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.

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