that they did give proper effect to their article 3 obligation, so the foundation for the submission under the 2000 Act is removed, as the appellants counsel recognised in the course of argument.
64. The second main issue to which argument was addressed before the House was whether the police discriminated against the appellant and her daughter in the actions which they took. In so arguing the appellant invoked article 14 of the Convention, taken in conjunction with article 3. Article 14, whose terms are very familiar to your Lordships, provides:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
It is axiomatic that the discrimination prohibited is that which affects the freedom of enjoyment of the Convention rights, which is a limiting factor in the search in which the court is required to engage. Accepting that the case comes within the ambit of article 3, the question to be answered in the present case is whether the police in the way that they handled the protest and protected the appellant and her daughter from inhuman and degrading treatment treated them differently on the ground of their religion from the way in which they did treat or would have treated other people. This accords with such statements of the ECtHR as that in Marckz v Belgium (1979) 2 EHRR 330, where the Court said in para 32:
Article 14 safeguards individuals, placed in similar situations, from any discrimination in the enjoyment of the rights and freedoms set forth in those other provisions
As Lord Hoffmann said in R (Carson) v Secretary of State for Work and Pensions  UKHL 37,  AC 173, para 14, Discrimination means a failure to treat like cases alike. I do not understand Lord Nicholls of Birkenhead to have intended any different approach in Shamoon v Chief Constable of the Royal Ulster Constabulary  UKHL 11,  NI 174, when he stated at para 11 that arid and sometimes confusing disputes about comparators may be avoided by asking whether the claimant was treated as he was on the proscribed ground which is the foundation of the application or for some other reason.
65. If one states the issue in this way, it seems clear that one should seek to ascertain whether the police would have handled matters differently if they had been dealing with Protestant parents and children facing a similar Catholic protest. As the courts below said, there is no evidence that that was the case. The suggested comparison between the policing of this protest and that of Orange parades is not valid, as the two are not comparable. Nor can the comparison properly be made between the treatment of the parents and children and that of the protestors.
66. Miss Quinlivan drew the attention of the House to the decisions of the ECtHR in such cases as Nachova v Bulgaria (2005) 19 BHRC 1, Secic v Croatia (2007) 23 BHRC 36 and Cobzaru v Romania (2007) 23 BHRC 526. In Nachova the victims were Army deserters shot while fleeing from military police. In Secic the applicant had been attacked and beaten by skinheads shouting racial abuse. In Cobzaru the applicant complained of having been beaten by police officers when he went to the police station to report an attack. The victim in each case was of Roma origin and the complaint in each was that the State failed to make sufficient investigation of the circumstances because of racial discrimination against such persons. The Court adverted to the difficulty in many cases of proving racial motivation and in Nachova at para 160 the Grand Chamber endorsed the Chambers view that State authorities have the additional duty to unmask any racial motive and to establish whether or not ethnic hatred or prejudice may have played a role in events", a statement repeated in Cobzaru at para 88. The appellants counsel sought to draw from these decisions the conclusion that the court should be particularly vigilant in examining the actions of the police to search for any signs that they failed to take sufficient steps to protect the appellant and her daughter because of their religious affiliation. It appears clear that the motives of the protesters were founded, at least to a large extent, upon sectarian bias. There is, however, nothing to indicate that the police were motivated by any such bias to fail to provide the level of protection to the children and their parents than they would have provided to persons of any other religious persuasion faced with the same circumstances. They took all reasonable steps to protect them, as I have held, and there is nothing, however carefully one examines the evidence, to substantiate any suggestion of sectarian bias in their handling of the situation.
67. I accordingly would hold that the appellant has not made out any of the grounds on which she has relied and dismiss the appeal.
LORD BROWN OF EATON-UNDER-HEYWOOD
68. I have had the advantage of reading in draft the opinions of my noble and learned friends Baroness Hale of Richmond and Lord Carswell and for the reasons they give, with which I am in full agreement, I too would dismiss this appeal.