IN RE E (A CHILD) [2008] UKHL 66
FACTS:-
The case arose out of the events of September 2001, when Catholic children attending the Holy Cross Girls’ Primary School in Belfast were subjected to a barrage of intimidation from loyalist bystanders. They had to be protected by a line of police and service personnel but suffered damage to their physical and emotional health.
The situation continued through half a school term. Eventually the police signalled their intentions to take firmer action and the protest was abandoned.
The mother and her young daughter were two of those affected. The mother brought judicial review proceedings against the police seeking a declaration that the police treatment of them had been inhuman and degrading, under Article 3 of the Human Rights Convention, as well as a declaration that the police had discriminated against them pursuant to Article 14.
Article 3 states:-
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 14 states:-
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
HELD:-
Lord Hoffman would dismiss the appeal of the Claimants. He commented that an intervention (in this case by the Northern Ireland Human Rights Commission and the Children’s Law Centre) was not required where such intervention merely repeated the points made by the Claimant.
Lord Scott would also dismiss the appeal.
Baroness Hale said the case of A v United Kingdom (1999) 27 EHRR 611 established the principle that the state was obliged to take measures to protect victims from serious ill treatment meted out by private individuals. Vulnerable people were entitled to be protected by effective deterrent measures. The existence of the defence of reasonable chastisement failed to afford children any such protection.
The case of Osman v United Kingdom (2000) 29 EHRR 245 took the matter further by establishing a duty to take more pro-active protective measures to guard against real and immediate risk of which the authorities knew or ought to have known. Such breaches were found in Z v United Kingdom (2002) 34 EHRR 97 and E v United Kingdom (2003) 36 EHRR 519.
In Z the authorities had failed to protect children from prolonged abuse and neglect which they knew about. In the case of E, the authorities had failed to monitor the situation after a step father had been convicted of sexual abuse. The European Court said that the test under Article 3 did not require it to be shown that “but for” the failing or omission of the public authority ill-treatment would not have happened. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm was sufficient to engage the responsibility of the state.
These cases showed that the special vulnerability of children was relevant in two ways. First, it was a factor in assessing whether the treatment to which they had been subjected reached the “minimum level of severity” needed to attract the protection of Article 3.
In the case of Mayeka v Belgium (2008) 46 EHRR 23 the European Court had said that in order to fall within the scope of Article 3, the ill treatment had to attain a minimum level of severity, the assessment of which depend on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim.
This case concerned a refugee child who was detained by the Belgian authorities for a few months. The European Court held that the state had breached its obligations to the child’s mother because of the distress that she suffered.
There must be some distinction between the scope of the state’s negative duty not to take life or ill treat people in a way that fell foul of Article 3, and its duty to protect people from the harm which others might do to them. In the case of Osman it was said that the scope of the positive obligation to protect had to be interpreted in a way which did not impose an impossible or disproportionate burden on the authorities.
This case was different from Osman and the recent case of Van Colle v Chief Constable of Herfordshire Police [2008] UKHL 50.
Eventually the police signalled their intentions to take firmer action and the protest was abandoned.
As a general rule a policeman could not stand by and let another person kill or seriously ill treat another, when he has the means of preventing it. However this situation was not quite so straightforward. Hindsight was a wonderful thing, and no doubt there were lessons to be learned. However in a highly charged community dispute, the real responsibility lay elsewhere. Therefore there was no breach of duty.
Lord Carswell described the facts of the case and considered a number of issues:-
Lord Carswell said that whilst he would regard it as generally preferable to join the child into proceedings, he would accept that the proceedings were well founded. The mother was entitled to bring proceedings on behalf of the child.
Certainly some of the more extreme forms of conduct by the loyalist protestors constituted inhuman or degrading treatment.
However it was quite clear from the case of Osman that the obligation placed upon the authorities in an Article 2 case was to do all that could reasonably be expected of them to avoid a real and immediate risk of life, once they have or ought to have knowledge of the existence of the risk. The obligation under Article 3 was no different. In the case of Re Officer L [2007] UKHL 36 Lord Carswell had said that there had to be a reflection of the principle of proportionality, striking a fair balance between the rights of the community and the personal rights of the individual. That conclusion was supported by other cases such as Oneryildiz v Turkey [2004] ECHR 657, Z v United Kingdom (see above) and Gladani Congregation of Jehovah’s Witnesses v Georgia [2007] ECHR 1160. Article 3 protection called for reasonable and effective measures.
The correct approach on the issue of proportionality was set out in Lord Bingham’s speech in R(SB) v Governors of Denbigh High School [2006] UKHL 15 who referred in turn to the dicta of Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (paras 25-28). The domestic court had to make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time. Proportionality should be judged objectively by the court. What mattered was the practical outcome, not the quality of the decision making process that led to it.
That was the test that Lord Carswell would now apply to the facts of this case. In his judgment the evidence supported the overall wisdom of the course that was taken.
The mother’s counsel had argued that the police had failed to have regard to the best interests of the children in carrying out the operation. This was based on the requirement in Article 3(1) of the United Nations Convention on the Rights of the Child 1989. This had been ratified by the UK in 1991, but had not been incorporated into domestic law. This was a matter which might be relevant in determining whether the actions of the police satisfied the obligations placed upon them by Article 3 of the Convention.
However Lord Carswell was satisfied that the police fulfilled the positive obligation under Article 3.
The mother had also alleged discrimination under Article 14. Lord Carswell said that there was no evidence of discrimination.
Lord Brown agreed with Baroness Hale and Lord Carswell.
FACTS:-
The case arose out of the events of September 2001, when Catholic children attending the Holy Cross Girls’ Primary School in Belfast were subjected to a barrage of intimidation from loyalist bystanders. They had to be protected by a line of police and service personnel but suffered damage to their physical and emotional health.
The situation continued through half a school term. Eventually the police signalled their intentions to take firmer action and the protest was abandoned.
The mother and her young daughter were two of those affected. The mother brought judicial review proceedings against the police seeking a declaration that the police treatment of them had been inhuman and degrading, under Article 3 of the Human Rights Convention, as well as a declaration that the police had discriminated against them pursuant to Article 14.
Article 3 states:-
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 14 states:-
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
HELD:-
Lord Hoffman would dismiss the appeal of the Claimants. He commented that an intervention (in this case by the Northern Ireland Human Rights Commission and the Children’s Law Centre) was not required where such intervention merely repeated the points made by the Claimant.
Lord Scott would also dismiss the appeal.
Baroness Hale said the case of A v United Kingdom (1999) 27 EHRR 611 established the principle that the state was obliged to take measures to protect victims from serious ill treatment meted out by private individuals. Vulnerable people were entitled to be protected by effective deterrent measures. The existence of the defence of reasonable chastisement failed to afford children any such protection.
The case of Osman v United Kingdom (2000) 29 EHRR 245 took the matter further by establishing a duty to take more pro-active protective measures to guard against real and immediate risk of which the authorities knew or ought to have known. Such breaches were found in Z v United Kingdom (2002) 34 EHRR 97 and E v United Kingdom (2003) 36 EHRR 519.
In Z the authorities had failed to protect children from prolonged abuse and neglect which they knew about. In the case of E, the authorities had failed to monitor the situation after a step father had been convicted of sexual abuse. The European Court said that the test under Article 3 did not require it to be shown that “but for” the failing or omission of the public authority ill-treatment would not have happened. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm was sufficient to engage the responsibility of the state.
These cases showed that the special vulnerability of children was relevant in two ways. First, it was a factor in assessing whether the treatment to which they had been subjected reached the “minimum level of severity” needed to attract the protection of Article 3.
In the case of Mayeka v Belgium (2008) 46 EHRR 23 the European Court had said that in order to fall within the scope of Article 3, the ill treatment had to attain a minimum level of severity, the assessment of which depend on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim.
This case concerned a refugee child who was detained by the Belgian authorities for a few months. The European Court held that the state had breached its obligations to the child’s mother because of the distress that she suffered.
There must be some distinction between the scope of the state’s negative duty not to take life or ill treat people in a way that fell foul of Article 3, and its duty to protect people from the harm which others might do to them. In the case of Osman it was said that the scope of the positive obligation to protect had to be interpreted in a way which did not impose an impossible or disproportionate burden on the authorities.
This case was different from Osman and the recent case of Van Colle v Chief Constable of Herfordshire Police [2008] UKHL 50.
- First of all it concerned children.
- Secondly there was no issue as to whether the state failed to appreciate a real and immediate risk.
- Thirdly the steps taken by the police actually made the experience worse for the children
- Fourth the situation continued throughout half a school term
Eventually the police signalled their intentions to take firmer action and the protest was abandoned.
As a general rule a policeman could not stand by and let another person kill or seriously ill treat another, when he has the means of preventing it. However this situation was not quite so straightforward. Hindsight was a wonderful thing, and no doubt there were lessons to be learned. However in a highly charged community dispute, the real responsibility lay elsewhere. Therefore there was no breach of duty.
Lord Carswell described the facts of the case and considered a number of issues:-
- Whether the mother was entitled to seek relief on behalf of her child, who was not formally a party to the proceedings
- Whether the mother and her daughter suffering inhuman and degrading treatment
- Whether Article 3 was engaged so as to give rise to the positive obligation to protect under that Article.
- If so, whether the police took sufficient steps to discharge that obligation.
Lord Carswell said that whilst he would regard it as generally preferable to join the child into proceedings, he would accept that the proceedings were well founded. The mother was entitled to bring proceedings on behalf of the child.
Certainly some of the more extreme forms of conduct by the loyalist protestors constituted inhuman or degrading treatment.
However it was quite clear from the case of Osman that the obligation placed upon the authorities in an Article 2 case was to do all that could reasonably be expected of them to avoid a real and immediate risk of life, once they have or ought to have knowledge of the existence of the risk. The obligation under Article 3 was no different. In the case of Re Officer L [2007] UKHL 36 Lord Carswell had said that there had to be a reflection of the principle of proportionality, striking a fair balance between the rights of the community and the personal rights of the individual. That conclusion was supported by other cases such as Oneryildiz v Turkey [2004] ECHR 657, Z v United Kingdom (see above) and Gladani Congregation of Jehovah’s Witnesses v Georgia [2007] ECHR 1160. Article 3 protection called for reasonable and effective measures.
The correct approach on the issue of proportionality was set out in Lord Bingham’s speech in R(SB) v Governors of Denbigh High School [2006] UKHL 15 who referred in turn to the dicta of Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (paras 25-28). The domestic court had to make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time. Proportionality should be judged objectively by the court. What mattered was the practical outcome, not the quality of the decision making process that led to it.
That was the test that Lord Carswell would now apply to the facts of this case. In his judgment the evidence supported the overall wisdom of the course that was taken.
The mother’s counsel had argued that the police had failed to have regard to the best interests of the children in carrying out the operation. This was based on the requirement in Article 3(1) of the United Nations Convention on the Rights of the Child 1989. This had been ratified by the UK in 1991, but had not been incorporated into domestic law. This was a matter which might be relevant in determining whether the actions of the police satisfied the obligations placed upon them by Article 3 of the Convention.
However Lord Carswell was satisfied that the police fulfilled the positive obligation under Article 3.
The mother had also alleged discrimination under Article 14. Lord Carswell said that there was no evidence of discrimination.
Lord Brown agreed with Baroness Hale and Lord Carswell.