A shock decision?

15 February 2011 by

JR1, Re Judicial Review [2011] NIQB 5 – Read judgment

A decision of the Northern Ireland high court has highlighted the continued narrow definition of “standing”, or the right to bring a claim, under the Human Rights Act 1998.

An 8-year-old child applied to bring a claim, which included a challenge under Article 2 of the European Convention on Human Rights (the right to life), to the decision by police to introduce tasers in Northern Ireland.

A taser is a weapon which, when fired, sends an electrical current through the body of the person it is fired at. This causes temporary loss of muscular control and pain. Medical evidence on the dangers of taser use on children is inconclusive and incomplete. However, it is not yet safe to say that they are not potentially lethal to children.

No standing

In order to challenge the introduction of tasers on human rights grounds, the Applicant needed to establish that she was a victim, within the meaning of the relevant law. Article 34 of the ECHR sets out that to bring such a  challenge, an Applicant must be a

… victim of  violation of one of the rights set forth in the Convention or the protocols thereto.

The Court noted that there is “a degree of flexibility in[..]the concept of victimhood” (paragraph 12). However, a public interest challenge, that is a claim brought not by victims of a violation but by a person or persons who merely object to a decision, is not permissible.

The Applicant had several arguments to support her case that she was a victim. First, her grandmother had been killed in 1981 by a plastic bullet fired by police. The Applicant said this made her fear the same event happening to her mother. The Court was not persuaded this made the child a victim: the circumstances of the grandmother’s death were “entirely divorced” from those in question, as plastic bullets were designed to be used in public order incidents, whereas tasers are never to be used for those purposes according to operational guidance.

Secondly, the Applicant lived in an area of Belfast where a notorious feud was ongoing. This caused violence and disorder on nearby streets. However, this again was insufficient to make the child a victim: tasers are not going to be used in incidents of public disorder and no evidence indicated any circumstances in which the child might be in the vicinity of the deployment of a taser.

Thirdly, it was argued that the Applicant was a victim by being a member of a group, namely children, which was vulnerable in relation to the use of tasers, given the current state of medical knowledge. This argument was also rejected: no factual situation had been suggested which raised any material risk that the child would be exposed to the use of a taser.

As a consequence, she was not a victim and had no standing to bring the human rights challenge.

Judicial Review Standing

The narrow nature of human rights standing in is contrast to the requirements of standing for judicial review, which have been relaxed in the past couple of decades. Traditionally, to bring a judicial review challenge, an Applicant had to show a “sufficient interest” in the decision to be reviewed, a test with a statutory basis in section 31(3) of the Senior Courts Act 1981 (formerly the Supreme Court Act 1981).

One landmark case which helped establish the possibility of public interest challenges to administrative decisions was R v Inspectorate of Pullution Ex p Greenpeace Ltd (No 2), R v Ministry of Agriculture, Fisheries  and Food Ex p Greenpeace Ltd [1994] 4 All ER 329. The environmental movement Greenpeace was permitted to challenge a decision regarding the disposal of radioactive waste. At first instance, Otton J was influenced in allowing the challenge by Greenpeace’s nature as a body with relevant experience and real concern for the environment. The fact that its supporters living in the region affected by the decision, 2,500 in number, may not have an effective way of bringing their concerns into a judicial forum if the challenge by Greenpeace was barred was also a factor.  Further, it had been consulted as part of the consultation process leading to the decision.

Similar points were made in the decision of Rose LJ and Scott Baker J in R v Secretary of State for Foreign and Commonwealth Affairs Ex p World Development Movement [1995] 1 WLR 386, in which the World Development Movement was permitted to challenge a decision not to give assurance that the UK would provide no further funds for a hydro-electric power station outside the jurisdiction. The Court was persuaded to permit the challenge due to factors including  the likely absence of any other responsible challenger, the significance of the issue in question, the nature of the breach of duty against which relief was sought and the prominent role of the World Development Movement in advising on overseas aid.

Despite the Applicant not having standing, the court went on to consider whether in fact the introduction of tasers was rational and human rights compliant. In short, it was:

it is of significance that the human rights advisors retained by the Board were satisfied that the deployment and operational guidance and training were in accordance with the Human Rights Act 1998. The reasons advanced in relation to less lethal technology are clearly significant and although I accept that a reasonable decision maker might have made a different decision I am entirely satisfied that the decision to deploy tasers on a pilot basis was well within the range of rational decisions that was available to the Chief Constable. I conclude, therefore, that the decision to deploy in the circumstances did not constitute a breach of Section 75 of the Northern Ireland Act 1998.

Conclusion

The Courts continue to construe human rights standing narrowly, but this is consistent with the interpretation taken by the European Court of Human Rights, which will not hear claims which relate to abstract, hypothetical violations. In short, is not enough to care deeply about an issue, one must also be directly affected by a public authority’s decision in order to bring a claim under human rights law.

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