P.F. AND E.F. v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
1. The first applicant, P.F., is an Irish national who was born in 1970 and currently lives in Belfast. The second applicant, E.F., is the first applicant’s daughter. She was born in 1994 and she currently resides with the first applicant. 2. The applicants were represented before the Court by Mr F. Shiels of Madden & Finucane, a lawyer practising in Belfast. 3. In 2001 the applicants lived in Ardoyne, a predominantly Catholic area of north Belfast. The second applicant was a pupil at the Holy Cross Girls’ Primary School (“the school”), which was a Catholic girls’ school situated on the Ardoyne Road. In 2001 it had approximately 230 pupils aged between 3 and 11 years of age. 4. Ardoyne was a predominantly Catholic district and the residents were mostly nationalist. However, the Ardoyne Road was bordered on both sides by the Glen Bryn estate, where the residents were predominantly Protestant and loyalist. 5. At the end of 2000 and beginning of 2001 tensions were high in north Belfast. There had been attacks on Catholic homes and a series of sectarian murders. Police intelligence suggested that factions of the Ulster Defence Association (“UDA”), a loyalist paramilitary group, were unhappy with the political situation in Northern Ireland and were attempting to re-ignite community violence. 6. The summer of 2001 was a particularly difficult period. Elections were held on 7 June 2001 and both before and after the elections there was an increase in tensions along sectarian interfaces in Belfast. Moreover, June and July represented “the marching season” in Northern Ireland, during which time a number of contentious parades were scheduled to take place. The majority of these parades were by loyalist organisations and many were due to pass through or near to nationalist areas, prompting nationalist protests, and many resulted in violent disorder. 7. On 19 June 2001 disorder broke out along the Ardoyne Road. Loyalists erecting flags on a lamppost claimed that a vehicle which had just left the vicinity of the school was driven at them. Later that same day parents collecting their children from the school were attacked. When the police arrived at the scene they were attacked by large crowds of loyalists, some of whom were carrying iron bars. Nationalist residents had come out onto the Ardoyne Road and members of both the UDA and the Provisional Irish Republican Army (“PIRA”), a republican paramilitary group, were seen among the crowd. 8. The following morning parents bringing their children to school were confronted by substantial numbers of loyalists. In an effort to keep the two groups apart police carried out a baton charge against the loyalist crowd. Shortly afterwards, there were reports of an armed man in the Glen Bryn estate and the Chief Superintendant of the police force decided that on account of the risk to life parents should not be allowed to take their children to school along the Ardoyne Road. Instead, they were advised to take an alternative route along the Crumlin Road and through a local boys’ school. The Chief Superintendant subsequently faced criticism from public representatives of both sides: the loyalists complained that police stood by as parents taking children to the school attacked their area while the parents demanded an assurance that the police would guarantee safe access for the children to the school along the Ardoyne Road. 9. Disorder continued late into the evening with both sides using firearms against the police. The Chief Superintendant received reports that loyalists had blast bombs which they intended to use. Consequently, on 21 June 2001 he again decided that it was too dangerous to permit parents and children to walk to the school along the Ardoyne Road. Although the situation was quieter on 22 June 2001, the Assistant Chief Constable, following consultation with the Chief Superintendant, decided that it was not possible at this time to mount an operation that would guarantee the safety of the children and their parents if they were to walk to the school along the Ardoyne Road. This situation continued until the school term finished at the end of June. 10. During July and August disorder continued in north Belfast. On 12 July 2001 police in Ardoyne were attacked by a crowd of five hundred nationalists opposing a loyalist parade in the area. 119 police officers were injured during the attack, which lasted for nine hours. 11. Notwithstanding efforts by the parents of children attending the school to negotiate with the residents of the Glen Bryn estate, it became apparent that when term began in September 2001 a loyalist mob would try to prevent them from walking along the Ardoyne Road. The police resolved to mount an operation to ensure that parents could take their children to the school by the route of their choice. 12. In late August senior police officers met to discuss the strategy for the new term. It was decided to use a series of perspex screens, two metres in height, on the Ardoyne Road with police officers and soldiers positioned on each side so that parents and children would be able to walk on the footpath. 13. On 3 September 2001, the first day of the new term, a large crowd of loyalists gathered and attacked the police and soldiers erecting barriers. The police attempted to clear the crowd but their hostility was such that they were unable to do so. When parents and children attempted to walk to the school they were subjected to verbal abuse. As they headed home in the afternoon loyalists threw stones at them. One stone broke a perspex screen injuring a police officer. Later that day, and on subsequent days, serious rioting occurred in the area. 14. Following the events of 3 September 2001 the police concluded that the perspex screens did not provide sufficient protection. It was therefore decided to place police and military vehicles on both sides of the Ardoyne Road leaving an area in the middle for children and their parents to pass through. They would be escorted by police officers who would use their shields to provide protection from missiles. 15. Despite the change in tactics, loyalists continued in their efforts to block the parents and children as they attempted to walk along the Ardoyne Road to the school. Their behaviour became increasingly violent and abusive. Although the type of incident which occurred and the intensity of the abuse varied from day to day, examples of their behaviour included the following: throwing bricks, rubbish, balloons filled with urine and dog excrement, firecrackers and, on one occasion, an explosive device at those making the journey to and from the school; shouting death threats, sectarian abuse and obscenities of a sexual nature; displaying explicit pornographic material; accusing priests on the school’s Board of Governors of being paedophiles; spitting at the children and their parents; wearing masks; and using whistles, sirens, horns and other instruments to create an intimidating atmosphere. 16. Notwithstanding the loyalists’ behaviour, the majority of parents continued to take their children to school by foot along the Ardoyne Road. They declined to use the alternative route and they also refused the police’s offer to transport them to the school in an armoured bus. 17. Following a number of meetings with community groups towards the end of October, in early November the police decided to reduce the level and intensity of the policing. 18. On 23 November 2003 the loyalist “protest” was suspended. 19. At its height, the police operation on the Ardoyne Road had required four hundred police officers and one hundred soldiers every day, with another two hundred soldiers in reserve. During the operation forty-one police officers were injured. None of the children sustained any physical injuries. 20. The first applicant brought judicial review proceedings on behalf of herself and her daughter, seeking a declaration that the Chief Constable of the police and the Secretary of State for Northern Ireland failed to secure the effective implementation of the criminal law and to ensure safe passage for her, her daughter and the other pupils to the school along the Ardoyne Road. She claimed that the policing operation failed to protect the rights of the children and parents under Articles 2, 3 and 14 of the Convention and Article 2 of Protocol No. 1, that the police approach was not informed by the United Nations Convention on the Rights of the Child, and that the police were in default of their general duty under the Police (Northern Ireland) Act 2000 to read their statutory obligation to protect life and preserve order compatibly with the European Convention on Human Rights. In particular, she claimed that they failed to act in the best interests of the child and instead took into consideration the loyalists’ right to protest. In their defence, the police submitted that while the safety of the children and their parents was their overriding concern, they had to consider that if they adopted a more forceful approach to the loyalist protest, there was a real risk of serious violence erupting elsewhere. There was also a risk of retaliatory attacks on Catholic schools. 21. The High Court found that Article 2 of the Convention had not been engaged as it had not been proved that the authorities knew or ought to have known of the existence of a real or immediate risk to the first applicant’s life. 22. With regard to the Article 3 complaint, the High Court judge did not consider it necessary to decide whether the treatment that the first applicant was subjected to amounted to inhuman or degrading treatment or punishment because he did not accept that the actions taken by the police were unreasonable. He stated that: “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 a 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.” 23. The High Court further considered that there was no evidence that the protest had been policed in a manner which discriminated against the first applicant. Moreover, due to the efforts of the school, there had been no interference with the second applicant’s education. Finally, with regard to the complaint under the Police (Northern Ireland) Act 2000, the High Court did not accept that the police had failed to have regard to the best interests of the child or that they were wrong to consider the loyalists’ right to protest. 24. The application for judicial review was therefore dismissed. 25. The first applicant appealed to the Court of Appeal, which dismissed the appeal. Contrary to the findings of the High Court, it accepted that Article 2 was engaged but held that there had been no failure on the part of the police to do all that was reasonably expected of them. With regard to the Article 3 complaint, the Court of Appeal was not convinced that the necessary threshold was reached in respect of the first applicant, as she persisted in walking to the school along the Ardoyne Road even though an alternative route was available to her. However, the court accepted that in relation to the second applicant the Article 3 threshold was more easily attained. Although the Court of Appeal accepted that the State was under a positive obligation to take reasonable measures to protect the second applicant from degrading treatment, it concluded that the police were best equipped to assess the course to be adopted considering the significant risk of violence erupting on a wider scale, which could have put at risk not only the lives of police officers but also the lives of the general public. Taking account of the nature and size of the operation and the perceived risks involved the court held that the police had done all that was reasonably open to them to protect the rights of the child. 26. The Court of Appeal also considered that while it might have appeared to the first applicant that she was being treated less favourably, in reality the police had to have regard to the wider picture if they were to ensure that the children were able to walk to school safely. Consequently, a fair balance had been struck between the protection of the interests of the community and respect for the rights and freedoms guarded by the Convention. 27. The Court of Appeal agreed with the High Court that there had been no interference with the second applicant’s right to education. Finally, the court found that there had been no failure by the police to carry out their statutory duties in a manner compatible with the Convention or without due regard to the best interests of the child. 28. The first applicant was granted leave to appeal to the House of Lords. In doing so, she did not pursue her complaints under Article 2 of the Convention. 29. Before the House of Lords the respondents conceded that some of the more extreme behaviour of the loyalist protesters potentially constituted inhuman and degrading treatment within the meaning of Article 3. It was also not in dispute that the police possessed more than sufficient fore-knowledge of that treatment to trigger their obligation to take preventative action. However, the House of Lords considered that it was quite clear from Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998VIII that the obligation placed on the authorities in Article 2 cases was to do all that could reasonably be expected of them to avoid a real and immediate risk to life. The obligation under Article 3 could not be different in kind, as to hold otherwise would place an intolerable burden on the State. The correct test was therefore one of reasonableness, and the House of Lords found that the first applicant’s assertions were insufficient to establish that the police’s actions were unreasonable. 30. In particular, Lord Carswell stated that: “Between the beginning of September and late November 2001 the police devoted substantial effort and resources to keeping open this short stretch of road for the group of parents and children to traverse. They placed themselves as a shield between a hostile and dangerous crowd and a small group of vulnerable people, incurring a considerable number of injuries to their officers. They achieved a significant measure of success in their efforts, in that no child sustained any injury during the whole period. They did not take what might have been a tempting course, to close the road on the ground that to keep it open was too dangerous. It was important that they should uphold the freedom of members of the public to walk at will along a public road, the abandonment of which would have been an inroad into the rule of law and a success for mob rule. It was not achieved easily or without cost, in terms of injuries and expense. But it was achieved, and the complaint in these proceedings is not that the police or the state failed to make sufficient endeavours to uphold the appellant’s civic rights. The complaint is rather that the passive protection which the police afforded was insufficient. It is claimed that they should have done more, that they should have taken more robust active steps to quell the protest and protect the children from the frightening experience which they endured when they walked along Ardoyne Road. That comes down to two specific assertions, first, that they should have forced the protesters back and away from their positions bordering Ardoyne Road and, secondly, that they should have made more numerous arrests, which would have served as a deterrent and brought about a speedier end to the protest. As the trial judge said in the passage in his judgment which I quoted above, policing options and decisions do not readily permit of such uncomplicated solutions. One can readily envisage many practical difficulties in the way of forcing protesters back and making arrests, which is notoriously difficult in situations of riot or near-riot. More fundamental, the core of the respondents’ case is that a robust response on the part of the police contained a serious danger that violence could spread and escalate. That could have given rise to potentially dangerous consequences both for the parents and children as they walked along Ardoyne Road and, more widely, for public order in the area and the lives and safety of its residents. It was suggested on behalf of NIHRC that the risk of provoking collateral disorder was ‘essentially speculative and unquantified’ and that reliance should not be placed on the ipse dixit of the police. There is, however, clear evidence of the volatile nature of the security situation in north Belfast at the time. The potential for the sudden development of violent disorder is shown by the speed with which it broke out when an incident occurred on 19 June 2001 and the length of time which it took to subside. When the police cleared the road on 3 September, using, as Mr McQuillan states, conventional crowd tactics, very violent protests ensued and serious rioting took place in the Upper Ardoyne area. The police view was that only a negotiated community solution would end the protest, a view shared by Government ministers. The efforts made to achieve this eventually bore fruit and the protest was ended and not recommenced. Acceptance of the validity of proceeding in this manner is not merely deferring to the police view, although it would be quite proper to accord a measure of discretion to them as a body with expertise in handling matters of public security, as both Kerr LCJ and the Court of Appeal recognised. Independently of according such latitude of judgment to the police, acceptance of the validity of the course which they adopted is a matter of what Lord Bingham of Cornhill described in Huang v Secretary of State for the Home Department [2007] 2 AC 167, 185, para 16 as performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice.” The police had such responsibility and were uniquely placed through their experience and intelligence to make a judgment on the wisest course to take in all the circumstances. They had long and hard experience of the problems encountered in dealing with riotous situations in urban areas in Northern Ireland. The difficulty of catching and arresting malefactors who had means of retreat available through paths and gardens are self-evident. The police had available to them sources of information about what was happening in the community and what was likely to happen if they took certain courses of action, which they were experienced in assessing. In my judgment the evidence supports the overall wisdom of the course which they adopted. The assertions made by the appellant and NIHRC that they might possibly have adopted more robust action are in my view quite insufficient to establish that the course adopted was misguided, let alone unreasonable.” 31. Baroness Hale of Richmond further noted that: “This case has several features which distinguish it from the general run of cases, such as Osman and the recent decision of this House in Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50; [2008] 3 WLR 593, in which victims have complained that the state has failed adequately to protect them from the actions of private individuals. First, it concerns children. Second, there is no issue about whether the police should have appreciated the real and immediate risk of ill treatment. They knew all about it. It was going on under their noses. The fact that it may not have occurred to them that it fell within article 3 makes no difference. Third, while they were undoubtedly doing their very best to ensure that the children could get to school by their usual route without suffering physical harm, the steps they took made the experience even more frightening for the children: closing the road, making the parents and children walk together under escort at defined times in the morning and afternoon, rather than letting them go in dribs and drabs in the way that children normally make their way to and from school. Fourth, they let this situation continue throughout half a school term. The evidence suggests that this was because they saw it as part of a complex community dispute, in which a loyalist enclave on this area of north Belfast saw itself as under threat from the encroaching nationalists, and was exercising a right to ‘protest’ about this. The police now accept that this was not a legitimate exercise of the right to protest. But they also believed that more sinister forces on the loyalist side might exploit the dispute to foment much more serious violence elsewhere in Belfast if the matter was not carefully handled and ultimately a political solution found. Hence the essential dispute before us is whether the police were entitled to take into account the risk of serious harm and even death to unspecified people elsewhere in Belfast when deciding how to protect the Holy Cross school children. Had they not done so, it is argued, they could and should have taken a more robust attitude to the aggressors from the outset, arresting the ring-leaders and driving the others off the street. This, it is said, is what they finally decided to do after the aggression had been going on for half a term, and shortly after they signalled their intentions, the so-called ‘protest’ was abandoned. ... ... ... As a general principle, a police officer is not entitled to stand by and let one person kill or seriously ill-treat another, when he has the means of preventing it, just because he fears the wider consequences of doing so. He has to step in, come what may. But this situation was not as straightforward as that. In Z v United Kingdom and Kontrova v Slovakia it was quite obvious what could have been done to protect the children from harm: the Z children could have been taken into care and the Kontrova children’s father could have been arrested when he first threatened to kill them. It was rather less obvious what the authorities should have done to protect the children in E v United Kingdom and I have been troubled by the rejection of the “but for” test in the passage quoted in para 7 above. In the end, however, I do not think that it has been demonstrated that, had the police behaved at the outset in the way in which it is now said that they should have behaved, the children’s experience would have been any better. Indeed, it could have been a great deal worse. They were in very real physical danger at the beginning. On 5 September an explosive device was thrown into the road where they were walking but thankfully injured no-one. The difficulties and dangers to them in doing what it is now suggested should have been done cannot be ignored. Hindsight is a wonderful thing and no doubt the police have learned lessons from this whole experience. But in a highly charged community dispute such as this, it is all too easy to find fault with what the authorities have done, when the real responsibility lies elsewhere. For that reason, therefore, despite all the features which distinguish this case from those where no breach of duty has been found, and in agreement with Lord Carswell, I too would dismiss this appeal.” 32. With regard to the Article 14 complaint, the House of Lords found that there was no evidence the situation would have been policed any differently had the protesters been nationalist: any comparison between the policing of this protest and the policing of loyalist parades was not valid as the two were not comparable, and the same could be said about any comparison between the treatment of the parents and children and the treatment of the protesters. The police took all reasonable steps to protect the children and their parents and there was no evidence to substantiate any suggestion of sectarian bias in their handling of the situation. 33. The Police (Northern Ireland) Act 2000 provides as follows: “32. General functions of the police. (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. General functions of the Chief Constable (1) The police shall be under the direction and control of the Chief Constable.”