Local Government - February 2009
Human rights – Article 3 positive obligations
In Re E (a child) House of Lords -12 November 2008
Background
The claimant and her daughter were catholics living in
Belfast. In 2001, as reported widely at the time, they were
subjected to violent and unlawful protestant protest on their daily
walk to and from school. The decisions of the police as to the
levels of protection required and the approach to the conduct of
the mass demonstrations were attacked in these proceedings. Despite
the events in question having long since passed before the
proceedings were commenced, the courts permitted the issues raised
to be argued because of their wider public importance. The
claimant’s challenge to the police actions was on the basis that
they had failed to take sufficient steps to discharge the positive
obligation arising under the article 3 right not to be subject to
inhuman or degrading treatment. The application for judicial review
failed before Kerr J in the High Court, and the appeal failed
before the Court of Appeal. The matter then came before the House
of Lords.
House of Lords
Lord
Carswell delivered the leading Judgment with which the remaining
Law Lords agreed, Baroness Hale of Richmond adding some comments of
her own. The appeal was dismissed. The court rejected the
contention that the positive obligation arising under article 3
could be as absolute as the negative obligation – “to hold
otherwise would be to place an intolerable burden on the state”
quoting from his earlier observations in Re Officer
L [2007] House of Lords. It was confirmed that “the
applicant has to show that the authorities failed to do all that
was reasonably to be expected of them to avoid [article 3 being
infringed]. The standard accordingly is based on reasonableness,
which brings in consideration of the circumstances of the case, the
ease or difficulty of taking precautions and the resources
available”. Whilst noting that a Human Rights Act compliant
judicial review demanded “somewhat greater intensity” under
the proportionality approach than before, that did not avoid
“according appropriate weight to the judgment of a person with
responsibility for a given subject matter and access to special
sources of knowledge and advice” – see Lord Bingham in
Huang v. Home Department (2007) House of
Lords. As Lord Carswell put it – “the police… were uniquely
placed through their experience and intelligence to make a judgment
on the wisest course to take in all the circumstances. They had
long and hard experience of the problems encountered in dealing
with riotous situations in urban areas in Northern Ireland. The
difficulty of catching and arresting malefactors who had means of
retreat available through paths and gardens are self evident.
The police had available to them sources of information about what
was happening in the community and what was likely to happen if
they took certain courses of action, which they were experienced in
assessing.” The judge went on to conclude that “the evidence
supports the overall wisdom of the course which they adopted. The
assertions made by [the claimant] that they might possibly have
adopted more robust action are in my view quite insufficient to
establish that the course adopted was misguided, let alone
unreasonable”. That approach was echoed by Baroness Hale of
Richmond – “…I don’t not think that it has been demonstrated that,
had the police behaved at the outset in the way in which it is now
said they should have behaved, the children’s experience would have
been any better. Indeed, it could have been a great deal worse…
Hindsight is a wonderful thing and no doubt the police have learned
lessons from this whole experience. In a highly charged community
dispute such as this, it is all too easy to find fault with what
the authorities have done, when the real responsibility lies
elsewhere”.
Comment
This is another
interesting case reinforcing the nature of the positive obligation
on the state to protect citizens from infringements of their
article 3 rights. Readers may recall the European Court of Human
Rights decision in Hadiye Dur v. Turkey. The
positive obligation effectively mirrors the nature of the
obligation under article 2. It is clear that, although the courts
will scrutinise executive action with a greater intensity than
before the coming into force of the Human Rights Act, they will be
slow to second guess operational decisions made by those in a
unique position to judge all potential ramifications.
Finally, there was an interesting comment from
Lord Hoffman on the role of the Northern Ireland Human Rights
Commission (NIHRC) who appeared as first intervenor. Despite
acknowledging the general assistance of intervenors on questions of
general public importance, in this case the NIHRC was
criticised for simply repeating “in rather more emphatic terms”
points already made adequately by the claimant’s legal team. Lord
Hoffman expressed the hope that “intervenors will avoid
unnecessarily taking up the time of the House in this way”.
Nick Peel
Weightmans LLP