Claim fails against Belfast police on protection of school walk from violence

15 December 2010 by

PF and EF v UK (Application No. 28326/09) – Read judgment

The European Court of Human Rights has dismissed an application brought against the police in Northern Ireland by a mother and her daughter who argued the police had failed to take sufficient action to protect them from loyalist riots on their route to primary school.

The court held that the police must be afforded a degree of discretion in taking operational decisions, and that in this case the police took all “reasonable steps” to protect the applicants.

The applicants lived in Ardoyne, a predominantly nationalist Catholic area of north Belfast. However, the Ardoyne Road was bordered on both sides by a loyalist Protestant housing estate. Holy Cross, a Catholic primary school, was located at one end of the Ardoyne Road, and children and their parents, including the applicants, would walk down the road to school.

In the summer of 2001 there were serious tensions and riots in Ardoyne between loyalists and nationalists. On 20 June 2001 children and parents walking their children to Holy Cross along the Ardoyne Road were confronted by a loyalist crowd. The police tried to keep the groups apart, but after reports of an armed man nearby they redirected the children to an alternative route on account of the risk to life. Because of the continuous violence and tensions, the police decided they could not provide safe passage to the children and their parents at the time, and so they were re-routed until the end of June, when the school term ended.

The disorder was still ongoing at the beginning of the new school term. At the start of the new term on 3 September the police put up perspex screens along the footpath to form a ‘tunnel’ and accompanied the parents and children to school, but the loyalist crowd verbally abused them and threw stones at them, injuring a police officer.

The police then escorted the children to school in a convoy: the children and their parents walked in the middle of the road whilst surrounded by military and police vehicles and escorted by police officers.

The loyalists continued their attempts to block the parents and children, and their behaviour became increasingly violent and abusive, including throwing bricks, balloons filled with urine and dog excrement, and one occasion an explosive device. They also shouted death threats, sectarian abuse and sexual obscenities, displayed pornographic material and used whistles and horns to create an intimidating atmosphere. At the height of the operation there were four hundred police officers and one hundred soldiers involved as well as two hundred soldiers in reserve.

Most parents nonetheless continued to take the route along the Ardoyne Road, refusing to take an alternative route or an armoured bus. The loyalist “protest” was suspended on 23 November 2001 after negotiations between the communities.

To the courts

PF, the mother of EF, brought judicial review proceedings against the Chief Constable of the police and the Secretary of State for Northern Ireland alleging that, amongst other matters, the policing operation had failed to protect the rights of the parents and children under Articles 2 (right to life), 3 (inhuman and degrading treatment) and 14 (anti-discirmination of the ECHR).

She complained that the failure of the police to take reasonable steps to prevent or mitigate the treatment they had suffered violated Articles 3 and 8. Further, because the police had failed to approach the events with the “special vigour” required where violence was motivated by religious hatred violated their Article 14 rights read together with Articles 3 and 8. Finally, they complained that they had no effective remedy for the violation of their rights because the police had immunity from civil negligence actions.

The application for judicial review was dismissed on the grounds that Article 2 was not engaged, and there was no evidence of discriminatory policing. No breach of Article 3 had been demonstrated because the judge held that actions of the police were reasonable. The Court of Appeal dismissed the appeal.

PF appealed to the House of Lords, although she did not pursue her complaints under Article 2. She argued that the police should have taken more robust action to quell the protest and protect the children by forcing the protesters back and making numerous arrests. Before the HL 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 accepted that the police had sufficient fore-knowledge of the treatment to trigger their obligation to take preventative action. However, the HL dismissed the appeal, finding that the applicant had not proved the police’s actions were unreasonable. It was held that the police had acted appropriately, having regard to concerns that a more robust approach could inflame the situation and lead to more widespread violence.

Decision of the European Court of Human Rights

Before the ECtHR, the applicants complained that the police had not taken all reasonably available measures to end their Article 3 treatment. In particular, they argued that the police were not entitled to balance the risk of potential disturbances elsewhere against the benefits of bringing their ill-treatment to an immediate end.

The ECtHR referred to the obligation on States to take effective measures to ensure that individuals are not subjected to Article 3 treatment by private individuals: this should include reasonable steps to prevent ill treatment of which the authorities had or ought to have had knowledge (Osman v. the United Kingdom
pp. 3159-60, § 116). It held that some of the more extreme behaviour had reached the minimum threshold of severity for Article 3 because it was premeditated, continued for two months, was designed to cause fear and distress and clearly resulted in considerable mental suffering. The issue, therefore, was whether the police took all “reasonable steps” (Z and Others v. the United Kingdom, no. 29392/95, para. 73) to prevent ill-treatment. The ECtHR noted:

40. 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)).

41.  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.

42.  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…

The court went on to hold that in view of the volatile situation the police took all reasonable steps to protect the applicants. It accepted that the police took action that they reasonably believed would end the protest with minimal risk. Further, the risks were not speculative and were based on police intelligence. In addition, the court noted that the police had not simply “stood by” but had provided protection to the parents and children: forty one police officers were injured in the operation. The complaint under Article 3 was therefore rejected.

Private and family life

The applicants’ complaint that their Article 8 rights to private and family life had been violated by the authorities’ failure to end the violence was also rejected. While the court accepted that the applicants suffered physical and psychological effects as a result of the protest, it held that “the operational decisions complained of fell within the ambit of legitimate police discretion and fully complied with the State’s positive obligations” (para. 52).


As to Article 14 (anti-discrimination), the applicants argued that the authorities had failed to approach the sectarian violence with the “special vigour” required by Article 14, or that they had been treated less favourably than the protesters. This was dismissed by the ECtHR. While it noted that there was a duty on States to take all reasonable steps to unmask a racist/ ethnic motive for violence, in this situation it was clear from the outset that the protesters’ motives were sectarian and the police took account of this when deciding not to take more forceful action. Further, there was no evidence of any sectarian bias by the police.

The applicants’ allegation that their Article 13 rights were violated because there was no effective mechanism for bringing a claim against the police was consequently dismissed. The ECtHR pointedly noted that:

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). (para. 62)

In any event, the applicants had failed to demonstrate why the JR proceedings did not amount to an effective remedy.

Comment – still hard to sue the police

Given the high threshold set by Osman in relation to claims against the police, this judgment is hardly surprising. It emphasises the wide discretion to be given to authorities who, being ‘on the ground’ and being equipped with local intelligence, are considered best-placed to assess the situation.

While it might appear puzzling that this case was taken, given the stringent legal test, it is necessary to consider it from the perspective of the applicants: having been subjected to abuse and harassment for two months on their way to school, it is unsurprising that they would question why no arrests were being made, nor why the protests were not stopped.

However, as emphasised in the judgment, it was the police’s wider concerns of the risk of escalating violence, based on intelligence that would not have been known to the applicants, that were considered crucial by the ECtHR.

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