Court of Appeal in Northern Ireland Decisions

 

Neutral Citation No. [2006] NICA 37	Ref:	CAMC5625
Judgment: approved by the Court for handing down	Delivered:	26/09/2006
(subject to editorial corrections)

 

 

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

 

QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)

 

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ON APPEAL FROM THE HIGH COURT OF JUSTICE IN

NORTHERN IRELAND

 

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IN THE MATTER OF AN APPLICATION BY ‘E’ FOR JUDICIAL REVIEW

 

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CAMPBELL LJ

 

[1]        In 2001 there were 230 pupils attending Holy Cross Girls’ Primary School, which is on Ardoyne Road in North Belfast. They were all aged between 3 and 11 years. For many of these pupils the usual route from home to the school was along Ardoyne Road. As they went along Ardoyne Road they passed through an area bounded by Glen Bryn Housing Estate. The residents of this estate and some of the adjoining streets are mostly Protestant and regarded as being ‘Loyalist’ in outlook.  It is an enclave in the district of Ardoyne where the religion of the residents is predominantly Catholic and many of them are regarded as being ‘Nationalists’.

 

[2]        Between 19 June and the end of November 2001 during the school terms the pupils and parents accompanying them on the journey to the school faced a vociferous protest as they passed Glen Bryn Estate. They were subjected to attacks with missiles and to insults and intimidation. At the time it was claimed that this was in protest against a failure on the part of the Government to provide local services. Other causes have also been advanced but none of these explain why the protest was aimed at young children going to school nor could possibly justify it.  In his judgment in the court below (at paragraph 63) Kerr J (as he was then) refers to these events on the Ardoyne Road as “one of the most shameful and disgraceful episodes in the recent history of Northern Ireland”. This court and any objective observer could only agree with this comment.  

 

[3]        ‘E’, the mother of one of the children affected by the protest, issued proceedings in November 2001 for 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 had failed to secure the effective implementation of the criminal law and to ensure safe passage for her and for her daughter to the school. ‘E’ was afforded anonymity for the safety of her child and the proceedings concluded in June 2004 when her application was dismissed.

 

[4]        In December 2004, after hearing that lasted a number of days, a differently constituted Court of Appeal gave the applicant leave to appeal from the dismissal of her application although the time for doing so under the Rules of the Supreme Court had passed. Grafted onto this application by ‘E’ was an application by the Chief Constable and the Secretary of State for the court to exercise its discretion in favour of applying the principle enunciated by Lord Slynn in R -v- Secretary of State for the Home Department ex p.Salem [1999] 1AC 45 that “appeals which are academic between parties should not be heard unless there is good reason in the public interest for doing so …”. While this issue is not expressly mentioned in the order made by the court it is implicit in the grant of leave to appeal that the court considered that there was good reason in the public interest for allowing the appeal to proceed.

 

[5]        When the appeal came on for hearing the respondents renewed their application under the Salem principle on account of the further period of time that had by then elapsed. It was urged on the court by Ms Quinlivan (who represented ‘E’ on the appeal) that the matter was still of importance as it raised issues concerning the nature and extent of the discretion of the police in a situation where there is a conflict of rights. Other issues raised in the appeal were the extent to which the court should review the actions of the police; the interpretation of the Police (Northern Ireland) Act 2000; the application of the United Nations Convention on the Rights of the Child; and the need for guidance on the right to education. She argued that these are all matters of general legal public interest. Mr McCloskey QC (who appeared with Mr Paul Maguire for the respondents) submitted that these issues are now of academic interest only and that this court could not provide any remedy of practical value to the appellant if she were to succeed in her appeal.

 

[6]        The court accepted that it is required to exercise the discretion given to it with caution. The fact that these proceedings, confined as they are to the rights of the applicant, were initiated at a time when there was widespread public interest in the dispute is not necessarily a reason for proceeding to hear the appeal at this time. To a considerable extent the matter is now of academic interest. However important issues about the Police (Northern Ireland) Act 2000 and the Convention on the Rights of the Child remain to be decided and in view of the earlier decision of the court we did not consider that the further passage of time had altered the position sufficiently to cause us to depart from it and we allowed the appeal to proceed.

 

[7]        The evidence contained in copious affidavits filed on behalf of the appellant, leading to a significant number in reply from the respondent, reveals that there is a marked difference between the parties as to the adequacy of the response by the police to the protest. Parents and observers saw the police close the Ardoyne Road and permit them to pass along it to reach the school only when the police allowed them to do so. Meanwhile the protestors gathered with the knowledge that the parents and children would walk along the road at fixed times. The police view was that if a more aggressive approach was adopted, involving the arrest and detention of those suspected of criminal offences, this could lead to greater and more widespread disorder.

 

[8]        With such a marked difference of opinion between ‘E’ and her witnesses and the police as to the adequacy of the protection provided by them it is necessary to summarise the evidence. First we consider it from the aspect of “E” and her witnesses and then from that of the police officers and others responsible for making decisions as to how to cope with the situation that faced them.

 

The evidence of ‘E’ and her witnesses.

 

[9]        In the affidavit grounding her application for judicial review, ‘E’ describes her experience on going to and from the school with her daughter. On 19 June 2001 as her daughter was returning from school along Ardoyne Road she witnessed an incident in which a number of men attacked a car with hammers and other weapons. The child and her friends were taken back to the safety of the school by a school patrol woman and eventually she made her way home by another route down the Crumlin Road. This experience caused her daughter considerable upset and on the following day the mob was back again and ‘E’ and other parents found it impossible to take their children to school as the police had closed the route along Ardoyne Road. The police told the parents that they could not guarantee their safety or that of their children. On 21 June ‘E’ did not attempt to take her daughter to school as she together with some other parents had held discussions with residents of the Glen Bryn Estate and as a result they knew that the children would not be permitted to pass along the Ardoyne Road to the school.

 

[10]      On Friday 22 June 2001 ‘E’s’ daughter made her way to school by the Crumlin Road. On returning home with her mother after school, by the same route along the Crumlin Road, four people in a car shouted sectarian abuse at them. ‘E’ states that this happened with a number of police officers in the immediate vicinity and they did not take any steps to intervene. This incident caused her daughter much distress and ‘E’ realised then that travelling to the school by the Crumlin Road, the only route then permitted by the police, was unsafe. She decided that in future she would not allow her daughter to go to school unaccompanied.

 

[11]      The school year ended and when the summer holiday began the parents held meetings with ‘Loyalists’ as a matter of goodwill since it was not within their power to meet the demands being made from the Government. These meetings proved fruitless and the ‘Loyalist’ representatives called them off. When the new school term began on 5 September 2001, according to ‘E’, while on her way to the school a public representative from the ‘Loyalist’ camp called her “a Provie bastard” and both she and others were attacked verbally and also physically with bottles and bricks being thrown at them. She claims that the police made no effort to make arrests or to push the crowd back and when she complained to an Inspector he replied that he could not do anything. During the incident she was threatened by someone shouting at her “I’ll have a bullet in your head by tonight”. Within a few days a police officer visited her home and told her that a message had been received that she would be killed on sight and that threat was said to have come from a terrorist organisation called the Red Hand Defenders. Similar warnings were relayed to her on two other occasions and as a result she left her home and she and her daughter went to live in temporary accommodation in a hostel.

 

[12]      ‘E’s’ complaint was that she and her daughter were subjected to threats and abuse and attacked with fireworks and stones and bricks, balloons filled with urine and with dog excrement. Pipe bombs and blast bombs were also used, yet the police allowed the protesters to engage in this activity without making any effort to prevent it occurring. The use of land rovers to keep the two groups apart was, in her opinion, ineffective because the protesters merely reached over them. She provided as an example an incident on 1 October 2001 when a protester walked beside her making her feel that she was about to be attacked and when she complained to an Inspector he did not respond.

 

[13]      ‘E’ claimed that by failing to assert authority over the protesters the police were acting collusively in support of an agenda to reassert historic demographic patterns. She attributed the behaviour of the ‘Loyalist’ crowd to the movement of new families into the area whose political and paramilitary affiliation differed from the loyalist force at that time dominant in the Shankill Road area and this had resulted in a feud between these two groups.

 

[14]      When ‘E’ swore her affidavit, in early November 2001, to her knowledge only eight people had been arrested and some of those who had been admitted to bail on condition that they did not return to the area had done so. She claimed that the police were guilty of discrimination in that no one was arrested after the disturbance at the school in June but by contrast a limited protest by ‘Nationalists’ at a 12^th of July parade in North Belfast was met with screens being put in place and a number of arrests being made.

 

[15]      ‘E’ complained not only of a failure by the police to enforce the law but of unequal treatment as between ‘Loyalists’ and ‘Nationalists’. Independent observers were not permitted by the police to use video cameras to record the scenes on Ardoyne Road and when they protested they were told that members of the ‘Loyalist’ crowd objected to having their actions recorded by video camera. By contrast, ‘E’ said almost daily she saw ‘Loyalists’ recording on video the parents and children as they walked to and from school.

 

[16]      ‘E’ suggested that even a small step such as the erection of screens similar to those used at the July parades would have hidden the protesters from the view of the children and provided them with protection from missiles thrown at them.

 

[17]      When ‘E’ made a further affidavit on 16 November 2001, she said that since her proceedings for judicial review had been lodged there had been a change in police strategy. However, the conditions under which she brought her child to and from school remained frightening and intimidating despite this improvement, and she referred in particular to the increasing proximity of protesters to the parents and children.

 

[18]      A change in policy was also described by Mr Frank McGuinness, a Human Rights Commissioner, who visited the scene on 8 October 2001 with another Commissioner Mr Paddy Kelly. They observed events leading up to the children leaving school at 2.45 pm and watched the build-up of military and security force personnel in preparation for this. A number of military vehicles were used to block Ardoyne Road close to Alliance Avenue. “Wings” were attached to the vehicles and these acted as gates and parents had to wait behind them until they were given permission to approach the school. The sense of anxiety among the parents was noticeable. If parents came late they were not allowed to use the Ardoyne Road route and had to go by the Crumlin Road and through St Gabriel’s playing fields to the school.

 

[19]      On the occasion of Mr McGuinness’s visit the gates were opened and parents then moved along the road with police officers lined on either side to escort them. The officers were wearing riot gear which he said added to the atmosphere of tension. The parents were photographed by the police as they came through the gate but they were not permitted to take photographs. After they passed through the gate these were closed and as they walked along the road there were army and police vehicles on either side though not placed so as to create a continuous barrier. Some police officers faced the parents and others faced the crowd. As the parents approached the school there was a lack of security beyond the escorting police officers. Offensive placards were on display including one describing Father Troy (the Chairman of the School Board of Governors) as a paedophile and death threats directed towards the parents could be heard.

 

[20]      Mr McGuinness said that the school appeared to be functioning normally though the children could not be permitted to use the school yard in the sight of local residents and a local leisure centre was not open to them due to threats from a ‘Loyalist’ paramilitary organisation. On Saturdays children returning for extra tuition in preparation for sitting the transition test went to another school. He observed signs of weariness and anxiety among parents, teachers and children.

 

[21]      On his return journey along Ardoyne Road Mr McGuinness said that the parents and children were subjected to sectarian abuse, some of which was aimed at particular parents by name. Protesters were seen using video cameras but no effort was made by the police to prevent this. Mr McGuinness returned on 23, 24 and 25 October 2001. The first of these dates marked the anniversary of an IRA bomb being placed on the Shankill Road with considerable loss of life and on arrival the parents were told of a death threat that had been received by a television station from the Red Hand Defenders to anyone making the journey along the Ardoyne Road to the school. Parents were given the option of taking the alternative route to the school by the Crumlin Road and through a small gate giving pedestrian access into the grounds of St Gabriel’s Secondary School. From there they had to use, what Mr McGuinness describes as a “crude roadway”, which appeared to have been cut to connect the playground area of St Gabriel’s with an all weather pitch running adjacent to the perimeter of Holy Cross School. The majority of parents however chose to walk up the Ardoyne Road; the protesters were silent but held up placards carrying the names of those killed in the Shankill bombing. He found this silence, coupled with the threats that had been made, caused the experience to be all the more alarming.

 

[22]      The Chief Constable met with the Chief Commissioner of the Human Rights Commission and other Commissioners on 25 October 2001. Mr McGuinness said that when he asked the Chief Constable if he had any advice to offer to the Commission he responded that it was a black and white public order issue. Mr McGuinness asked the Chief Constable if he would walk his child up Ardoyne Road and he said he would and would expect the police to facilitate him. It is not accepted by the Chief Constable that he conceded at this meeting that he had not taken into account the “best interests of the child” and that security arrangements had not factored this into the equation. The Chief Constable, according to Mr McGuinness’ version of the meeting, was of the opinion that an increased security and arrest policy could have a “consequential impact” producing a reaction elsewhere. At that time there had been more initiatives to resolve the dispute and the outcome of a final attempt was awaited. While this possibility remained open the Chief Constable appeared anxious not to prejudice it by stepping up the level of security and arrests. By 10 October 2001 only 10 arrests had taken place in connection with the protest and the delegation considered that a more robust police operation could be expected.

 

[23]      Prior to the mid-term break at the school, on 26 October senior officers appeared in riot gear and protesters wearing ‘Johnny Adair’ face masks were heard shouting “trick or treat” which was understood to be a reference to the Greysteel murders. Although the protesters claimed that as the children were not the subject of their protest it would continue over the pupils’ mid-term break, no protest was seen to take place when Mr Mc Guinness visited the Ardoyne Road between 29 and 31 October.

 

[24]      ‘E’ accompanied members of the Human Rights Commission when they met Jane Kennedy MP, the Security Minister, to complain about the proximity of the protesters to parents and children on the route to the school.

 

[25]      ‘E’ said that after the mid-term break she noticed a change in the policing of the protest. Officers no longer wore riot helmets nor carried shields and efforts were made to relax the tension. Parents could now travel along the road between 8.45 and 9.15 am and between 2.45 and 3.15 pm on the return journey. The protesters appeared to have approached nearer to the police lines and gaps between police vehicles allowed them closer to the children and parents.  Despite some improvement conditions remained, in ‘E’s’ view, abnormal and intolerable.

 

[26]      Professor Christine Bell, a Human Rights Commissioner, visited the school and walked back along Ardoyne Road on 18 October 2001. In her affidavit she describes the impression she gained of the school trying to maintain a sense of normality while there was a feeling that it was under siege. Some parents and grandparents remained at the school all through the day as some children did not feel safe unless they were on hand. Parents appeared stressed and worried about their children. Many women complained about the sexualised abuse they had received from the protesters being called ‘Fenian whores’ or ‘sluts’. When Professor Bell accompanied parents and children on the journey home from school she found it intimidating and stressful and she described it as like being on a march through a highly militarised tunnel while under fear of verbal and physical abuse. She voiced her concern for the well-being of the children and expressed the view that the State had a positive obligation to address the situation.

 

[27]      Father Gary Donegan is a priest in the parish of Ardoyne and with Father Troy he accompanied the children on the journey to and from the school on a number of occasions. They were both spat upon and subjected to abuse. Their main concern was for the children and their welfare. Father Troy saw the police as conducting their operation as if there were two equal sides in the dispute and not recognising that the children were innocent and without recognising that their rights were paramount. This view is echoed by Father Donegan who considered that the State did not place the children’s safety and security as having the highest priority. In effect the children were policed rather than the protestors. He too felt that there was a difference in the way that the two communities were policed. Water cannon were used against ‘Nationalists’ in July 2001 but not introduced against the ‘Loyalists’ at Glenbryn at any stage of their protest.

 

[28]      Ms. I. McCormick, who is also a Human Rights Commissioner, visited the school on a number of occasions and she also walked the route along Ardoyne Road. She said that at the meeting on 25 October 2001 she asked the Chief Constable whether the principle of ‘the best interests of the children’ had been taken into account in making decisions on security arrangements. She said that he indicated that while the police were very concerned about the children they had not used this particular principle as a factor in the decision-making process. A major concern he said had been the consequential impact on other disorders. Mrs McCormick said that she asked the Chief Constable whether the ‘best interests of the children’ had been applied or factored into these decisions and he indicated they had not.

 

[29]      Prior to this, on 12 October 2001, the Committee on the Administration of Justice, a human rights organisation based in Belfast, wrote to the Chief Constable drawing attention to the preamble to the United Nations Convention on the Rights of the Child where it is stated that “the child, by reason of his physical and mental immaturity, needs special safeguards and care including appropriate legal protection”. They referred also to Article 3 which states “[I]n 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 of primary consideration”.

 

[30]      Mrs Anne Tanney, the Principal of Holy Cross Girls’ Primary School throughout the period under consideration, described in her affidavit how children arrived at the school between 3 September and November 2001 very upset. Some were shaking and crying with fright, as a result of their journey to school. She said that staff tried to observe as normal an atmosphere as was possible and to keep the children to a routine. Initially about 30 parents stayed at the school during the school day but this reduced to about 10 by November. Staff met and reviewed each child looking for signs of distress and they identified about 60 in this category. Outward signs were inattention, lack of concentration and constant questioning about their parents, a tendency to cry easily and a general attitude of being very wary. With parental agreement some of the children were referred to the local counselling service. By March 2002 there were 90 children still receiving counselling as a result of the protest. She said that some 22 children left the school because of it.

 

[31]      Dr Michael Tann, a general medical practitioner at a health centre in Ardoyne Avenue, has a number of patients who were pupils at the school at this time. He found some children showed symptoms of sleep disturbance, bed wetting, anxiety, agitation, violent aggressive outbursts and behavioural change. Some became disruptive and could not concentrate and had a fear of being left alone. Others with pre-existing medical conditions such as eczema and asthma suffered flare-ups of their condition. Some of the children were treated with sedatives before they were brought for counselling and he said that the parents also required counselling.

 

The evidence of the respondents’ witnesses

 

[32]      Chief Superintendent Maxwell was the District Commander from 1 April 2001 and the officer with immediate responsibility for policing in Ardoyne. He said that he became aware of a disturbance on Ardoyne Road on 19 June 2001 when it was alleged that ‘Loyalists’ were erecting flags on lamp posts and a car, which had just left the vicinity of Holy Cross School, was driven at them. Following this attacks were made on parents and children leaving by car from the vicinity of the school and this developed into public disorder in which the police were heavily outnumbered. They managed to separate both sides and then escorted the children from the school along the Crumlin Road. The disorder continued with acid bombs, paint bombs and three blast bombs being thrown.

 

[33]      On the following morning parents were confronted by substantial numbers of ‘Loyalists’ on Ardoyne Road as they tried to bring their children to school. The ‘Nationalist’ numbers were estimated at 200 and the ‘Loyalists’ at about 50 and in an effort to keep the two groups apart the police carried out a baton charge against the ‘Loyalist’ crowd. Within minutes there was a report of an armed man being seen in the Glen Bryn Estate and the Chief Superintendent decided that because of the risk to life the parents should not be allowed to take their children to school along Ardoyne Road. He advised them to go along Crumlin Road and then to make their way to Holy Cross School through St Gabriel’s Boys’ School. The Chief Superintendent said that as a result he faced criticism from public representatives on both sides. The ‘Loyalist’ side said that the police stood by when ‘Nationalists’ collecting their children from school attacked their area and ‘Nationalists’ on their part wanted an assurance that the police would guarantee safe access for the children to the school along Ardoyne Road.

 

[34]   On 20 June there was disorder and this increased during the evening. ‘Loyalists’ attacked the police with blast and petrol bombs and both sides used firearms against police officers. He received reports that ‘Loyalists’ had blast bombs in Glen Bryn and intended to attack ‘Nationalists’. On 21 June parents and children again attempted to use the Ardoyne Road but due to the number of ‘Loyalists’ in the area and the intelligence about blast bombs the Chief Superintendent decided he could not permit parents and children to use Ardoyne Road and again advised them to take the Crumlin Road route. This was because of a perceived risk to their lives.

 

[35]      Each day the position was assessed by him and he felt that the threat was too great to risk Ardoyne Road being used to access the school. On 25 June 2001 the Chief Superintendent met with the Chairman of the Board of Governors of the school and the Principals of Holy Cross and St Gabriel’s Schools and they discussed the issues surrounding the protest. His advice to them was to keep Holy Cross School open. He said he explained to them that if it had been a case of adults going to work he would have been disposed to push the protesters back but as he was dealing with young children he had serious concerns that the children could be traumatised or injured.

 

[36]      During the holiday months of July and August disorder continued in North Belfast. At the Ardoyne shop fronts the police were attacked for nine hours on 12 July by a crowd of some 500 opposed to an Orange parade returning to Ligoniel. 119 officers were injured and of these 19 were treated in hospital. The Chief Superintendent said angle grinders were used to cut down lamp posts for use as road blocks and a filling station was looted and set on fire.

 

[37]      In late August meetings were held with senior officers to discuss the strategy for the new term. It was decided to use a series of screens, two metres in height, on Ardoyne Road between the junction with Alliance Avenue and the school gates. Police officers and soldiers were to be positioned on each side and the parents and children would then be able to walk on the footpath. Some of these screens were erected by soldiers on 3 September 2001 but ‘Loyalists’ prevented them from doing so on the last 150 metres. By 9.00 am the ‘Loyalist’ crowd had increased to several hundred and the police pushed them off the road into side streets. A number of parents and children walked to the school but as they did so they were subjected to verbal abuse. On the way home on that day many children left by taxi from the Crumlin Road after walking through St Gabriel’s School. Those who attempted to walk down Ardoyne Road had stones thrown at them and one stone broke the perspex on a screen injuring a police officer. As a result of the incidents on that day 14 officers were injured.

 

[38]      When this operation was reviewed it was decided that the screens had not been as successful as been hoped as they did not provide sufficient protection. Consideration was then given to using hessian screens mounted on army lorries but this idea was rejected because of the risk of petrol bombs setting fire to the hessian. The screens could also encourage protesters to move into gardens where the ground is higher than at road level, making it even more difficult for the police to control them.  It was decided to place police and military vehicles on both sides of the Ardoyne Road leaving an area in the middle for parents and children to pass through. They would be escorted by police officers who would use their shields to provide protection from missiles. It is said that no child received any physical injury on the way to and from school when this system was used. However, the police had some 41 officers injured as a direct result of the dispute.

 

[39]      While the dispute was continuing police resources were required to deal with serious public disorder in other parts of the same police division and there was a high level of serious crime including 22 murders or attempted murders. At its height the operation at Ardoyne Road required each day 400 officers and 100 soldiers with another 200 in reserve. The Chief Superintendent said that there was a determination on the part of the police to prosecute those responsible for criminal activity and the parents were encouraged to make complaints to the police of criminal behaviour.

 

[40]      By October 2001 it was clear to the Chief Superintendent that despite the efforts of churchmen, politicians and community workers an early resolution was unlikely. It was felt by the police that there was a lack of political will and that some momentum was required. A meeting was held with Father Troy and Mrs Tanney, the Principal of the school, and they made the Chief Superintendent aware of a decision on the part of the parents to see a return to normality. On 3 November 2001 residents of Glen Bryn and their representatives met with senior police officers and explained their concern that the police intended to beat protesters off the street. They were told that the plan was to increase the distance between the protesters and those going to the school and a further meeting was arranged for the following day.

 

[41]      At this meeting the residents of Glen Bryn agreed to appoint marshals and to remain silent as the parents and children passed along Ardoyne Road to the school. The police decided that they would wear forage caps in place of riot helmets and that shields would not be carried. The officers escorting the children would wear yellow reflective jackets and an atmosphere closer to normal would thus be achieved. This change of strategy was explained to Father Troy, members of the Board of Governors and representatives of parents on 6 November 2001. The parents felt that this change had been sprung on them and had left them exposed.

 

[42]      On 7 November a further meeting was held with the same group and the members of it again expressed the wish to have a return to normality. For their part the senior police officers said that the safety of the children was paramount and that they would move to normality at a speed that allowed them to be as sure of the safety of the children as practicable.

 

[43]      It was decided to begin on 12 November 2001 with parents walking, unescorted, with their children in a 35 minute time-frame in the morning, at lunch time and in the afternoon. The second stage would be for parents and children, with an increased police presence to prevent confrontation, to use the footpath and following this to introduce school buses. The buses would in time be replaced by taxis and private cars.

 

[44]      On 12 November parents and their children walked without a police escort on Ardoyne Road and on 19 November they used the footpath. The following day school buses were introduced and the protest was suspended on 23 November 2001 and there was then a gradual return to normality.

 

[45]      In response to the complaint about videos the Chief Superintendent said that at the end of June 2001 the police began to video events and from 3 September 2001 they recorded each day on video. A team was then formed to identify and prosecute those involved in criminal offences and this led according to the Chief Inspector to a number of prosecutions.

 

[46]      Mr Alan McQuillan was at the time of the protest the Assistant Chief Constable with responsibility for policing the urban region including Ardoyne Road.

 

[47]      In his evidence he described how late in the year 2000 and early 2001 the Ulster Defence Association carried out a number of attacks on the homes of Roman Catholics living in North Belfast. Part of this plan was to excite community unrest and during June 2001 there was an increase in tension between the two communities in a number of areas including Ardoyne. He was advised that when the protest began on the afternoon of 19 June 2001 senior members of the UDA and the Provisional IRA were spotted in the opposing factions.

 

[48]      Allegations followed that ‘Loyalists’ had been assaulted in the course of this incident and this helped to raise the tension to an even higher level. More police officers and some soldiers were deployed in an effort to maintain peace and indications were found of paint and acid bombs being manufactured within the ‘Loyalist’ area. Overnight police officers and soldiers remained in the area and the following afternoon crowds of 500 formed and began fighting as the children made their way home from school. Police officers had to force their way between the opposing factions to allow the children to pass through.

 

[49]      The serious rioting described by Chief Superintendent Maxwell followed that evening down Ardoyne Road. Mr McQuillan said that from the intelligence he was receiving he considered that there was a serious threat to public order in North Belfast and that much of the violence was being planned and organised by the Ulster Defence Association. He knew that they had access to firearms and pipe bombs and that police officers and Catholics were their targets.

 

[50]      Faced with this he decided, after discussion with Chief Superintendent Maxwell, that there was a serious risk to the lives of children and their parents if they walked along the Ardoyne Road.

 

[51]      On 21 June 2001 there was further rioting and larger crowds became involved. There was gunfire and civilians and police officers were injured. On the days following the situation became more peaceful but still the police could not guarantee the safety of children and parents on the route along Ardoyne Road. Rioting increased over the weekend following the arrest of a leading figure in the Ulster Defence Association.

 

[52]      This situation continued during the summer holidays when efforts were made to encourage a measure of agreement between the two committees that had been formed so that children could reach the school in safety during the new school year.

 

[53]      By late August 2001 it had become apparent to Mr McQuillan that it was unlikely that any agreement would be reached between the committees. The senior police officers considered that with the resources available to them and requirements elsewhere they could not provide protection for children and parents that would be totally effective if they walked along Ardoyne Road. He was aware that there was an alternative route available along the Crumlin Road and, while it had limitations, it was the safer option.

 

[54]      It was Mr McQuillan’s decision that the children and their parents should be able to travel to the school along Ardoyne Road and, so far as possible, that the residents of Glen Bryn should be allowed to go about their daily lives with as little interruption as possible with a lawful and peaceful protest being allowed to take place. To permit the safe passage of the children barriers two metres in height were to be used so that protests could take place on one side and the children and their parents sheltered by the screens could make their way along the road.

 

[55]      As Chief Superintendent Maxwell explained the barriers or screens were not a success. Efforts were made to get the community leaders to persuade the crowds to go to one side and make a peaceful protest when the children appeared on the route to school. This failed and when the police used crowd control tactics they were attacked. When the children began to make their way along the road they were subjected to abuse from the crowd and the police found it impossible to prevent this because of the numbers involved. A series of violent protests followed later on that day and on subsequent days accompanied by extensive rioting. Large numbers of police officers and soldiers were engaged in getting the children and their parents to the school in safety. Soldiers and police officers were subjected to gunfire, blast bombs and petrol bombs and vehicles were hijacked and driven into the police lines. There were many injuries some of them serious. The cost to the public of the policing operation between 3 September 2001 and 19 October is put at £1.8million and the daily cost at £55,000. By December 2001 the cost had risen to an estimated figure of £3million.

 

[56]      While the protests were going on meetings were being held with politicians, church leaders and groups representing the parents of pupils at Holy Cross School. The Assistant Chief Constable stated that the main objective was to protect the rights of the children and their parents to get to and from the school daily by their chosen route.

 

[57]      Chief Inspector Purce was the commander on the ground on 1 October 2001 and he said that the morning and lunch time ‘runs’ passed off without incident and he returned at 2.30pm. The road was blocked by a number of people who were mostly female and he ordered them to disperse in the exercise of his powers under Article 20 of the Public Order (NI) Order 1987 and when he did so they moved. When the road was cleared the movement of children and parents began. Inspector Purce then noticed a number of female protesters with water bombs at the junction of Hesketh Road and he warned them that they would be arrested if any of these were thrown. Despite this some water bombs were thrown over the police lines. As the parents moved along the road towards the school the protesters did so too and they had to be held back by soldiers.

 

[58]      On the return journey on that day the protesters directed abuse and sectarian chants at the parents and children and there was abuse given in return. When they reached Alliance Avenue some parents complained to the Chief Inspector about the water bombs. He explained why he had adopted the course that he had taken by restricting the movement of the protesters and keeping the parents moving. The protesters on seeing this discussion taking place began to move towards the Chief Inspector and fearing confrontation he asked the parents to move on so that the army could seal off the road. The Chief Inspector agreed with Mr McGuinness that the placards displayed on 9 October 2001 by the protesters were clearly offensive and sectarian and he said he gave instructions for them to be removed on 10 October 2001. He believes, contrary to the opinion of Mr McGuinness, that they were not displayed again. Mr McGuinness also refers in his affidavits to a move from soft hats by police officers to full riot gear and the Chief Inspector agrees that on 26 October 2001 the protesters were greater in number and cameras were being used by some parents.  This was regarded by protesters as a breach of an agreement that they would not be used by either side. A female protester attempted to assault a parent and the two later ‘runs’ on that day were thought to have a potential for more serious disorder and he decided to wear a helmet for the rest of the day. Mr McGuinness mentioned in his affidavit face masks being worn with pictures of Johnny Adair, a convicted terrorist, on them. The decision not to remove them was made by the Chief Inspector because there were 12 people wearing these masks and he considered it would be extremely difficult to make arrests as by doing so it could lead to widespread disorder and result in children and parents being injured. Mr McGuinness also mentions how parents wished to return to the school for a 10.00 am Halloween party on 26 October. Chief Inspector Purce said he had no advance warning of this and it was only after the 9.00 am ‘run’ that he was told that the parents intended to return to the school at 10.00 am. The police had by then been stood down and Mr Kelly, an MLA, was informed that there were insufficient officers to cover this journey to the school. As it involved only 10 parents the Chief Inspector offered police transport but he was told that this was unacceptable. After speaking to the Assistant Chief Constable police resources were diverted back and the parents made the journey to the school at 10.00 am.

 

[59]      Mr McGuinness referred to a blast bomb attack on parents on 5 September 2001. Sir Ronnie Flanagan, who was at that time the Chief Constable, has averred that in his opinion this was directed not at parents and children but at police officers who were moving the protesters to make room for the parents and children to pass in safety. One police officer sustained a serious leg injury and others were also injured and had to go to hospital. The Chief Constable strongly refutes the allegation that he said at the meeting in October 2001 that it was a black and white public order issue. He claims that he said that while a number of public representatives and clergy described it as extremely complicated covering a wide range of social issues, he regarded children being able to go to and from school, unmolested, as a straightforward black and white issue. He states that he made it clear at the meeting that it was more than a public order issue requiring personal involvement of everyone with influence to bring about a permanent resolution. Nor does he agree that he said he would walk his child up the road and would expect the police to facilitate him. Rather, he said he would expect the police to make the choice available to him though he would not have walked his child up the road in the circumstances then prevailing.

 

[60]      The Chief Constable also takes exception to an assertion made by Mr McGuinness that police officers stood ‘shoulder to shoulder’ with protesters. When challenged by the Chief Constable about this Mr McGuinness said that he has used the expression “in geographical proximity” and that as seen through the eyes of a child it might appear that the police and the protesters were together.

 

[61]      The Chief Constable refutes the claim by Mr McGuinness that he conceded at a meeting that in organising the police operation they had not taken account of the ‘best interests of the child’ and that the security arrangements had not factored this into the equation. He says that he made it clear on 25 October that everything they were doing operationally was driven by what was in the best interests of the children. This was also emphasised in a letter he sent to Professor Brice Dickson, the Chief Commissioner, on 7 November 2001 in response to a suggestion by him that Commissioners who had been present on the Ardoyne Road felt that on several occasions more might have been done by the security forces to protect the children from breaches of their rights.

 

[62]      The Director of Policing and Security in the Northern Ireland Office at the time was Mr David Watkins. As principal security adviser to the Secretary of State he and other officials held discussions in August 2001 with local political community representatives and mediators together with other interested parties. Following this the Security Minister, Ms Jane Kennedy MP, met with local politicians with the aim of resolving the dispute. The Secretary of State met with the school Principal and the Chairman of the Governors. He met also with leading politicians and with parents of children attending the school and residents of the Glen Bryn Estate.

 

[63]      An inter-departmental group was formed with representatives of the devolved administration and the Northern Ireland Office to address the concerns of the two communities. In addition officials met members of the local population. On 31 October 2001 the Security Minister met with members of the Northern Ireland Human Rights Commission. It is to be recorded that she took exception to the fact that details of this confidential meeting appeared in the affidavit of Mr McGuinness. She stresses that a note of the meeting exhibited to his affidavit is not an agreed version of what took place at the meeting with her.

                         

[64]      As this résumé of the evidence demonstrates there are numerous factual disputes which it was not possible to resolve in judicial review proceedings but it  is clear that the appellants criticism of the policing of the dispute and   the strategic and operational decisions made by senior officers is that these were misconceived. While the protesters had freedom of movement the parents and children could only use Ardoyne Road at pre-arranged times. The journey to and from the school was policed as though it were a contentious parade and the fact that this took place at fixed times facilitated the protesters in the infliction of degrading treatment.  Ms Quinlivan emphasised in the course of her argument the length of the period during which this protest was endured. She questioned whether a protest against children should be allowed. The lack of arrests and the failure of the police to come down hard on the protesters made the protesters feel that they could engage in this behaviour with impunity.

 

 

 

 

 

The proceedings in the Court below

 

[65]     The trial judge summarised the appellants arguments advanced before him in the judicial review proceedings 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.

 

[66]      He summarised the principle arguments advanced on behalf of the respondents as follows:-

 

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 imposed on the first respondent under the Police (Northern Ireland) Act 2000.

 

[67]      In his judgment the trial judge concluded, at paragraph [39,] that to assert a claim that the Convention has been breached the applicant had to establish that she had been a victim of the alleged violation.  He had no difficulty in acknowledging that she felt under threat on many occasions.  He was persuaded that she genuinely believed that her life was threatened but he was unable to accept that it had been proved that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to her life.  He held therefore that no violation of article 2 has been established.

 

[68]      Turning to article 3 he did not accept that it had been established that the measures taken by the police were unreasonable and concluded that no breach of that article of the Convention had been demonstrated.  With regard to article 14 he did not find it necessary to decide if the claim came within the ambit of any other provision of the Convention as he was satisfied that there was no evidence to support the contention that the manner in which the protest was policed discriminated against the applicant.

 

[69]     No breach of article 2 of the first protocol to the Convention was found because the applicant’s daughter had not been denied her education.

 

[70]      The argument that there had been a breach of article 3 of the United Nations Convention on the Rights of the Child was rejected by the judge on the ground that it had not been shown that the ‘ best interests of the child’ were not accorded primary consideration by the respondents.

 

[71]      Section 32 of the Police (Northern Ireland) Act 2000 makes it a general duty of the police:-

 

(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.

 

    By section 33(1) it is provided that the police shall be under the direction and control of the Chief Constable.

 

The trial judge was not persuaded that the policy of containment of the dispute was adopted in dereliction of the police officers’ duty or by reason of a reluctance to fulfil the statutory obligations placed upon them.

 

[72]      The applicant complained that the police took account of the protesters opinions and interests to the detriment of the children and their parents and secondly that they should not have had regard to any ‘rights’ of the protesters to impede the progress of the children to school. Therefore the dispute should not have been policed in a manner akin to a contentious parade where regard is had for the rights of all those involved. The judge took the view that the police could not be faulted for exploring with the representatives of the protesters any means of bringing the matter to an end. He referred to the rights of the protesters under articles 10 and 11 of the Convention as not simply to be ignored. He was not satisfied that the police were wrong either to attempt to mediate with the protesters’ representatives or to keep in mind their right to protest.

 

[73]      As for the allegation that the Chief Constable of the time accepted that the ‘best interests of the children’ had not been considered in arriving at the policing strategy the onus was on the applicant and as the evidence was at best equivocal and in face of the express assertion to the contrary the judge was not prepared to hold that it had been established. As he did not consider that there had been a failure on the part of the Police Service or the Secretary of State to implement the criminal law he held that the policing decisions had withstood the challenge presented and dismissed the application.

 

[74]     At the hearing in the court below the respondents submitted that there was only one applicant in the proceedings, namely ‘E’ and that it was not a representative action. The judge accepted that to maintain a claim that the Convention had been violated the applicant must show that she has been a victim of the alleged infringement of the right invoked. It was stressed than an actio popularis is not permitted.

 

The appeal.

 

‘E’’s daughter as a victim

[75]      Section 7(1) of the Human Rights Act 1998 provides that a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) of the Act is entitled to bring proceedings against the authority provided that he is a victim of the unlawful act.  For the purposes of Section 7, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights for that act (section 7(7). 

[76]      In Ilhan v Turkey (2002) 34 EHRR 36 the ECtHR  held that while the respondent asserted that Abdüllatif İlhan's state of health did not preclude him from conducting his own legal affairs, special considerations may arise where a victim of an alleged violation of Articles 2 and 3 of the Convention at the hands of the security forces is still suffering from serious after-effects.  Having regard to the special circumstances of the case, where İlhan could claim to have been in a particularly vulnerable position,  the Court found that the applicant may be regarded as having validly introduced the application on his brother's behalf.  In a more recent decision of the Court (which was brought to our attention by Mr McCloskey after the hearing of the appeal) in YF v Turkey (2004) 39 EHRR 34 a husband and wife had been taken into police custody. She was forced to undergo a gynaecological examination in breach of Article 8 of the Convention. Her husband brought the complaint on her behalf and the Court reiterated that it was open to the applicant, as a close relative of the victim, to raise a complaint concerning allegations by her of violations of the Convention, in particular having regard to her vulnerable position in the special circumstances of that case.

[77]      We consider that ‘E’’ is entitled to bring proceedings on her own behalf and on behalf of her daughter, who was a young child at the time of the incidents and therefore vulnerable. In Ilhan the ECtHR indicated that it would generally be appropriate for an application to name the injured person as the applicant and for a letter of authority to be provided allowing another member of the family to act on his or her behalf. This would ensure that the application was brought with the consent of the victim of the alleged breach and would avoid actio popularis applications.  Where a claim is made in domestic proceedings on behalf of a person under a disability, such as a minor, the procedure under Order 80(2) of the Rules of the Supreme Court should be followed. We are prepared, for the purpose of this appeal, to treat ‘E’s daughter as a ‘victim’ but this does not extend to other children who were pupils at Holy Cross School at the relevant time.

Was it proved that ‘E’,s life was at risk?

[78]      Ms. Quinlivan submitted that the trial judge erred in reaching the conclusion that it had not 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 life of ‘E’. She relied in particular on the fact that police officers had called with ‘E’ on more than one occasion to tell her of a warning  that she would be killed on sight which was said to have come from the Red Hand Defenders, a terrorist organisation. It was as a result of these warnings that ‘E’ moved from her home to live in hostel accommodation.

[79]      Article 2 (1) of the Convention 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.”

 

 In  Ilhan the ECtHR recalled that the force used against Abdüllatif İlhan was not in the event lethal. However, this did not exclude an examination of the applicant's complaints under Article 2. The Court referred to three previous cases when it had examined complaints under this provision where the alleged victim had not died as a result of the impugned conduct.

In Osman v. the United Kingdom (judgment of 28 October 1998, Reports 1998-VIII, pp. 3159-63, §§ 115-22), the applicant, Ahmet Osman, had been shot and seriously injured when a man fired a shotgun at close range at him and at his father. His father died as a result. The Court concluded on the facts of that case that the United Kingdom authorities had not failed in any positive obligation under Article 2 to provide protection of their right to life within the meaning of the first sentence of Article 2. In Yaşa v. Turkey (judgment of 2 September 1998, Reports 1998-VI, p. 2429, § 64), the applicant was shot in the street by an unknown gunman, receiving eight bullet wounds but survived. The Court, found that the authorities had not failed to protect the applicant's life, but held nonetheless that they had failed to comply with the procedural obligation under Article 2 to conduct an effective investigation into the attack. In L.C.B. v. the United Kingdom (judgment of 9 June 1998, Reports 1998-III, pp. 1403-04, §§ 36-41), the applicant, who suffered from leukaemia, was the daughter of a soldier who had been on Christmas Island during the United Kingdom's nuclear tests. The Court noted that it was not suggested that the State had intentionally sought to deprive her of her life but examined under Article 2 whether the State had done all that could have been required of it to prevent the applicant's life from being avoidably put at risk. It found that the State had not failed in this regard.  In light of these authorities we conclude that although the threats that were issued did not lead to the death of ‘E’ they were sufficiently serious for her to leave her home and for Article 2 to be engaged.

[80]      The issue is whether there was a failure on the part of the respondents to protect ‘E’’s right to life and, in so far as there was any threat against her, that of her daughter.   Ms. Quinlivan submitted that as a fundamental right is involved a more rigorous standard of review is required.   We were referred to  R v Secretary of State for the Home Department ex p Turgut [2001] 1 All ER 719 at 729 where Simon Brown LJ said that the domestic court’s obligation in an irrationality challenge in an Article 3 case was “to subject the Secretary of State’s decision to rigorous examination and this it does by considering the underlying factual material for itself to see whether or not it compels a different conclusion to that arrived at by the Secretary of State.”  The test approved by the Court of Appeal in R v Lord Saville  [2000] 1WLR 1855 and regarded by Sir Thomas Bingham M.R.  in R v Ministry of Defence, Ex parte Smith  [1996] QB 517 at 554  as “an accurate distillation of the principles laid down by the House of Lords…”, is in these terms;-

“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.”

[81]      As Sir Thomas Bingham observed in Smith  at page 556 “The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. Where decisions involving a policy-laden, esoteric or security based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations.”   

[82]      Police officers made ‘E’ aware of the intelligence that they had received of a threat to her life.  When she accompanied her daughter to school they escorted them, together with other parents, along Ardoyne Road.  If, as has been suggested, more robust action had been taken against the protesters it does not follow that this would have resulted in any reduction in risk to the life of ‘E. from the threats that were made against her.  In the circumstances while we are persuaded that article 2 was engaged we do not find that there was any failure on the part of the Police to do all that could reasonably expected of them to avoid such risk. We agree with the trial judge that there was no violation of Article 2.

Article 3

[83]      Article 3 of the Convention provides that:-

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

The category that is relevant to these proceedings is “degrading treatment.”

 

[84]      Article 3 has most commonly been applied where individuals are at risk of being subjected to any of the proscribed forms of treatment as a result of intentionally inflicted acts of agents of the State or public authorities. In Pretty v United Kingdom (1999) 30 EHRR1 the Court referred to the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention. Taken in conjunction with Article 3, the Court said that this requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals (see A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 22).

[85]       As regards the types of “treatment” falling within the scope of Article 3 of the Convention, the Court's case-law refers to “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering (see Ireland v. the United Kingdom, cited above, p. 66, § 167; V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX). Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see amongst recent authorities, Price v. the United Kingdom, no. 33394/96, §§ 24-30, ECHR 2001-VII, and Valašinas v. Lithuania, no. 44558/98, § 117, ECHR 2001-VIII), Jalloh v Germany (App. No. 54810/00, Judgment of Grand Chamber, 11 July 2006).

[86]      Whether conduct has reached this minimum standard depends on the particular circumstances of the case. The duration of the treatment, its effects both physical and mental and the gender, age and physical and mental health of the victim may be relevant factors, see R (Limbuela) v Secretary of State for the Home Department [2005] 3 WLR 1014 at para [8] per Lord Bingham.

[87]      In Limbuela the House of Lords considered whether a statutory prohibition on the Secretary of State providing asylum seekers with the barest necessities of life breached article 3 and held that such treatment could be inhuman or degrading. At para [9] Lord Bingham said:-

“It is not in my opinion possible to formulate any simple test applicable in all cases. But if there were persuasive evidence that a late applicant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene, the threshold would, in the ordinary way, be crossed.”

[88]  As Ms. Quinlivan acknowledged, some of the behaviour of the protesters taken in isolation may not have been degrading but taken as a whole their behaviour towards ‘E’ and her young daughter showed a lack of respect for their human dignity and in the case of the child aroused feelings of fear capable of breaking a child’s resistance. ‘E’ chose to take her daughter to school by this route no doubt because she wished to assert her right to do so. Ms Quinlivan submitted that although the police said in June 2001 that the safety of ‘E’ and her daughter could not be guaranteed if they went to the school by Ardoyne Road from September onwards the police indicated that they could protect them and they were responsible for their safety. The parents were not told that they could not use that route and as the State was facilitating them to use it they could not be faulted for doing so.  The evidence suggests that the longer and more inconvenient route by the Crumlin Road would not have presented her with the same level of abuse. The fact that she persisted in bringing her daughter to school by Ardoyne Road, in the face of the behaviour towards her of the protesters suggests that so far as she was concerned personally it may not have reached the threshold. In the case of her daughter the minimum level was more easily attained.

[89]      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. 

Article 14 in relation Articles 2 and 3

[90]      The appellant submits that the trial judge failed to address her claim of a breach of Article 14 in conjunction with Articles 2 and 3 of the Convention in deciding that there was no evidence to support the contention that the manner in which the protest was policed discriminated against the applicant. 

[91]      Article 14 provides that “The enjoyment of 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.”  Subject to two qualifications it is dependent on other Convention rights.  One of these is that there may be a breach of Article 14 in conjunction with another article where there would be no breach of that other article taken alone. An illustration of this is found in Abdulaziz, Cabales and Balkandali  (1985) 7 EHRR 471 where the applicants who were settled in the United Kingdom complained that their husbands were refused permission to join them. It was held that although this was not a breach of Article 8, it was not legitimate to distinguish between the non- national spouses of males who were permitted entry and the non-national spouses of females who were not.

[92]      The appellant’s case is that the protest was targeted at the children because they were Catholics and they were subjected to degrading treatment because of their religion.  She says that the protest was policed less vigorously than ‘Nationalist’ protests against Orange marches or industrial disputes.  She points, for example, to evidence that in other situations police have not permitted abuse or harassment of children by protesters. The proximity of the protesters to the children and the nature of the abuse were, according to one experienced observer, contrary to any exercise of public order that she had ever seen.  Father Donegan referred, in particular, to the tactics used by the police in connection with an Orange march on 12 July 2001 when water cannon were used against a ‘Nationalist’ protest.  The facts fall within the ambit of two rights, those of the children and their parents under Articles 2 and 3 and those of the protesters under Articles 10 and 11. The problem so far as the comparison with the Orange march is concerned is that it is difficult to be satisfied that one is comparing a like situation with another. The aim of the police was to get children to school unharmed and this is very different to a situation where the passage of adults taking part in a march has to be protected from other adults.   Another aspect is the way in which the protesters on Ardoyne Road were treated as compared with the parents and their children. Father Troy said that it appeared to him “that the reason the protest was being policed in the manner that it was, was because equal weight, if not preferential treatment, was being given to the right to protest and that the rights of ‘loyalist’ protesters were in reality place above the children’s rights.” In the Belgian Linguistic Case (No2) (1968)  1 EHRR 252 at 284  the ECtHR put the question in this way;-

“has there been a difference of treatment that has no objective and reasonable justification, that is, it does not pursue a legitimate aim or there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”

[93]      To the appellant and to others taking their children to school it may have appeared that they were being treated less favourably than the protesters.  The police had to have regard to the wider picture if they were to achieve their aim and get them to and from the school in safety. We consider that there was a reasonable relationship of proportionality in a difficult situation and that a ‘fair balance was struck between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention’- see Belgian Linguistic Case at para 9.

Article 2 of Protocol 1

[94]      Article 2 of Protocol 1 of the Convention 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.”

 

The trial judge found that there was no violation of this provision because the appellant’s daughter was not in fact been denied her right to education.  He said that due to “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.”

 

[95]      This appeal is concerned with the daughter of ‘E’, not with other children who attended the school, and it is significant that she did go to school and that every effort was made to provide her with a safe atmosphere when at school to pursue her education.  Lord Hoffman said in A v Head Teacher and Governors of Lord Grey School [2006] 2 WLR 690 at para 57:-

 

“…article 2 of the First Protocol is concerned only with results: was the applicant denied the basic minimum of education available under the domestic system? For this purpose it is necessary to look at the domestic system as a whole.”

 

We agree with the trial judge there has been no violation of this Convention right.

 

The Police (Northern Ireland) Act 2000

 

[96]      Sections 32 and 33 of the Police (Northern Ireland) Act 2000 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.”

 

As the trial judge observed these provisions cannot be absolute in that police officers are not required to prevent the commission of every offence. The argument presented by Ms. Quinlivan was that these sections must be read in a way that is compatible with section 3 of the Human Rights Act 1998 and with rights of children.

 

[97]       The trial judge accepted that it is the general duty of the Chief Constable to fulfil his statutory obligations.   Where 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. 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.  He was not 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.

 

[98]      Ms Quinlivan submitted that the judge had failed to address the substance of the Appellant’s argument on this issue.  It was that the Police Act imposes a general duty on police officers to: protect life; preserve order; prevent the commission of offences; and where offences are committed to take measures to bring offenders to justice.  In fulfilling their duties the police operate under the direction and control of the Chief Constable. So far as  possible the legislation is to be read and given effect in a way which is compatible with Convention rights as required by section 3 of the Human Rights Act 1998. In the circumstances where offences were committed against children and their parents: threatened life; caused public disorder; breached the criminal law and did so in a manner which threatened the Article 2 and 3 rights of the children and their parents a heavy onus lay upon police to carry out their duties in accordance with section 32. 

 

[99]      She argued that the area of discretion given to the Police is highly qualified when the terms of the Police (NI) Act 2000 are read and given effect in a manner compatible with the Article 2 and 3 Convention rights of children and their parents, because the police are obliged to protect these rights which are unqualified by the Convention. She did not suggest that this was a free standing ground of complaint but went to the issues in respect of articles 2 and 3.  In his response Mr McCloskey submitted that Section 32 of the Police Act is to be interpreted in accordance with Osman principles and that it does not add to or take anything away from rights under articles 2 and 3 of the Convention.

 

 [100]   We accept Ms Quinlivan's submission that the Police (NI) Act 2000 should be read and given effect in a manner compatible with Sections 2 and 3 of the Human Rights Act 1998.  Lord Nicholls of Birkenhead said of Section 3 in Ghaidan v Godin Mendoza (2004) UKHL 30:

 

"Section 3 is a key section in the Human Rights Act 1998.  It is one of the primary means by which Convention rights are brought into law of this country.  Parliament has decreed that all legislation, existing and future, shall be interpreted in a particular way.  All legislation must be read and given effect to in a way which is compatible with the Convention rights "so far as it is possible to do so".  This is the intention of Parliament, expressed in Section 3, and the courts must give effect to this intention."

 

            Lord Rodger of Earlsferry at para 106 observed that the section:

 

"requires public authorities of all kinds to read their statutory powers and duties in the light of Convention rights and, so far as possible, to give effect to them in a way which is compatible with the Convention rights of the people concerned.  In practice, even before the 1998 Act came into force, many public authorities had reviewed the legislation affecting them so as to be in a position to comply with this obligation from the date of commencement".

 

[101]    We agree, as Mr McCloskey submitted, that Section 32 of the Police Act is to interpreted accordance with Osman principles.  This reflects the approach adopted by the ECtHR in Kilic v Turkey (2001) 36 EHRR 357 para. 62 and Mahmut Kaya v Turkey (App. No.22535/93, 28 March 2000) at para 85 et seq.  where it said;

 

"The court recalls 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 …. This involves a primary duty on the State 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 punishment of breaches of such provisions.  It also extends in appropriate circumstances to a positive obligation on the authorities to take preventative operational measures to protect an individual or individuals whose life is at risk from the criminal acts of another individual (see the Osman judgment ….)

 

86.       Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the positive 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.  For a positive obligation to arise, it must be established 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. ….."

 

[102]    Thus, while the Police Act imposes these general duties on police officers which must be interpreted consistently with Article 2 and 3 Convention rights, we share the view of the learned trial judge that a large measure of discretion must be vested in the police officers on the ground as to what operational choices are reasonable and appropriate in any given circumstances in order to fulfil those duties.  Such choices in the present case must be looked at in light of the possible risk to the child, the appellant and to others which might be created by any particular operational measure however inviting such steps might appear to have been whether at the time or with the benefit of hindsight.   We consider that the trial judge summarised the position correctly when he said at paragraph 56 of his judgment:

 

"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 will 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 reluctance to fulfil the statutory obligations under Section 32 and 33 of this Act.  I do not accept, therefore, that any breach of these provisions has been made out."

 

For the same reason we have concluded that there was no failure on the part of the respondents to carry out their statutory functions in a way that was compatible with the Convention rights of the appellant and her daughter.

 

 

 The United Nations Convention on the Rights of the Child 1989.

 

[103]    In December 1991 the United Kingdom ratified the United Nations Convention on the Rights of the Child 1989. A fundamental principle of the Convention is contained in Article 3 (1) which states:-

 

“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.”

 

The Parliamentary Joint Committee on Human Rights in the 10^th Report of Session 2002-2003 described the role of the Convention in these terms:-

 

“The Convention on the Rights of the Child binds the UK in international law, but has not been incorporated directly into UK law. It is capable of having effect on judicial and governmental decision-making, whether in respect of the progressive realisation of economic, social and cultural rights or in relation to guarantees of civil and political rights.

 

Unless and until any of its provisions are incorporated, however, the role of the Convention within the UK will be principally as the source of a set of child-centred considerations to be used when evaluating legislation, policy-making and administrative action.”

 

[104]    In A v United Kingdom (1999) 27 EHRR 611 (a case involving State responsibility for the beating of a child by a stepfather) the Commission accepted that the obligation on the State under Article 1 of the Convention cannot be interpreted as requiring the State to guarantee through its legal system that inhuman or degrading treatment is never inflicted by one individual on another or that, if it is, the perpetrator will be subjected to criminal sanctions. In order that a State may be held responsible it must in the view of the Commission be shown that the domestic legal system, and in particular the criminal law applicable in the circumstances of the case, fails to provide practical and effective protection of the rights guaranteed by Article 3. The Commission went on to say (at para [49]) that:-

 

“In determining whether such protection is provided, the Commission attaches importance to the international recognition of the need for the protection against all forms of physical ill-treatment of children, who by reason of their age and vulnerability are not capable of protecting themselves. The Commission has had particular regard to the UN Convention on the Rights of the Child, setting out as it does general standards as to the protection of children and children's rights. The Commission notes that by Article 19 of the UN Convention, States are enjoined to take all appropriate measures "to protect the child from all forms of physical or mental violence, injury or abuse".

 

[105]    The appellant’s case is that in balancing the conflicting rights the police attached insufficient weight to the rights of the children and gave undue weight to those of the protesters. Ms. Quinlivan suggested that there should have been more consultation with the parents and the school about what action that should be taken to protect the children.

 

[106]    The trial judge referred to the difference between the evidence of members of the Human Rights Commission and the then Chief Constable as to what was said at a meeting that they held as to whether he did or did not say that the ‘best interests of the children’ had been to the forefront of the considerations of the police. He decided that the evidence on this issue was equivocal and with the onus of establishing the accuracy of the accusation that the police failed to have regard to the ‘best interests of the child’ principle resting with the appellant he was not prepared to hold that it had been established.

 

[107]    Proceedings for judicial review do not lend themselves to the resolution of a difference of recollection as to what passed between such responsible people. Therefore we do not intend to attempt to do so.  If the principle of the ‘best interest of the child’ in the UN Charter on the Rights of the Child was not specifically considered by the police until the letter of 12 October 2001 was received from the Committee for the Administration of Justice the question remains did they in fact have regard to the best interests of the children attending the school in deciding upon the strategy to be used?

 

[108]    Judicial review is concerned with substance more than form. In Fordham: Judicial Review Handbook 4^th Ed. it is put in this way, ”The question is whether a given flaw in the decision-maker’s approach was a “material” one: one which stood to make a difference. In other words would the decision inevitably have been the same if approached on a correct legal basis? Is, the Court is entitled to say that there was no vitiating flaw, or (putting it another way) that it would be inappropriate to give a remedy as a matter of discretion.”

 

[109]    The object in policing the protest was to allow the children to get to school in safety and to pursue their education. The appellant and others wished to see the police confront the protesters and presumably use force to drive them back from Ardoyne Road. As already noted Chief Superintendent Maxwell told a meeting with the Principal and the Chairman of the Governors at the school on 25 June 2001 that if the children had been adults going to work he might have been disposed to push the protesters back but in dealing with young children he had serious concerns that they could be traumatised or injured. He has said that the safety of the affected school has been of paramount concern throughout and we understand this to include the children attending it.   Even if article 3(1) of the United Nations Convention on the Rights of the Child was not to the forefront of police strategy it is obvious that the ‘best interests of the children’ were in fact a primary consideration (and article 3(1) does not suggest that they have to be the only consideration). We conclude therefore that if the evidence of the appellant’s witnesses as to what transpired at the meeting with the Chief Constable had been preferred it would not have altered the result.

Conclusion

[110]    Although we have differed from the trial judge on some aspects of issues raised in the appeal we are satisfied that he was correct to refuse the application for judicial review and the appeal is therefore dismissed.