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E, Re Re Application for Judicial Review [2004] NIQB 35 (16
June 2004)
Ref: KERF4184
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (JUDICIAL REVIEW)
________ IN THE MATTER OF
AN APPLICATION BY 'E' FOR JUDICIAL REVIEW ________
KERR LCJ
Introduction
[1]
This is an application by the mother of one of the children
affected by what has become known as 'the Holy Cross
dispute'. The applicant seeks judicial review in the form of
a declaration that the Chief Constable of the Royal Ulster
Constabulary and the Secretary of State for Northern Ireland
failed to secure the effective implementation of the
criminal law and to ensure safe passage for her and her
daughter to the Holy Cross primary school for girls on
Ardoyne Road, Belfast. The applicant sought the leave of the
court to be referred to as 'E' because of her apprehension
that if her identity was revealed her life would be at risk.
The respondent did not object to this and the court
therefore permitted the application to proceed in this way.
[2] From
September 2001 until mid-November 2001 children and their
parents and relatives who walked along Ardoyne Road to and
from the school were the target of attacks and intimidation
from individuals some of whom were local residents; others
have been described as loyalists. This campaign is said to
have been prompted by the avowed failure of the government
to provide proper services to the local community. It was
claimed that the protest was designed to secure better
facilities for the area. The judicial review application
challenges the manner in which the protest was policed.
The evidence
[3]
In an affidavit filed in support of her application E
described the campaign of abuse to which she, other parents
and the pupils of Holy Cross were subjected during the
period that the protest took place. One particular incident
stood out from the rest. On 19 June 2001 her daughter
witnessed an extremely frightening attack on a local man. A
mob of about 100 to 150 people armed with hammers attacked
the man in his car. The school patrolwoman had to rescue the
applicant's daughter and other schoolchildren and shepherd
them through the crowd to the sanctuary of the school.
[4]
This was but one of a great many incidents that occurred
over the period of the protest. The applicant and her
daughter have been the target of specific abuse and threats
on several occasions. Many of these, she claims, occurred in
the presence of police officers who failed to intervene to
protect her and to apprehend those who, on her account, were
guilty of blatant criminal behaviour.
[5]
The applicant, together with other parents, engaged in
discussions with residents of the area who were involved in
the protest. The purpose of these discussions was to
negotiate an agreement whereby the children might be allowed
to go to school peacefully. It quickly became clear that no
agreement was possible and the discussions ended. The
applicant is convinced that, as a result of her
participation in these discussions, death threats were made
to her by loyalist paramilitaries. Local police informed her
of these on a number of occasions. In consequence, the
applicant moved out of her house into temporary
accommodation.
[6]
After the discussions failed the campaign of abuse
intensified. Bricks and bottles, fireworks, balloons filled
with urine, excrement and other rubbish were flung at these
young children and their parents as they made their way to
the school. They were verbally abused and threatened. Blast
bombs and pipe bombs were also thrown. According to the
applicant, police measures to counteract the activities of
the protesters were either non-existent or totally
ineffective. A line of landrovers did not prevent protesters
reaching through to the children and gaps in the line
allowed them to come close to the group of parents and
pupils as they tried to walk to the school. The applicant
complained to police with no effect. A tiny number of
protesters, according to her, were arrested although police
regularly filmed the events and had evidence against a great
many of the protesters readily available. Individuals who
were on bail participated in the protest, apparently with
impunity. When this was drawn to the attention of the police
they are said to have replied that this was a matter for the
courts.
[7]
All of these matters have led the applicant to assert that
the police have been guilty of a deliberate failure to
identify, arrest and prosecute those responsible for the
numerous criminal offences that protesters have committed.
Moreover, she claims, the failure of the police to act
encouraged the violence of the protest.
[8] Unsurprisingly,
what was happening at Holy Cross attracted media attention
not only in Northern Ireland but throughout the world. The
notoriety of the events at the school was such that
representatives of various public bodies attended the scene
of the protest to observe events for themselves. Among these
was the Northern Ireland Human Rights Commission. Members of
the Human Rights Commission, Frank McGuinness, Patricia
Kelly, Inez McCormack and Christine Bell attended the scene
of the protest on various dates in October and November
2001.
[9]
In an affidavit filed on behalf of the applicant, Mr
McGuinness described his visit on 15 October 2001. He
explained how a row of military vehicles lined the route of
the parents and the children to the school. Those parents
who wished to go to the school to collect their children at
3 pm were not permitted to walk along Ardoyne Road until
security gates were opened and they had to congregate at a
corner while awaiting the opening of the gates. This
increased the sense of apprehension and fear among them. A
further difficulty arose for any parent who was late
arriving at the congregation point. If they were late,
parents would not be permitted to walk along Ardoyne Road
but would have to take the alternative route through an
adjoining school's playing fields.
[10]
On 15 October 2001 the security gates were opened and the
parents moved en masse along Ardoyne Road. The road was
lined on either side by police officers and landrovers. The
line was not continuous, however, and the gaps in it
permitted some protesters to get into position near the
parents as they passed. Mr McGuinness walked with the
parents and he described in graphic terms the sense of fear
that they all experienced as protestors thrust offensive
placards forward and called out threats and sectarian abuse,
often personalised to individual parents. On the way back
from the school this abuse and threatening behaviour was
repeated. Mr McGuinness was able to hear death threats
directed to named individuals in the presence of their
children. The parents were not permitted by police to video
record these scenes although on other occasions Mr
McGuinness observed police officers themselves video the
events. Although the parents were forbidden to video record
the scenes, no attempt was made to prevent the protesters
from doing so. Mr McGuinness described the experience as
extremely frightening and intimidating. He observed that
this must have been much more distressing for the
schoolchildren and he witnessed a number of them crying at
the end of the walk through the protesters.
[11]
The other Commissioners who attended the protest on several
days in October and November gave similar accounts of the
frightening atmosphere generated by the activities of the
protesters. In particular the fact that the protesters were
able to get quite near the group of parents and children was
extremely distressing and Commissioners expressed concern
about the impact that the abusive language and threats
uttered by the protesters would have on the children. Some
Commissioners found it disturbing that many of the security
personnel faced the children and their parents rather than
the protesters.
[12] On
23 October 2001, the anniversary of a particularly horrific
bombing on Shankill Road, the protest was silent. Before
they walked up Ardoyne Road parents were informed by Fr
Aidan Troy, the chairman of the board of governors of the
school, that a death threat had been received by Ulster
Television, warning that anyone who walked along the road to
the school that day would be killed. As the parents and
children proceeded along Ardoyne Road, the protesters stood
silently but with prominently displayed placards.
Commissioners reported a particularly chilling and
intimidating atmosphere during that particular protest.
[13]
Fr Troy was been actively involved in supporting and
advising the parents of the schoolchildren throughout the
dispute. He has also been involved in a number of
discussions with police officers as to how the dispute
should be policed. He accompanied the children and the
parents daily to and from the school in the latter stages of
the protest. He was a particular target of the protesters,
being singled out for crude and offensive abuse and having
been spat on regularly. Fr Gary Donegan, a priest in Holy
Cross parish since 2001, described similar experiences. He
too has been targeted and attacked for his support of the
children and parents. In his affidavit he described movingly
his perception of the impact that these events have had on
the lives of the schoolchildren. Similar evidence has been
given by the headmistress of the school and the general
medical practitioner Dr Tan who told of many consultations
by young patients who attended the school. They displayed a
wide range of nervous symptoms. Many of the young children
required counselling even after the protest ended.
[14]
Fr Troy has made a number of affidavits about various
aspects of the protest and the experiences of the children
and their parents. It is not necessary to set out all the
averments that he has made in the course of those
affidavits. He has recounted a particularly unpleasant
experience on 3 September 2001 when police erected screens
that required the school group to walk along the pavement
hemmed in on one side by the screens and on the other by a
line of police officers barely separating them from the
protesters. He has described various contacts that he had
with senior police officers and other officials about the
policing of the protest. He has discussed the different
tactics deployed by police at various stages of the dispute
and commented on these. He has expressed views as to the
motivation of those responsible for policing decisions and
has given a comprehensive list of the most disturbing and
frightening aspects of the dispute. I have read and closely
considered all of these averments.
[15]
During the contacts that Fr Troy had with various police
officers there were sometimes differences of view as to how
the policing arrangements should be conducted. There were
also disagreements as to what had taken place and the
recollection of some officers and the priest as to what
passed between them did not always coincide. For the
purposes of this case it is unnecessary for me to resolve
those conflicts and, save for acknowledging that they
occurred, I make no further comment on them.
[16]
It is likewise unnecessary to set out all of the evidence of
the deponents who have made affidavits on behalf of the
respondents. A brief outline will suffice. Chief
Superintendent Maxwell is the district commander for the
area that includes Holy Cross school. He has overall
responsibility for all aspects of policing in North Belfast.
He claimed that throughout the dispute police had sought to
do everything possible to facilitate the safe passage of
children and their parents to the school. Police considered
that the school should remain open and that parents should
not bow to the intimidation presented by the protesters. But
constraints on the policing actions that could be taken
clearly existed, for instance, the risk that certain types
of action would expose the children to greater risk of
trauma or injury. Throughout the safety of the children
remained the paramount consideration for the police. More
aggressive police tactics would undoubtedly have led, Mr
Maxwell believed, to even more serious public disorder and
the probable involvement of loyalist paramilitary
organisations. The lives of the parents and children would
have been imperilled if this had happened.
[17]
The chief superintendent acknowledged the failure of the
'screens strategy' on 3 September 2001 but asserted that it
was immediately replaced by a 'vehicles screens strategy'
which proved successful. A revision of this was introduced
on 5 November 2001 whereby a greater distance between the
protesters and the parents and children was maintained.
[18]
Up to January 2003 a total of thirty-seven individuals had
been prosecuted and all available evidence remained under
consideration for further possible prosecution. The protest
demanded a vast commitment of resources. When it was at its
height up to 700 members of the security forces were
deployed daily to police it. At the time there were other
considerable demands on police resources, particularly in
North Belfast. Despite this, every tactical option was
considered to protect the children and parents.
[19]
At the time of the protest Alan McQuillan was the assistant
Chief Constable in charge of the urban region of Northern
Ireland. Among other duties he was responsible for
monitoring the performance of district commanders such as Mr
Maxwell. He made two affidavits in which he averred that the
overriding concern of the police in dealing with the protest
was the safety of the parents and children but the 'real
risk' of serious violence elsewhere and the risk of attacks
on Catholic schools that might be sparked by the handling of
the protest had to be considered also. Police actively
encouraged the two communities to resolve their differences.
Although the police had to have regard to a broad range of
issues and interests, they were particularly alert to the
rights of the children and their parents arising under
articles 2 and 3 of the European Convention on Human Rights
and Fundamental Freedoms.
[20]
Mr McQuillan asserted that throughout the protest police
attempted to control the protest and the area generally in a
manner that was both fair and professional, respecting and
balancing the rights of all those involved. To this end
police strategies were reviewed on a daily basis. One of the
options considered was that the children should be conveyed
with their parents to the school in an armoured bus. This
was offered to the parents but was refused.
[21]
Chief Inspector Purce was the ground commander in the
policing operation on 1 October 2001 and on a number of
other occasions. He described the police action taken on a
number of specific dates and the change in tactics that
occurred towards the end of the protest. He said that gaps
between landrovers were kept to a minimum and police
prevented access by protesters to the group of parents and
children.
[22]
One of the main areas of factual dispute between the parties
related to meetings that took place between the Chief
Constable, Sir Ronnie Flanagan, and members of the Human
Rights Commission. On 6 September 2001 a delegation from the
Commission met the Chief Constable. At that meeting,
according to Mr McGuinness, he asked the Chief Constable
whether he would "walk his child up the road". Mr
McGuinness claimed that the Chief Constable replied that he
would and that he would expect the police to
"facilitate" him. Mr McGuinness claimed to recall
the Chief Constable saying that the protest was a
"black and white public order issue".
[23]
A further meeting took place on 25 October 2001. At that
meeting Mr McGuinness said that he told the Chief Constable
that the protest had now become ritualised; that the road
was open at all times except when the children were walking
to and from school; that here was a sense of weariness on
everyone's part and that this had led to laxness on the part
of the police about keeping the protesters away from the
parents and children; that there were noticeable gaps in the
police line; that the police appeared to tolerate the
obscene and degrading language that was directed to the
parents and children by the protesters; and, that the
children were unable to distinguish between the masked
protesters and the masked policed officers in full riot
gear.
[24]
Mr McGuinness also gave his recollection about a concession
made by the Chief Constable in relation to the need to take
measures to ensure the 'best interests of the child'. This
is what Mr McGuinness said on that subject: -
"On my recollection of the meeting, the Chief
Constable conceded that in organising the policing
operation they had not taken into account the best
interests of the child and that the security arrangements
which they had made had not factored this into the
equation."
In this recollection Mr McGuinness was supported by two
other commissioners, Patricia Kelly and Inez McCormack.
[25]
According to Mr McGuinness the Chief Constable also
responded to the suggestion that there should be a more
vigorous police reaction to the protest. The salient parts
of Mr McGuinness's affidavit on this topic are as follows: -
"52. The Chief Constable also voiced the opinion that
increased security and an arrest policy could have, as he
described it, a 'consequential impact' producing a
reaction elsewhere. He raised as examples the
vulnerability of other schools in the area.
53. The Chief Constable also advised that there had been
nine separate initiatives aimed at resolving the dispute
and that he was currently awaiting the conclusion of the
final one of those, which involved MLAs. He was anxious
that this be allowed to run its course before stepping up
security or arrests.
54. He confirmed that by 25 October 2001 only ten arrests
had taken place for offences connected with the protests.
He conceded that he was not entirely happy with the
situation and I understood, coming away from the meeting,
that a more robust policing operation could be expected
thereafter."
[26]
Sir Ronnie Flanagan disputed many of these averments. In
particular he suggested that while many politicians,
community representatives and clergymen were describing the
situation as extremely complicated involving a wide range of
social issues, he viewed the question of whether the
children should be able to walk to their school unmolested
as a 'black and white issue'. He had not said that the
protest was a "black and white public order
issue". He denied that he had said that he would walk
his child along the road; rather he said that he would
expect police to provide the choice for parents whether to
walk along Ardoyne Road. He expressly denied that he had
conceded that police had not taken into account what was in
the best interests of the child. On the contrary, he claimed
to have emphasised during the meeting of that everything
that was being done by the police "was driven by what
was in the best interests of the children". In support
of this claim the Chief Constable produced letters that had
passed between the Chief Commissioner, Professor Brice
Dickson, and himself after the meeting. In his letter of 1
November 2001, Professor Dickson had urged that "the
children's fundamental rights … be given be very great
weight indeed". Sir Ronnie replied on 7 November to the
effect that "the rights of the children are to the
forefront of our thinking in all we do and all we are
seeking to achieve".
[27]
Notes of the meeting were kept by a representative of the
Commission. Sir Ronnie did not accept that these accurately
recorded what had been said at the meeting but he is noted
as having said that his "paramount consideration was
the welfare of the children, in that if the situation
worsens not only the children from Holy Cross may be kept
from school, but children in other schools in North Belfast
may also be affected". The following paragraph of the
notes reads: -
"However, the Chief Constable agreed that the current
human rights and legal advice from video evidence and
reports probably is not taking into consideration the best
interests of the child principle."
[28]
On 31 October 2001 a meeting took place between the security
minister, Jane Kennedy MP and members of the Human Rights
Commission. Mr McGuinness was one of the commissioners who
attended this meeting. He gave the following account of it:
-
"61. The description of what occurred at the meeting,
which I provide below, is based on my personal
recollection of the meeting on 31 October 2001.
62. I raised the following issues with the minister:
(i) the proximity of the protesters to the parents and
children, particularly given that there had been two bomb
attacks, one injuring a police officer and the other
injuring a soldier. The second appeared to have involved a
more dangerous device as the soldier involved sustained
life threatening injuries. In response to this she replied
that , "in the interim it had been noted that bombers
were able to throw pipe bombs across the houses in
Newington and hit a child." I felt that this was an
argument in favour of having the protesters further from
rather than closer to the parents.
(ii) I also raised the poster referring to Fr Troy as a
paedophile. She informed me that, as far as she was aware
the poster was not on display every day.
63. I also recollect that the minister was advised of our
concern that 'the best interests of the child' principle
did not appear to have informed the policing operation.
64. In response the minister tried to impress upon myself
and the other commissioners the steps that had been taken
to resolve the dispute and advised us of the current
attempts to negotiate a settlement which involved MLAs
acting under the authority of the Office of First Minister
and deputy First Minister.
65. I also recollect that she was advised that the Chief
Constable appeared frustrated that all of these
initiatives were failing and she advised that the Chief
Constable did not know the extent and detail of what was
going on.
66. She advised me that police were arresting and charging
people with offences, which occurred during the protests,
yet at that stage, to the best of my knowledge,
approximately 12/13 arrests had taken place over the
entire period, a number of arrests having taken place on
26 October subsequent to our meeting with Ronnie Flanagan
on 25 October."
[29]
A replying affidavit on behalf of the minister was supplied
by David Watkins who is the senior director (Belfast) and
the director of policing and security in the Northern
Ireland Office. He stated that during August 2001 the
difficulties relating to the school were the subject of
discussion a wide range of meetings involving, among others,
officials of the Northern Ireland Office, local politicians,
community representatives, mediators and others with an
interest in the dispute. In September 2001 the security
minister held meetings with local politicians with the aim
of resolving the dispute. On 6 September 2001 she met the
school principal and Fr Troy. The following day she met two
local MLAs and as a result a joint press release was issued
on behalf of the Secretary of State for Northern Ireland and
the Ulster Unionist party and the Social Democratic and
Labour party.
[30]
In acknowledgment of the gravity of the situation it was
decided to institute a formal mechanism to address issues
surrounding the dispute that required to be dealt with
quickly. An interdepartmental group comprising
representatives of the devolved administration and the NIO
was formed. Officials from NIO liaised with representatives
of the local community in an effort to bring the protest to
an end.
[31]
It was against this background that the meeting with NIHRC
took place on 31 October. The security minister did not
accept the accuracy of Mr McGuinness's account of the
meeting and protested (in a letter to the Chief
Commissioner) that none of the commissioners present at the
meeting had disclosed that what passed between them and the
minister would be included in an affidavit in these
proceedings. Mr Watkins asserted that, while the Secretary
of State is accountable to Parliament for law and order in
Northern Ireland and is responsible for the statutory
framework for policing and security, all operational
measures and decisions were matters for the Chief Constable.
The arguments
[32] For
the applicant Mr Treacy QC advanced a series of
comprehensive and wide-ranging arguments. These can perhaps
be summarised as follows: -
1. The policing operation failed to adequately protect the
rights of the children and parents arising under various
articles of the European Convention on Human Rights and
Fundamental Freedoms.
2. The police approach to the handling of the protest
should have been informed by the United Nations Convention
on the Rights of the Child.
3. The Police (Northern Ireland) Act 2000 imposes a
general duty on police to protect life and preserve order.
These statutory obligations require to be read compatibly
with ECHR. The police were in default of the requirements
of the legislation.
4. The police strategy was fundamentally flawed in that it
dealt with the protest in a manner appropriate to a
contentious parade rather than analysing the requirements
for the protection of the human rights of the children and
their parents.
5. The guiding principle for the proper handling of the
dispute ought to have been 'the best interests of the
child'. This principle did not inform the police strategy.
6. The respondents failed to ensure the effective
implementation of the criminal law.
[33]
The principal arguments made by Mr McCloskey QC for the
respondents were these: -
1. This was not a representative action and any claim for
violation of Convention rights fell to be judged on the
basis of the applicant's rights exclusively.
2. There was no breach of the applicant's Convention
rights. In particular the police were not aware of any
real or immediate threat to the applicant's right such as
would be required to give rise to a duty under article 2
of ECHR; the applicant failed to meet the 'minimum
threshold' test required to establish a breach of article
3; in any event, the obligation on the respondents was to
take reasonable steps to prevent the offending treatment
and this had been done. Article 8 of the Convention was
not engaged. Article 14 did not arise because the
applicant failed to satisfy the 'ambit' test set out in Rasmussen
v Denmark (1985) 7 EHRR 372. Article 2 of the First
Protocol could not be invoked by the applicant.
3. Reliance on the United Nations Convention on the Rights
of the Child was misconceived because it was an
international treaty to which resort could not be had in
domestic law. In any event, the requirement of the
Convention was that the best interests of the child be 'a
primary consideration' and there was no evidence that this
had not been observed.
4. The police were obliged to be alert to the potential
rights of protesters under articles 10 and 11 of the
Convention. While much of the conduct of the protesters
could not be justified, it was simplistic to suggest that
no balancing exercise required to be performed.
5. There was insufficient evidence to support the
applicant's claim that there had been a breach of any of
the respondents' legal obligations and in particular the
duties impose on the first respondent under the Police
(Northern Ireland) Act 2000.
Article 2
[34]
So far as is material article 2 of ECHR provides: -
"Everyone's right to life shall be protected by law.
No one shall be deprived of his life intentionally save in
the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided
by law."
[35]
The jurisprudence of the European Court of Human Rights has
for long recognised that this provision gives rise to
positive as well as negative duties. In particular where the
state has reason to apprehend that there is a threat to the
life of an individual it must take appropriate steps to
protect the person threatened against that risk. Lester and
Pannick Human Rights Law 2nd edition puts
the matter thus: -
"The ECtHR continues to recall 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. A state is therefore
obliged by article 2 to put 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 punishment of breaches of such
provisions. It may also, in appropriate circumstances, be
under a positive obligation to take preventive operational
measures to protect an individual or individuals whose
life is at risk from the criminal acts of another
individual."
[36]
Not every perceived threat will give rise to an obligation
under article 2. In Osman v United Kingdom (2000)
EHRR 245, [1998] ECHR 23452/94 ECtHR said at paragraph 116:
-
"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 [i.e. an obligation
to protect life under article 2 (1)] 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. …
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 (see para. 115 above), 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. … 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."
[37]
The actions of many who engaged in this protest were
disgraceful. The intimidating, threatening and oppressive
behaviour of several of the protesters towards innocent
schoolchildren and their parents was indefensible. Mr
McCloskey is, however, unquestionably right in his claim
that the applicant, to maintain a claim that the Convention
has been violated, must show that she has been the victim of
the alleged infringement of the right invoked. Section 7 (1)
of the Human rights Act 1998 provides: -
"7. - (1) A person who claims that a public
authority has acted (or proposes to act) in a way which is
made unlawful by section 6(1) may-
(a) bring proceedings against the authority under this
Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in
any legal proceedings,
but only if he is (or would be) a victim of the unlawful
act."
[38]
Section 7 of HRA reflects the approach of ECtHR. It has
consistently been held that an actio popularis is not
permitted. In Klass and others v Germany (1980) 2
EHRR, [1978] ECHR 5029/71 paragraph 33 the court said: -
"33. While Article 24 allows each Contracting State
to refer to the Commission "any alleged breach"
of the Convention by another Contracting State, a person,
non-governmental organisation or group of individuals
must, in order to be able to lodge a petition in pursuance
of Article 25, claim "to be the victim of a violation
. . . of the rights set forth in (the) Convention".
Thus, in contrast to the position under Article 24 –
where, subject to the other conditions laid down, the
general interest attaching to the observance of the
Convention renders admissible an inter-State application
– Article 25 requires that an individual applicant
should claim to have been actually affected by the
violation he alleges (see the judgment of 18 January 1978
in the case of Ireland v. United Kingdom, Series A
no. 25, pp. 90-91, paras. 239 and 240). Article 25 does
not institute for individuals a kind of actio popularis
for the interpretation of the Convention; it does not
permit individuals to complain against a law in
abstracto simply because they feel that it contravenes
the Convention. In principle, it does not suffice for an
individual applicant to claim that the mere existence of a
law violates his rights under the Convention; it is
necessary that the law should have been applied to his
detriment. Nevertheless, as both the Government and the
Commission pointed out, a law may by itself violate the
rights of an individual if the individual is directly
affected by the law in the absence of any specific measure
of implementation."
[39]
To assert a claim that the Convention has been breached the
applicant must therefore establish that she has been a
victim of the alleged violation. I have no difficulty in
acknowledging that she felt under threat on many occasions.
I am persuaded that she genuinely believed that her life was
threatened. But I simply cannot accept that it has been
proved that the authorities knew or ought to have known at
the time of the existence of a real and immediate risk to
the applicant's life. I have concluded therefore that no
violation of article 2 has been established.
Article 3
[40]
It was claimed that the failure of the police to prevent the
protesters behaving as they did towards the applicant
constituted a breach of article 3 of the Convention. It
provides: -
"No one shall be subjected to torture or to inhuman
or degrading treatment or punishment."
[41]
In Keenan v United Kingdom (2001) 33 EHRR 913 ECtHR
considered the question of the type of behaviour and its
effect on the victim required to establish a violation of
article 3. At paragraphs 108/9 the court said: -
"108. The Court recalls that ill treatment must
attain a minimum level of severity if it is to fall within
the scope of Article 3. The assessment of this minimum is
relative: it depends on all the circumstances of the case,
such as the duration of the treatment, its physical and/or
mental effects and, in some cases, the sex, age and state
of health of the victim (see, amongst other authorities,
the Tekin v Turkey judgment of 9 June 1998, Reports
1998-IV, § 52).
109. In considering whether a punishment or treatment is
"degrading" within the meaning of Article 3, the
Court will also have regard to whether its object is to
humiliate and debase the person concerned and whether, as
far as the consequences are concerned, it adversely
affected his or her personality in a manner incompatible
with Article 3 (see eg the Raninen v Finland
judgment of 16 December 1997, Reports 1997-VIII, p
2821-22, para 55). This has also been described as
involving treatment such as to arouse feelings of fear,
anguish and inferiority capable of humiliating or debasing
the victim and possibly breaking their physical or moral
resistance (Ireland v the United Kingdom judgment
of 18 January 1978, Series A No. 25, p 66, para 167), or
as driving the victim to act against his will or
conscience (see eg the Commission's opinion in the Greek
Case, Ch IV, p 186)."
[42]
Mr McCloskey argued that the treatment to which the
applicant was subjected did not pass the 'threshold test'
for article 3. He further submitted that the allegations of
ill treatment amounting to a violation of article 3 must be
proved to the criminal standard, citing Indelicato v
Italy (2002) 35 EHRR 38, and suggested that the evidence
proffered by the applicant fell conspicuously short of
meeting that exacting standard. It is true that ECtHR has
devised a test for article 3 violations that might be
considered stringent. One must recognise, however, that it
has repeatedly been emphasised that any assessment of
offending conduct must be directly related to the particular
facts of an individual case and that contemporary views as
to what may be said to constitute inhuman or degrading
treatment must be dictated by current standards. It is
unnecessary for me to reach a conclusion on this aspect of
the case for reasons that will presently appear. I would not
be prepared to say, however, that the indignities, threats
and naked intimidation to which the applicant was subject
would not amount to 'inhuman or degrading' treatment for the
purposes of article 3.
[43]
If the applicant was subjected to treatment falling within
article 3 the duty on the state authorities is to take
reasonable steps to prevent the offending treatment. In DP
& JC v United Kingdom (2003) 36 EHRR 14, , [2002]
ECHR 38719/97 ECtHR said: -
"Article 3 enshrines one of the most fundamental
values of democratic society. It prohibits in absolute
terms torture or inhuman or degrading treatment or
punishment. 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 together 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 (see
A v UK (1998) 5 BHRC 137 at para 22). These measures
should … include reasonable steps to prevent
ill-treatment of which the authorities had or ought to
have had knowledge (mutatis mutandis, Osman v UK
(1998) 5 BHRC 293 at para 116."
[44]
In deciding whether the measures taken by the police were
reasonable, two important considerations arise. First, as
ECtHR said in Osman, "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" have to be taken
closely into account. Secondly, an appropriate area of
discretionary judgment must be allowed the police
authorities in their choice of policing strategies and
operational decisions – see, in this context Re A's
application for judicial review [2001] NI 335, 345.
[45]
In a case such as this, there is an understandable
inclination to view the matter of policing in
straightforward terms. Innocent children and their equally
innocent parents were being prevented from making their way
peaceably to school. They were entitled to do so without
having to endure the brickbats and intimidation of others
– especially since these so-called protesters avowedly
impeded their way for reasons that had nothing to do with
the schoolchildren and their parents. The immediate reaction
of right thinking people is that those who intimidated,
threatened and attacked those children and parents, who
blocked their way and frightened them were committing
criminal offences; they should have been prevented from
doing so; they should have been arrested and prosecuted.
[46] 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.
Article 14
[47]
Article 14 of ECHR 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"
[48]
It is well established that this is not a freestanding
provision. In order to rely on article 14 it is necessary
for a claimant to show that he or she has been the victim of
a violation under another provision of the Convention or
that their claim comes 'within the ambit' of such a
provision. In the present case Mr McCloskey argued that the
applicant's claim did not come within the ambit of any other
article of the Convention and relied on the decision of
ECtHR in Rasmussen v Denmark (1985) 7 EHRR 371.
[49]
It is not necessary for me to reach a conclusion on this
argument since I am satisfied that there is no evidence to
support the contention that the manner in which the protest
was policed discriminated against the applicant. For that
reason it is also unnecessary for me to consider the further
argument of the respondents that any distinction that might
be said to exist in the manner of the treatment of the
applicant as opposed to that rendered to others could not be
said to be on the basis of any characteristic or status
personal to her.
Article 2 of the First Protocol
[50]
This provides: -
"No person shall be denied the right to education. In
the exercise of any functions which it assumes in relation
to education and to teaching, the State shall respect the
right of parents to ensure such education and teaching in
conformity with their own religious and philosophical
convictions."
[51]
The respondents' primary submission in response to the
applicant's claim that there had been a violation of this
article was that this could not be asserted by the applicant
since her right to education was not in issue. It appears to
me, however, that the more prosaic, but equally effective,
defence to the claim is that the applicant's daughter has
not in fact been denied her right to education. On the
contrary, because of the sterling efforts of the parents and
the dedication of the teachers led by their admirable
principal the right of the applicant's child and the other
schoolchildren to an education was assured.
United Nations Convention on the Rights of the Child
[52]
Article 3 of this Convention provides: -
"1. In all actions concerning children, whether
undertaken by public or private social welfare
institutions, courts of law, administrative authorities or
legislative bodies the best interests of the child shall
be a primary consideration.
2. State parties undertake to ensure the child such
protection and care as is necessary for his or her well
being, taking into account the rights and duties of his or
her parents, legal guardians, or other individuals legally
responsible for him or her, and, to that end shall take
all appropriate legislative and administrative
measures."
[53]
The respondents object that the applicant may not have
recourse to this Convention under domestic law – R v
Secretary of State for the Home Department ex parte Brind
& others [1991]
1 AC 696. They further object that the applicant may not
invoke the Convention because it applies only to children.
These are no doubt effective answers to the applicant's
reliance on the Convention but I prefer to base my rejection
of her argument on the ground that it has not been shown
that the respondents have failed to accord the 'best
interests of the child' the primacy of importance that the
provision demands. I shall deal with this aspect at greater
length in a different context below.
The Police (Northern Ireland) Act 2000
[54]
In so far as they are relevant, sections 32 and 33 of this
Act (which are the provisions that the applicant relied on)
provide: -
"32. - (1) It shall be the general duty of
police officers-
(a) to protect life and property;
(b) to preserve order;
(c) to prevent the commission of offences;
(d) where an offence has been committed, to take
measures to bring the offender to justice.
…
(5) Police officers shall, so far as practicable, carry
out their functions in co-operation with, and with the aim
of securing the support of, the local community.
33. - (1) The police shall be under the direction
and control of the Chief Constable."
[55]
The various obligations imposed by these provisions cannot
be regarded as absolute in their terms. Thus a police
officer cannot be expected in every conceivable situation to
prevent the commission of offences, oblivious to the
possible consequences of his action. If, for instance, to
intervene to stop a crime would place himself or a member of
the public in mortal danger, he is not compelled to do so.
It is, of course, his general duty to fulfil the statutory
obligations provided for and he may not refrain from doing
so arbitrarily or capriciously. Where, however, as in this
case, a judgment is made, in the interests of general public
order throughout the community, that an aggressive policy of
arrest and detention of all observed to be breaking the
criminal law should not be pursued, it does not follow that
breach of section 32 is thereby automatically established.
[56]
In this case the judgment was made that a more aggressive
approach to the arrest and detention of those who were seen
to be committing criminal offences would lead to more
widespread disorder. What might be described as a policy of
containment of the dispute was preferred for a substantial
part of its duration. I have not been persuaded that this
policy was adopted in dereliction of the police officers'
duty or by reason of a reluctance to fulfil the statutory
obligations under sections 32 and 33 of the Act. I do not
accept, therefore, that any breach of these provisions has
been made out.
The 'contentious parade' strategy
[57]
The applicant's complaint that the police took account of
the opinions and interests of the protesters has two
aspects. Firstly it is suggested that the police were all
too ready to seek the views of the protesters and to cater
for their wishes to the detriment of the schoolchildren and
their parents. Secondly, it is claimed that the police
should not have had regard to any 'rights' of the protesters
to impede the progress of the children to school; this was,
the applicant claims, a wholly illegitimate form of protest
directed at innocent children who had no influence over or
power to redress the grievances that were supposedly the
reason for the protest. This erroneous approach led the
police to deal with policing strategy on the basis that this
was akin to a contentious parade where the interests of both
sides required to be equally catered for.
[58]
One can certainly sympathise with a view that these
protesters should not have been afforded much in the way of
consideration of their claims to be entitled to protest,
given the nature of that protest and the distress and fear
that they instilled in the minds of these young children. It
appears to me, however, that the police cannot be faulted
for exploring with the representatives of those who were
protesting any possible means of bringing it to an end.
Moreover, however unpalatable it may appear at first blush,
the possible rights of the protesters under articles 10
(freedom of thought, conscience and religion) and 11
(freedom of expression) of the Convention could not simply
be ignored by the police. On the evidence available to me I
cannot be satisfied that the police were wrong either to
attempt to mediate with the protesters' representatives or
to keep in mind their rights to protest.
The best interests of the child principle
[59]
All the principal deponents who have supplied affidavits on
behalf of the first respondent have asserted that they bore
closely in mind the need to give particular consideration to
the interests of the schoolchildren. The applicant has
relied crucially on the evidence of the human rights
commissioners that the former Chief Constable accepted that
this had not been considered in arriving at the policing
strategy for the protest.
[60]
The Chief Constable did not accept the accuracy of the note
that was prepared of the meeting between him and the
commissioners. In any event, I have found the note on this
critical issue less than clear. It refers to 'human rights
and legal advice'. It is not apparent whether this purports
to convey that the advice that the police were receiving was
deficient. Another possible interpretation of the note is
that the events as revealed on video did not give the
appearance that the rights of the child were being accorded
the primacy of importance that they deserved.
[61]
The onus of establishing the accuracy of the accusation that
the police failed to have regard to the 'best interests of
the child' principle rests, of course, with the applicant
– see Ex parte Curl (unreported) and Supperstone
& Goudie Judicial Review 2nd edition
paragraphs 17.8 – 17.9. The evidence in support of this
proposition is at best equivocal and, in the face of the
express assertions to the contrary, I am not prepared to
hold that it has been established.
The failure to secure the effective implementation of
the criminal law
[62]
For the reasons given earlier in this judgment, particularly
in paragraphs [54] and [55] I do not consider that either
the Police Service or the Secretary of State failed to
secure the effective implementation of the criminal law.
Conclusions
[63]
The so called protest directed towards the young children of
Holy Cross school for girls is one of the most shameful and
disgraceful episodes in the recent history of Northern
Ireland. The sheer weight of evidence about these terrible
events permits no conclusion other than that many of those
involved in the protest had as their purpose the terrorising
of these innocent children and their parents.
[64]
The sense of outrage that these events provoked cannot be
allowed to substitute for a dispassionate and scrupulous
examination of the legality of the policing strategy and the
decisions taken as to how the protest should be handled,
however. That appraisal must take place within a
well-defined legal framework. Having conducted that
assessment, I have concluded that the policing judgments
made have withstood the challenge that has been presented to
them. The application for judicial review must be dismissed.
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