|Judgments - In Re E (a child) (Ap) (Appellant) (Northern Ireland)
HOUSE OF LORDS
 UKHL 66
on appeal from:  NICA 37
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re E (a child) (AP) (Appellant) (Northern Ireland)
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
(Instructed by Madden & Finucane)
First Interveners (Northern Ireland Human Rights Commission)
Barry MacDonald QC
(Instructed by Northern Ireland Human Rights Commission)
Bernard McCloskey QC
Paul Maguire QC
(Instructed by Crown Solicitor)
Second Interveners (Children's Law Centre and Northern Ireland Commissioner for Children and Young People (Written submissions only))
(Instructed by Children's Law Centre)
17, 18 and 19 JUNE 2008
WEDNESDAY 12 NOVEMBER 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re E (a child) (AP) (Appellant) (Northern Ireland)
 UKHL 66
LORD SCOTT OF FOSCOTE
BARONESS HALE OF RICHMOND
"The atmosphere of violence and the tension tend to affect children deeply . . . Younger human beings have less ability to see the context and understand why people behave as they do and, certainly, their time perspective is different. All this makes them so much more vulnerable."
"The test under article 3 however does not require it to be shown that 'but for' the failing or omission of the public authority ill-treatment would not have happened. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the state."
"In order to fall within the scope of article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim."
Detaining a Congolese child of five, who had been separated from her family, for two months in an immigration detention facility designed for adults met that high threshold even though the staff had done their best to be kind to her.
". . . 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 in conjunction 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 Steps should be taken to enable effective protection to be provided, particularly to children and other vulnerable members of society, and should include reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge." (emphasis supplied)
Despite the fact that the state had detained the little girl, the Court treated the case, not as a breach of its negative obligation, but as a breach of its positive obligation to look after her properly. She "indisputably came within the class of highly vulnerable members of society to whom the Belgian State owed a duty to take adequate measures to provide care and protection as part of its positive obligations under article 3 of the Convention" (para 55). This they had failed to do (para 58). The Court also found a breach of the state's obligations towards the child's mother, because of the distress she must have suffered at her daughter's treatment, even though it could be said that she had to some extent brought it on herself by arranging for the child to travel through Belgium without a visa (para 62).
". . . it seems to me generally unhelpful to attempt to analyse obligations arising under article 3 as negative or positive, and the state's conduct as active or passive. Time and again these are shown to be false dichotomies. The real issue in all these cases is whether the state is properly to be regarded as responsible for the harm inflicted (or threatened) upon the victim."
Nevertheless, there must be some distinction between the scope of the state's duty not to take life or ill-treat people in a way which falls foul of article 3 and its duty to protect people from the harm which others may do to them. In the one case, there is an absolute duty not to do it. In the other, there is a duty to do what is reasonable in all the circumstances to protect people from a real and immediate risk of harm. Both duties may be described as absolute but their content is different. So once again it may be a false dichotomy between the absolute negative duty and a qualified positive one. In another recent case about children, Kontrova v Slovakia, App no 7510/04, Judgment of 24 September 2007 BAILII:  ECHR 419 , the Court, at para 50, reiterated the well-known passage from Osman, para 116:
"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 scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities."
In Kontrova, the state admitted violating the positive obligation to protect life in article 2. Despite having received allegations of repeated and serious violence against by children's father, and that he had a shotgun and threatened to use it to kill himself and the children, they had failed to act upon these allegations, with the direct result that he carried out his threats and the children were killed.
"With the police and army resources available to me and the general situation in Urban Region and the rest of Northern Ireland at that time, I was concerned that I simply did not have sufficient resources available to secure the safe passage of the children and parents. Furthermore, I was concerned that, to try to force them through Ardoyne Road at that time, also ran a real risk that serious violence would break out in Loyalist Communities across other parts of the Region and that this would include the risks of attacks on other Roman Catholic schools. Some of these attacks would be organised by the [Ulster Defence Association] and I considered that they would represent a real risk to life."
He therefore decided, in consultation with Chief Superintendent Maxwell, the District Commander, that it was not possible to mount an operation that would guarantee the safety of the children and parents if they travelled along the road. This situation continued until the end of the school term.
"(i) the throwing of an explosive device on Ardoyne Road on the 5th September 2001 as children were being taken to the school.
(ii) The throwing of other missiles at those making the journey to and from the school. These included bricks, rubbish, balloons filled with urine, dog excrement and in particular in the pre-Halloween period firecrackers and bangers.
(iii) Some parents when travelling to or from the school were the object of death threats shouted at them by 'protesters'.
(iv) A commonplace was the shouting by 'protesters' of verbal abuse of a vile sectarian nature.
(v) Male 'protesters' shouted obscenities of a sexual nature at women and children as they sought to make their way to or from school.
(vi) There were occasions where racist abuse was directed at persons connected to the school.
(vii) On occasions explicit pornographic material was displayed by the 'protesters' as pupils travelled to school.
(viii) Two priests connected to the local parish and who were on the Board of Governors of the school were subjected to verbal abuse which suggested that they engaged in improper sexual activity with the pupils of the school.
(ix) Placards were on occasions displayed which described the same priests as paedophiles and stated that they had joined the priesthood to abuse small children.
(x) Some 'protesters' from time to time wore 'Johnny Adair' facemasks. Johnny Adair was a notorious loyalist paramilitary who for long had been associated with sectarian attacks on Catholics in the North Belfast area.
(xi) On occasions children, their parents and the priests already referred to were spat at by 'protesters'.
(xii) A frightening and intimidating atmosphere was created by the 'protesters' by the use of piercing whistles, sirens, horns and other instruments which could generate loud noises.
(xiii) Apart from the Johnny Adair masks, already referred to, 'protesters' also wore other masks from time to time."
The DVD which formed part of the material before the House provides vivid visual confirmation of the violent and intimidating nature of the protesters' behaviour. Notwithstanding all this the parents continued to take their children to school on foot every day along Ardoyne Road. Most of them declined to use the alternative route travelled by the appellant and her daughter in June, which was somewhat longer and was more difficult for some to traverse. The police offered to transport the parents and children to the school in an armoured bus, but this offer was also declined. So for over two months the group of parents and children ran the gauntlet twice a day along Ardoyne Road.
"would provide some greater protection for the parents and children and at the same time minimal interference with the rights of the Loyalist residents to lawfully protest and make use of the public highway."
As against that the Chief Constable is recorded as having stated in a meeting with representatives of NIHRC on 25 October 2001 that "his paramount consideration is the welfare of the children" and that "the rights of the children far outweighed any rights to freedom of assembly or expression claimed by the protesters." In a letter of 7 November 2001 to the Chief Commissioner he assured him that "the rights of the children are to the forefront of our thinking in all we do and in all we are seeking to achieve." An echo of this approach appears in para 27 of Chief Superintendent Maxwell's affidavit sworn on 14 January 2002, where he refers to his view that the safety of the children had to be paramount.
"Huge numbers of police and soldiers were deployed into the area each day to achieve the safe travel of the parents and children to school and each evening to prevent sectarian rioting along interfaces in the area. During the course of these operations Police and Army came under attack with gunfire, blast bombs, petrol bombs, acid bombs and missiles. Vehicles were hijacked, set on fire and rolled into police lines. Large numbers of soldiers and police officers were injured, some very seriously."
Mr Maxwell stated that a total of 41 police officers received injuries directly attributable to the Holy Cross dispute. The cost of policing it between June and December 2001 has been estimated at over £3 million. The deployment of such numbers of police officers in Ardoyne meant the diversion of resources from other areas, with a significant impact on the quality of policing in the Belfast Region.
(a) whether the appellant is entitled to seek relief on behalf of her child, who is not formally a party to the proceedings;
(b) whether the appellant and her daughter suffered inhuman or degrading treatment;
(c) whether article 3 was engaged so as to give rise to the positive obligation under that article;
(d) if so, whether the police took sufficient steps to discharge that obligation.
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
It is not suggested that the state through the police itself subjected the appellant or her daughter to any such treatment. The appellant's case is rather founded upon a claim that it was in breach of the positive obligation imposed upon it by article 3. The negative obligation, not to inflict inhuman or degrading treatment, is unqualified. But the Strasbourg jurisprudence has laid down in decisions under article 2 that a positive obligation is also imposed upon contracting states, to take certain steps towards the prevention of loss of life at the hands of others than the state. It was accepted by all parties to the present appeal that a similar positive obligation is imposed under article 3 in the prevention of the infliction by third parties of inhuman or degrading treatment. That was the major premise of the arguments addressed to the House and it appears to be correctly founded in principle and supported by recent decisions of the European Court of Human Rights ("ECtHR").
"115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.
116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.
In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government's view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case."
"55. Likewise, the concept of balance is not in play in that the needs of the community cannot be weighed against the right of an individual not to be subjected to torture or other ill-treatment reaching the threshold. To express the standard of the state's responsibility in terms of 'reasonableness' therefore fails to reflect the categorical imperative created by Article 3. Considerations of reasonableness may operate in deciding whether a proposed measure is available or likely to be effective to stop the ill-treatment in question but not otherwise. In circumstances where the state has it within its power to prevent or stop inhuman or degrading treatment, it must take the measures necessary to do so. The only room for discretion is in determining the most effective means of achieving the object of preventing the ill-treatment. There is no room for opting not to prevent it."
" Secondly, there is a reflection of the principle of proportionality, striking a fair balance between the general rights of the community and the personal rights of the individual, to be found in the degree of stringency imposed upon the state authorities in the level of precautions which they have to take to avoid being in breach of article 2. As the European Court of Human Rights stated in Osman v United Kingdom (1998) 29 EHRR 245, para 116, the applicant has to show that the authorities failed to do all that was reasonably to be expected of them to avoid the risk to life. The standard accordingly is based on reasonableness, which brings in consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available. In this way the state is not expected to undertake an unduly burdensome obligation: it is not obliged to satisfy an absolute standard requiring the risk to be averted, regardless of all other considerations: cf McBride, 'Protecting Life: A Positive Obligation to Help' (1999) 24 EL Rev: Human Rights Survey HR/43, HR/52."
"[46l Sadly, policing options and decisions do not readily permit such uncomplicated solutions, particularly in such a uniquely fraught situation. Those who had to decide how to deal with this protest were obliged to have regard to the effect that their decisions might have in the wider community. It is not difficult to understand that an aggressive, uncompromising approach to the protest might have been the catalyst for widespread unrest elsewhere. It is precisely because the Police Service is better equipped to appreciate and evaluate the dangers of such secondary protests and disturbances that an area of discretionary judgment must be allowed them, particularly in the realm of operational decisions. While the sense of grievance of the parents is perfectly reasonable and the perplexity of those who could not understand why the police did not adopt more forceful tactics is unsurprising, I cannot accept that it has been established that the measures taken by the police were unreasonable. I have concluded that no breach of article 3 has been demonstrated therefore."
" There was a positive obligation on the State to take reasonable measures to protect the child of 'E' from degrading treatment. On behalf of 'E' it is submitted that more positive steps or measures to protect the Convention rights of her daughter ought to have been taken by the police. Those best equipped to make an assessment as to the course to be adopted considered that there was a significant risk of violence erupting on a wider scale if more robust action was taken against the protesters. Not only could this have put at risk the lives of police officers but also the lives of members of the public living in North Belfast. Applying the Smith test we consider that taking account of the nature and size of the operation that was mounted over a considerable period of time and the perceived risk if other measures were adopted the police did all that was reasonably open to them to protect the rights of the child."
The Smith test referred to in this passage and in an earlier part of the judgment of the Court of Appeal is that set out by Sir Thomas Bingham MR in R v Ministry of Defence, Ex p Smith  QB 517, 554:
"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."
The decisions of the High Court and the Court of Appeal were criticised by counsel for the appellant and NIHRC on two grounds, first, that the Court of Appeal had applied the wrong test in adopting that laid down in Smith, and, secondly, that it was wrong to defer to the judgment of the police.
"In the course of his justly-celebrated and much-quoted opinion in R (Daly) v Secretary of State for the Home Department  2 AC 532, paras 26-28, Lord Steyn pointed out that neither the traditional approach to judicial review formulated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223 nor the heightened scrutiny approach adopted in R v Ministry of Defence, Ex p Smith  QB 517 had provided adequate protection of Convention rights, as held by the Strasbourg court in Smith and Grady v United Kingdom (1999) 29 EHRR 493."
" it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department  2 AC 532, paras 25-28 in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith  QB 517 at 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time Proportionality must be judged objectively, by the court "
He further observed at para 31 that what matters "is the practical outcome, not the quality of the decision-making process that led to it."
"The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith  QB 517, 554 is not necessarily appropriate to the protection of human rights [T]he intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued."
"performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice."
The police had such responsibility and were uniquely placed through their experience and intelligence to make a judgment on the wisest course to take in all the circumstances. They had long and hard experience of the problems encountered in dealing with riotous situations in urban areas in Northern Ireland. The difficulty of catching and arresting malefactors who had means of retreat available through paths and gardens are self-evident. The police had available to them sources of information about what was happening in the community and what was likely to happen if they took certain courses of action, which they were experienced in assessing.
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
It is axiomatic that the discrimination prohibited is that which affects the freedom of enjoyment of the Convention rights, which is a limiting factor in the search in which the court is required to engage. Accepting that the case comes within the ambit of article 3, the question to be answered in the present case is whether the police in the way that they handled the protest and protected the appellant and her daughter from inhuman and degrading treatment treated them differently on the ground of their religion from the way in which they did treat or would have treated other people. This accords with such statements of the ECtHR as that in Marckz v Belgium (1979) 2 EHRR 330, where the Court said in para 32:
"Article 14 safeguards individuals, placed in similar situations, from any discrimination in the enjoyment of the rights and freedoms set forth in those other provisions "
As Lord Hoffmann said in R (Carson) v Secretary of State for Work and Pensions  UKHL 37,  AC 173, para 14, "Discrimination means a failure to treat like cases alike." I do not understand Lord Nicholls of Birkenhead to have intended any different approach in Shamoon v Chief Constable of the Royal Ulster Constabulary  UKHL 11,  NI 174, when he stated at para 11 that arid and sometimes confusing disputes about comparators may be avoided by asking whether the claimant was treated as he was on the proscribed ground which is the foundation of the application or for some other reason.
LORD BROWN OF EATON-UNDER-HEYWOOD