EHRM, 23-11-2010, nr. 28326/09

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

On 23 November 2003 the loyalist ‘protest’ was suspended.

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.

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.

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.

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:

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.

The application for judicial review was therefore dismissed.

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.

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.

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.

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.

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 1998-VIII 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.

In particular, Lord Carswell stated that:

Baroness Hale of Richmond further noted that:

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.

The Police (Northern Ireland) Act 2000 provides as follows:

The applicants complained that although the police had knowledge that they were suffering Article 3 ill-treatment at the hands of private individuals, they failed in their positive obligation to take all reasonably available measures to end it. In particular, they complained that the police were not entitled to balance an unknown and unspecified risk of potential disturbances elsewhere against the benefits of bringing the ill-treatment that they were suffering to an immediate end. Rather, as soon as the police had knowledge that the applicants were suffering ill-treatment, they came under a positive obligation to take all reasonably available measures to end that treatment.

Article 3 of the Convention provides as follows:

The Court recalls that Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken 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 (see A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 22). These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see, mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, pp. 3159-60, § 116, Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V and Opuz v. Turkey, no. 33401/02, § 159, ECHR 2009-…).

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. Likewise, where the alleged violation concerns Article 3 of the Convention the Court has held that the State is under an obligation to take ‘reasonable steps’ to prevent ill-treatment of which the authorities had or ought to have had knowledge (Z and Others v. the United Kingdom, cited above, § 73).

In the present case, the Court notes that in the proceedings before the House of Lords the Secretary of State for Northern Ireland and the Chief Constable conceded that some of the more extreme behaviour of the loyalist protesters constituted inhuman and degrading treatment within the meaning of Article 3. It recalls that treatment has been held to be inhuman because, inter alia, it was premeditated, it was applied for hours at a stretch and caused either bodily injury or intense physical and mental suffering, and also ‘degrading’ because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (T. v. the United Kingdom [GC], no. 24724/94, § 71, 16 December 1999). Moreover, the assessment of ill-treatment is relative and depends on all of the circumstances of the case, including the duration of the treatment, its physical and mental effects, and, in some cases, the age, sex and state of health of the victim (Moldovan v. Romania (no. 2), nos. 41138/98 and 64320/01, § 100, ECHR 2005-VII (extracts)). In the present case, the Court observes that the behaviour of the loyalist protesters was premeditated, it continued for two months, it was designed to cause fear and distress to young children and their parents making their way to school, and it clearly resulted in considerable mental suffering. The Court would therefore agree that the actions of the loyalist protesters reached the minimum level of severity required to fall within the scope of Article 3.

It is also clear that in a case such as the present the police possessed more than sufficient fore-knowledge of that treatment to trigger their obligation to take preventive action. The primary question for the Court to address is therefore whether the police could be said to have taken all reasonable steps to prevent ill-treatment.

In answering this question, the Court must bear 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, and the obligation to take ‘all reasonable steps’ must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk of ill-treatment can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising (see Rantsev v. Cyprus and Russia, no. 25965/04, § 219, ECHR 2010-… (extracts), Osman v. United Kingdom, cited above, § 116, and Kontrová v. Slovakia, no. 7510/04, § 50, ECHR 2007-VI (extracts)).

Thus, it follows that the police must be afforded a degree of discretion in taking operational decisions. Such decisions are almost always complicated and the police, who have access to information and intelligence not available to the general public, will usually be in the best position to make them.

This is especially the case in a situation as volatile and unpredictable as the one pertaining in north Belfast during the summer and early autumn of 2001. Riots, sectarian murders and violent disorder had erupted throughout the province and the situation was described as being ‘uniquely fraught’. The police had considerable experience of policing such situations, they were aware of the difficulties of arresting malefactors in their own ‘communities’, and they had access to sources of information about what was happening in the community and what was likely to happen if they took certain courses of action. In September 2001 it was their opinion that taking a more forceful approach with the protesters would not only result in a risk of violence to the general public but might also put the pupils at the Holy Cross school at greater risk. Consequently, they took the view that only a negotiated community settlement could end the protest.

In view of the volatile situation in which they were operating, the Court accepts that the police took all reasonable steps to protect the applicants. First, the Court accepts that the police followed a course of action which they reasonably believed would end the protest with minimal risk to the children, their parents and the community at large. The risks which concerned the police were not, in fact, purely speculative. Violence had been erupting throughout the city over the summer, often at great speed and with little prior warning. Moreover, the police had intelligence which suggested that a more direct approach could increase the risk to the parents and children walking to the Holy Cross School, lead to further attacks on Catholic schools and also result in increased violence in north Belfast. It could not, therefore, be said that the police either disregarded the risk to the applicants in reaching a decision on how best to police the situation, or gave greater priority to the ‘unspecified risk of disturbances elsewhere’.

Secondly, the Court would add that this is not a case in which the police stood by and did nothing: rather, they placed themselves as a shield between the protesters and the parents and children. They did so at considerable cost to themselves, not only in terms of police resources but also in human terms, as forty-one officers were injured during the operation. By contrast, no child sustained any physical injury during the whole period.

Thirdly, the Court finds that to require the police in Northern Ireland to forcibly end every violent protest would likely place a disproportionate burden on them, especially where such an approach could result in the escalation of violence across the province. In a highly charged community dispute, most courses of action will have inherent dangers and difficulties and it must be permissible for the police to take all of those dangers and difficulties into consideration before choosing the most appropriate response.

Consequently, the Court finds that the applicants have not demonstrated that the authorities failed do all that could be reasonably expected of them to protect them from ill-treatment.

Accordingly, the Court finds the complaint under Article 3 of the Convention to be manifestly ill-founded. It should therefore be rejected under Article 35 §§ 3 and 4 of the Convention.

The applicants also complained that the authorities' failure to end the protest violated their rights under Article 8 of the Convention, insofar as it encompassed the right both to identity and personal development, and to physical and psychological integrity.

Article 8 of the Convention provides as follows:

The Court recalls that while the essential object of Article 8 of the Convention is to protect the individual against arbitrary action by public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for private and family life and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves. Children and other vulnerable individuals, in particular, are entitled to effective protection (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, pp. 11–13, §§ 23–24 and 27, and August v. the United Kingdom (dec.), no. 36505/02, 21 January 2003).

As regards respect for private life, the Court has previously held, in various contexts, that the concept of private life includes a person's physical and psychological integrity. Under Article 8 the States have a duty to protect the physical and moral integrity of an individual from other persons (see X and Y v. the Netherlands, 26 March 1985, §§ 22 and 23, Series A no. 91; Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247-C; D.P. and J.C. v. the United Kingdom, no. 38719/97, § 118, 10 October 2002 and M.C. v. Bulgaria, no. 39272/98, §§ 150 and 152, ECHR 2003-XII).

Although the Court accepts that the applicants may have suffered adverse physical and psychological effects as a consequence of the long-running loyalist protest, it rejects the complaints under Article 8 for the same reasons as it rejected the complaints under Article 3, namely that the operational decisions complained of fell within the ambit of legitimate police discretion and fully complied with the State's positive obligations. The complaint is therefore manifestly ill-founded and inadmissible pursuant to Rule 35 §§ 3 and 4 of the Rules of Court.

The applicants complained that the authorities failed in their positive duty under Article 14 of the Convention to secure their rights under Articles 3 and 8 without discrimination. In particular, they submitted that the authorities were under a positive duty to take particular measures to combat racism and racial violence and, when investigating violent incidents, to take all reasonable steps to unmask any racial motive and establish whether or not ethnic hatred may have played a role in events. In the present case, however, the violence had been motivated by sectarian hatred and the police failed to approach it with the ‘special vigour’ required by Article 14. Alternatively, the applicants complained that they were treated less favourably than the protesters or that the protesters were treated more favourably than the demonstrators at loyalist parades.

Article 14 of the Convention provides as follows:

In the present case, the Court has already found that the facts complained of engaged both Article 3 and Article 8 of the Convention. It therefore considers that it must examine separately the complaints under Article 14.

The Court has held that when investigating violent incidents and, in particular, deaths at the hands of State agents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. For the Court, since these considerations must also apply to religious hatred and prejudice, failing to do so and treating racially or ethnically or sectarian-induced violence and brutality on an equal footing with cases that have no such overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see, mutatis mutandis, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005-VII).

However, unlike the situation obtaining in Nachova and Others v. Bulgaria, in the present case it was clear from the outset that the protesters' motives were sectarian and it cannot be said that the authorities failed to have due regard to this fact. As indicated above, the situation in north Belfast in the summer and autumn of 2001 was uniquely fraught and sectarian violence was commonplace. It was precisely because of the sectarian motive that the police, who had considerable experience of the security situation in north Belfast, decided not to take a more forceful approach with the protesters, as they were concerned about the risk of triggering further sectarian violence either in the area or elsewhere in north Belfast.

Moreover, the Court observes that there is no evidence of any sectarian bias on the part of the police. The police took all reasonable steps to protect the applicants, at considerable financial and personal cost, and there is absolutely no evidence to suggest that they would have behaved any differently had the applicants been loyalists and the protesters nationalists.

Consequently, the Court finds the complaint under Article 14 of the Convention read together with either Article 3 or Article 8 to be manifestly ill-founded. It should therefore be rejected under Article 35 §§ 3 and 4 of the Convention.

Finally, the applicants complained under Article 13 of the Convention that the only effective mechanism available to them for holding the authorities accountable would have been a civil negligence action against the police but, following the case of Hill v Chief Constable of West Yorkshire [1989] A.C. 53 the police had immunity in such cases and any application would have been futile.

Article 13 of the Convention provides as follows:

The Court recalls that Article 13 guarantees the availability of a remedy at national level to enforce — and hence to allege non-compliance with — the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order (see the Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). However, Article 13 cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention (see Boyle and Rice v. the United Kingdom, cited above, § 52).

In view of its above conclusions the Court finds that in the present case the individual complaints made by the applicants did not give rise to any arguable claim of a breach of a Convention right.

In any case, the Court observes that the applicants have not explained to its satisfaction either why the judicial review proceedings did not amount to an effective remedy or why they did not attempt to bring a claim for damages under the Human Rights Act 1998.

Consequently, the Court finds the complaint under Article 13 of the Convention read together with Articles 3, 8 and 14 to be manifestly ill-founded. It should therefore be rejected under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early

Registrar

Lech Garlicki

President