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State's positive obligation to prevent inhuman treatment is not absolute
19 November 2008 --
House of Lords
Published November 19, 2008
E v Chief Constable of the Royal Ulster Constabulary and Another
Before Lord Hoffmann, Lord Scott of Foscote, Baroness Hale of Richmond, Lord
Carswell and Lord Brown of Eaton-under-Heywood
Speeches November 12, 2008
The positive obligation imposed on the state by article 3 of the European
Convention on Human Rights to prevent the infliction by third parties of inhuman
or degrading treatment was not unqualified and absolute. It was an obligation to
do all that was reasonably to be expected to avoid a real or immediate risk to
an individual once the existence of that risk was known or ought to have been
known.
The House of Lords so held, dismissing the appeal of the mother, E, from the
dismissal by the Court of Appeal of Northern Ireland (Lord Justice Campbell,
Lord Justice Sheil and Mr Justice Gillen) ([2006] NI CA 37) of her appeal from
the refusal by Mr Justice Kerr ([2004] NI QB 35) of her application for judicial
review by way of declarations that the Chief Constable of the Royal Ulster
Constabulary and the Secretary of State for Northern Ireland had acted
unlawfully in, inter alia, failing to secure the effective implementation of the
criminal law and to secure the prevention, suppression and punishment of
breaches of the criminal law, in failing to secure the safety of E and her
child’s safe access to school and in failing to protect them from inhuman and
degrading treatment.
Miss Karen Quinlivan and Miss Jessica Simor for E; Mr Bernard McCloskey, QC and
Mr Paul Maguire, QC, for the chief constable and the secretary of state; Mr
Barry Macdonald, QC and Miss Fiona Doherty for the Northern Ireland Human Rights
Commission, intervening.
LORD CARSWELL said that Holy Cross Girls Primary School had 230 pupils aged
between three and 11 years from the Catholic community in north Belfast. It was
situated on Ardoyne Road, along which it was the custom of some parents to walk
their daughters to and from school.
The district was largely Catholic, but the Glen Bryn estate formed an enclave
bordering part of Ardoyne Road on both sides. It was inhabited by loyalist
Protestant families.
In the afternoon of June 19, 2001, there was an outbreak of disorder on Ardoyne
Road which had been in a state of increasing tension. Loyalist residents were
intent on preventing Catholic parents and children from walking to school on
Ardoyne Road through the Glen Bryn estate. Until the end of the school term at
the end of June the situation was such that the police decided not to permit the
use of Ardoyne Road for the children’s passage to school and provided an
alternative longer route.
When the new term commenced in September, the police had been able to consider
what strategy to follow. The expedient adopted was to station police and
military vehicles along both sides of Ardoyne Road, creating a corridor through
which the group of children and parents could walk. Police officers and soldiers
were deployed on the protesters’ side and escorting police officers carrying
long shields accompanied the group to protect them from missiles.
No injuries were sustained by any children, but the 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. Several
soldiers and police officers were injured, some very seriously.
Critics complained that the police should have taken more robust action in
forcing protesters off the street and making more widespread arrests, with the
object of terminating the protest at an early stage.
The major issue was whether the state, through its emanation the police, 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 E and her daughter.
It was accepted that some of the more extreme forms of conduct in which the
loyalist protesters indulged constituted such treatment.
The negative obligation not to inflict inhuman or degrading treatment was
unqualified. But the state also had a positive obligation to prevent the
infliction of such treatment by third parties. The extent of the positive
obligation could not be regarded as absolute as the negative obligation.
It was submitted for E 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
treatment would ensue to the children concerned or other persons.
It was argued that no element of proportionality, reasonableness or the needs of
the community entered into consideration of the positive obligation to ensure
that an individual was not subjected to torture or ill-treatment.
His Lordship could not accept those submissions. It was quite clear from Osman v
United Kingdom (Application No 23452/94) (The Times November 5, 1998; (1998) 29
EHRR 245) that the obligation placed upon the authorities in an article 2 case,
protecting the right to life, was to do all that could reasonably be expected of
them to avoid a real and immediate risk to life, once they had or ought to have
had knowledge of the existence of the risk. The obligation under article 3 was
no different in kind, and the Strasbourg jurisprudence confirmed that.
To hold otherwise would be to place an intolerable burden upon 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
would have ensued and which would have given rise to widespread disorder, loss
of life and destruction of property.
The police were uniquely placed through their experience and intelligence to
make a judgment on the wisest course to take in all the circumstances, and the
evidence supported the overall wisdom of the course which they adopted. The
assertions that they might have adopted more robust action were quite
insufficient to establish that the course adopted was misguided, let alone
unreasonable.
LORD HOFFMANN, agreeing, added that in recent years in the House of Lords leave
had frequently been given to statutory bodies and nongovernmental institutions
to intervene and make submissions, usually in writing but sometimes orally from
the Bar, on questions of general public importance, in the expectation that
their fund of knowledge or particular point of view would provide a more rounded
picture than their Lordships would otherwise obtain.
An intervention was, however, of no assistance if it merely repeated points
which the parties had already made. An intervener would have had sight of their
printed cases and, if it had nothing to add, should not add anything.
It was not the role of the intervener to be an additional counsel for one of the
parties. That was particularly important in the case of an oral intervention.
In the present case, the oral submissions on behalf of the intervener only
repeated in rather more emphatic terms the points which had already been quite
adequately argued by E’s counsel. In future interveners should avoid
unnecessarily taking up their Lordships’ time.
Lady Hale delivered a speech concurring with Lord Carswell; Lord Scott agreed
with Lord Carswell and Lord Brown agreed with Lord Carswell and Lady Hale.
Solicitors: Madden & Finucane, Belfast; Crown Solicitors, Belfast; Ms Angela
Stevens, Belfast.
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