LXD & Ors, R (On the Application Of) v Chief Constable of Merseyside Police

Interim relief in judicial review is discretionary. The court must consider whether there is a serious issue to be tried and where the balance of convenience lies, while recognising the public interest in allowing a public authority’s decision to continue. In an Article 2 claim, the relevant risk must be real and immediate, assessed objectively. Article 8 requires proper regard to children’s best interests, but that consideration does not require accommodation to be ordered where objective evidence shows that the claimants are safe and an expedited trial can address the dispute. Subjective fears, difficult living conditions and housing priorities cannot replace evidence of a real and immediate risk to life.

The claimants, a mother and her three young children, sought interim relief requiring Merseyside Police to provide temporary accommodation pending determination of a claim under Articles 2, 3 and 8 of the European Convention on Human Rights. They alleged that the police had failed adequately to protect them from threats to their lives and to investigate those threats.

The family had been staying with relatives after threats connected with the first claimant’s former partner. The police had assessed that the family could return home with protective measures, and the former partner’s safe-house accommodation was due to end. The court considered whether there was a real issue to be tried, the balance of convenience, and whether the substantive claim should be expedited.

1. Interim relief refused. The court was satisfied that there was a real issue to be tried. The initial classification of the threat as standard was not clearly explained, given the threats to kill, the vulnerability of the claimants and the seriousness with which the police had treated the risk to the former partner. There were also questions about whether the first claimant’s difficult accommodation circumstances had influenced later police assessments.
2. The applicable Article 2 test required an objectively verified, real and immediate risk to life. The risk had to be present and continuing. The positive obligation was subject to proportionality and reasonableness, having regard to the circumstances, the practicality of precautions and available resources.
3. The decisive balance-of-convenience consideration was whether the claimants were currently safe. The police assessment that they could return home was material, and the claimants had in fact remained safe at the relatives’ address since January. The court had to proceed on an objective assessment of risk rather than subjective fears. The impending withdrawal of safe accommodation for the primary target also weighed against ordering accommodation for the claimants.
4. The cramped and difficult family accommodation was accepted. However, the court could not conclude that moving the children to unknown budget hostel accommodation would serve their best interests, particularly before an expedited trial and without evidence about the accommodation available. Housing-association priorities could not replace objective evidence of a real and immediate risk.
5. The claim was expedited and a rolled-up hearing was ordered. The court accepted that the claimants’ case could proceed without witness evidence, while preserving the possibility of revisiting that position if later developments made it necessary. Costs were ordered to be costs in the case.

Not stated in the judgment. This was a first-instance application for interim relief in the Administrative Court.