In re E (a child) (AP) (Appellant) (Northern Ireland)

The positive obligation under article 3 of the Convention requires public authorities to take reasonable and effective measures to protect individuals from a real and immediate risk of inhuman or degrading treatment by third parties. The obligation is not an absolute guarantee that the harm will be prevented.

The court must assess compliance for itself by applying proportionality to all the circumstances. It may give appropriate weight to the operational judgment of an expert public authority, including risks to other people, practical constraints, priorities and resources. Children’s vulnerability and best interests require particular consideration. Discrimination under article 14 requires proof that the claimant was treated differently on a prohibited ground from a person in a materially similar situation.

A mother sought judicial review of the policing of violent loyalist opposition to Catholic children and their parents walking along Ardoyne Road to Holy Cross Girls’ Primary School in Belfast. The children suffered sustained intimidation, abuse and attacks between September and November 2001. The police maintained an escorted route but did not clear the crowds or make arrests on the scale sought by the appellant.

Kerr J dismissed the application. The Court of Appeal dismissed the appeal in [2006] NICA 37, holding that the police had taken all measures reasonably open to them. The mother appealed to the House of Lords. The principal issues were whether the police had fulfilled the state’s positive obligation under article 3 of the Convention and whether their conduct involved religious discrimination contrary to article 14.

1. Appeal dismissed unanimously. Lord Carswell delivered the leading opinion. Lord Hoffmann and Lord Scott agreed with it, Lord Brown agreed with Lord Carswell and Baroness Hale, and Baroness Hale gave additional reasons.

2. Per Lord Carswell, the positive obligation under article 3 to protect people from inhuman or degrading treatment inflicted by third parties is not absolute. Once the authorities know or ought to know of a real and immediate risk, they must do all that can reasonably be expected of them to avoid it. Reasonableness accommodates the circumstances, the practicability of precautions, operational priorities, available resources and the danger that intervention may cause greater harm. This approach followed the principles in Osman v United Kingdom and the later Strasbourg authorities.

3. Per Lord Carswell, the heightened rationality standard in R v Ministry of Defence, Ex p Smith was insufficient for deciding compatibility with Convention rights. The Court of Appeal had therefore applied the wrong standard. The court itself had to evaluate proportionality objectively. It could nevertheless give appropriate weight to the judgment of police officers who possessed operational responsibility, relevant experience and access to security intelligence.

4. Applying that standard, the police fulfilled their positive obligation. They committed substantial personnel and resources, preserved the children’s chosen route, shielded them from physical injury and pursued a negotiated solution. More forceful crowd clearance and widespread arrests carried a genuine risk of escalating violence against the children and others. The appellant had not shown that the chosen course was misguided or unreasonable.

5. Per Lord Carswell, article 3(1) of the United Nations Convention on the Rights of the Child 1989, although unincorporated, made the children’s best interests a relevant consideration when assessing compliance with article 3. The police had regard to those interests, particularly physical safety, and acted consistently with them. Baroness Hale additionally emphasised that children’s vulnerability affects both the article 3 severity threshold and the protective measures reasonably required.

6. The article 14 claim also failed. Per Lord Carswell, the relevant question was whether the police treated, or would have treated, similarly situated Protestant families differently because of religion. There was no evidence of such treatment or of sectarian motivation by the police. Orange parades and the treatment of the hostile crowds were not valid comparators.

1. House of Lords: Dismissed the appeal in [2008] UKHL 66 and upheld the rejection of the judicial review application.
2. Court of Appeal in Northern Ireland: Dismissed the appellant’s appeal on 19 October 2006 in [2006] NICA 37 .
3. High Court of Justice in Northern Ireland: Kerr J dismissed the application for judicial review on 16 June 2004.