West Law Report

State’s positive obligation to prevent inhuman treatment is not absolute

Posted in House of Lords (case), Times Law Report by mrkooenglish on November 21, 2008

From The Times
November 19, 2008
State’s positive obligation to prevent inhuman treatment is not absolute

House of Lords

Published November 19, 2008

E v Chief Constable of the Royal Ulster Constabulary and Another

Before Lord Hoffmann, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood

Speeches November 12, 2008

The positive obligation imposed on the state by article 3 of the European Convention on Human Rights to prevent the infliction by third parties of inhuman or degrading treatment was not unqualified and absolute. It was an obligation to do all that was reasonably to be expected to avoid a real or immediate risk to an individual once the existence of that risk was known or ought to have been known.

The House of Lords so held, dismissing the appeal of the mother, E, from the dismissal by the Court of Appeal of Northern Ireland (Lord Justice Campbell, Lord Justice Sheil and Mr Justice Gillen) ([2006] NI CA 37) of her appeal from the refusal by Mr Justice Kerr ([2004] NI QB 35) of her application for judicial review by way of declarations that the Chief Constable of the Royal Ulster Constabulary and the Secretary of State for Northern Ireland had acted unlawfully in, inter alia, failing to secure the effective implementation of the criminal law and to secure the prevention, suppression and punishment of breaches of the criminal law, in failing to secure the safety of E and her child’s safe access to school and in failing to protect them from inhuman and degrading treatment.

Miss Karen Quinlivan and Miss Jessica Simor for E; Mr Bernard McCloskey, QC and Mr Paul Maguire, QC, for the chief constable and the secretary of state; Mr Barry Macdonald, QC and Miss Fiona Doherty for the Northern Ireland Human Rights Commission, intervening.

LORD CARSWELL said that Holy Cross Girls Primary School had 230 pupils aged between three and 11 years from the Catholic community in north Belfast. It was situated on Ardoyne Road, along which it was the custom of some parents to walk their daughters to and from school.

The district was largely Catholic, but the Glen Bryn estate formed an enclave bordering part of Ardoyne Road on both sides. It was inhabited by loyalist Protestant families.

In the afternoon of June 19, 2001, there was an outbreak of disorder on Ardoyne Road which had been in a state of increasing tension. Loyalist residents were intent on preventing Catholic parents and children from walking to school on Ardoyne Road through the Glen Bryn estate. Until the end of the school term at the end of June the situation was such that the police decided not to permit the use of Ardoyne Road for the children’s passage to school and provided an alternative longer route.

When the new term commenced in September, the police had been able to consider what strategy to follow. The expedient adopted was to station police and military vehicles along both sides of Ardoyne Road, creating a corridor through which the group of children and parents could walk. Police officers and soldiers were deployed on the protesters’ side and escorting police officers carrying long shields accompanied the group to protect them from missiles.

No injuries were sustained by any children, but the police and Army came under attack with gunfire, blast bombs, petrol bombs, acid bombs and missiles. Vehicles were hijacked, set on fire and rolled into police lines. Several soldiers and police officers were injured, some very seriously.

Critics complained that the police should have taken more robust action in forcing protesters off the street and making more widespread arrests, with the object of terminating the protest at an early stage.

The major issue was whether the state, through its emanation the police, was in breach of its positive obligation under article 3 of the Convention to take the steps required of it to prevent the infliction of inhuman and degrading treatment upon E and her daughter.

It was accepted that some of the more extreme forms of conduct in which the loyalist protesters indulged constituted such treatment.

The negative obligation not to inflict inhuman or degrading treatment was unqualified. But the state also had a positive obligation to prevent the infliction of such treatment by third parties. The extent of the positive obligation could not be regarded as absolute as the negative obligation.

It was submitted for E that since the police had available to them the means of stopping the protest and preventing the infliction of inhuman or degrading treatment, their obligation to use the measures at their disposal was absolute, unless they could conclusively demonstrate that if they adopted those measures, worse consequences of risk to life or the infliction of inhuman or degrading treatment would ensue to the children concerned or other persons.

It was argued that no element of proportionality, reasonableness or the needs of the community entered into consideration of the positive obligation to ensure that an individual was not subjected to torture or ill-treatment.

His Lordship could not accept those submissions. It was quite clear from Osman v United Kingdom (Application No 23452/94) (The Times November 5, 1998; (1998) 29 EHRR 245) that the obligation placed upon the authorities in an article 2 case, protecting the right to life, was to do all that could reasonably be expected of them to avoid a real and immediate risk to life, once they had or ought to have had knowledge of the existence of the risk. The obligation under article 3 was no different in kind, and the Strasbourg jurisprudence confirmed that.

To hold otherwise would be to place an intolerable burden upon the state. In the present case it would have required the police to drive back the protesters by main force and make numerous arrests, irrespective of the consequences which would have ensued and which would have given rise to widespread disorder, loss of life and destruction of property.

The police were uniquely placed through their experience and intelligence to make a judgment on the wisest course to take in all the circumstances, and the evidence supported the overall wisdom of the course which they adopted. The assertions that they might have adopted more robust action were quite insufficient to establish that the course adopted was misguided, let alone unreasonable.

LORD HOFFMANN, agreeing, added that in recent years in the House of Lords leave had frequently been given to statutory bodies and nongovernmental institutions to intervene and make submissions, usually in writing but sometimes orally from the Bar, on questions of general public importance, in the expectation that their fund of knowledge or particular point of view would provide a more rounded picture than their Lordships would otherwise obtain.

An intervention was, however, of no assistance if it merely repeated points which the parties had already made. An intervener would have had sight of their printed cases and, if it had nothing to add, should not add anything.

It was not the role of the intervener to be an additional counsel for one of the parties. That was particularly important in the case of an oral intervention.

In the present case, the oral submissions on behalf of the intervener only repeated in rather more emphatic terms the points which had already been quite adequately argued by E’s counsel. In future interveners should avoid unnecessarily taking up their Lordships’ time.

Lady Hale delivered a speech concurring with Lord Carswell; Lord Scott agreed with Lord Carswell and Lord Brown agreed with Lord Carswell and Lady Hale.

Solicitors: Madden & Finucane, Belfast; Crown Solicitors, Belfast; Ms Angela Stevens, Belfast.

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