In the matter of an application by 'E' for Judicial Review
| Jurisdiction | Northern Ireland |
| Judge | Campbell LJ |
| Judgment Date | 2006 |
| Neutral Citation | [2006] NICA 37 |
| Date | 03 October 2006 |
| Court | Court of Appeal (Northern Ireland) |
Neutral Citation No. [2006] NICA 37
Ref:
CAMC5625
Judgment: approved by the Court for handing down
Delivered:
26/09/2006
(subject to editorial corrections)
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN
NORTHERN IRELAND
________
IN THE MATTER OF AN APPLICATION BY ‘E’ FOR JUDICIAL REVIEW
________
CAMPBELL LJ
[1] In 2001 there were 230 pupils attending Holy Cross Girls’ Primary
School, which is on Ardoyne Road in North Belfast. They were all aged
between 3 and 11 years. For many of these pupils the usual route from home
to the school was along Ardoyne Road. As they went along Ardoyne Road
they passed through an area bounded by Glen Bryn Housing Estate. The
residents of this estate and some of the adjoining streets are mostly Protestant
and regarded as being ‘Loyalist’ in outlook. It is an enclave in the district of
Ardoyne where the religion of the residents is predominantly Catholic and
many of them are regarded as being ‘Nationalists’.
[2] Between 19 June and the end of November 2001 during the school
terms the pupils and parents accompanying them on the journey to the school
faced a vociferous protest as they passed Glen Bryn Estate. They were
subjected to attacks with missiles and to insults and intimidation. At the time
it was claimed that this was in protest against a failure on the part of the
Government to provide local services. Other causes have also been advanced
but none of these explain why the protest was aimed at young children going
to school nor could possibly justify it. In his judgment in the court below (at
paragraph 63) Kerr J (as he was then) refers to these events on the Ardoyne
Road as “one of the most shameful and disgraceful episodes in the recent
history of Northern Ireland”. This court and any objective observer could only
agree with this comment.
2
[3] ‘E’, the mother of one of the children affected by the protest, issued
proceedings in November 2001 for judicial review in the form of a declaration
that the Chief Constable of the Royal Ulster Constabulary and the Secretary of
State for Northern Ireland had failed to secure the effective implementation of
the criminal law and to ensure safe passage for her and for her daughter to
the school. ‘E’ was afforded anonymity for the safety of her child and the
proceedings concluded in June 2004 when her application was dismissed.
[4] In December 2004, after hearing that lasted a number of days, a
differently constituted Court of Appeal gave the applicant leave to appeal
from the dismissal of her application although the time for doing so under the
Rules of the Supreme Court had passed. Grafted onto this application by ‘E’
was an application by the Chief Constable and the Secretary of State for the
court to exercise its discretion in favour of applying the principle enunciated
by Lord Slynn in R -v- Secretary of State for the Home Department ex p.Salem
[1999] 1AC 45 that “appeals which are academic between parties should not
be heard unless there is good reason in the public interest for doing so …”.
While this issue is not expressly mentioned in the order made by the court it
is implicit in the grant of leave to appeal that the court considered that there
was good reason in the public interest for allowing the appeal to proceed.
[5] When the appeal came on for hearing the respondents renewed their
application under the Salem principle on account of the further period of time
that had by then elapsed. It was urged on the court by Ms Quinlivan (who
represented ‘E’ on the appeal) that the matter was still of importance as it
raised issues concerning the nature and extent of the discretion of the police
in a situation where there is a conflict of rights. Other issues raised in the
appeal were the extent to which the court should review the actions of the
police; the interpretation of the Police (Northern Ireland) Act 2000; the
application of the United Nations Convention on the Rights of the Child; and
the need for guidance on the right to education. She argued that these are all
matters of general legal public interest. Mr McCloskey QC (who appeared
with Mr Paul Maguire for the respondents) submitted that these issues are
now of academic interest only and that this court could not provide any
remedy of practical value to the appellant if she were to succeed in her
appeal.
[6] The court accepted that it is required to exercise the discretion given to
it with caution. The fact that these proceedings, confined as they are to the
rights of the applicant, were initiated at a time when there was widespread
public interest in the dispute is not necessarily a reason for proceeding to hear
the appeal at this time. To a considerable extent the matter is now of academic
interest. However important issues about the Police (Northern Ireland) Act
2000 and the Convention on the Rights of the Child remain to be decided and
in view of the earlier decision of the court we did not consider that the further
3
passage of time had altered the position sufficiently to cause us to depart from
it and we allowed the appeal to proceed.
[7] The evidence contained in copious affidavits filed on behalf of the
appellant, leading to a significant number in reply from the respondent,
reveals that there is a marked difference between the parties as to the
adequacy of the response by the police to the protest. Parents and observers
saw the police close the Ardoyne Road and permit them to pass along it to
reach the school only when the police allowed them to do so. Meanwhile the
protestors gathered with the knowledge that the parents and children would
walk along the road at fixed times. The police view was that if a more
aggressive approach was adopted, involving the arrest and detention of those
suspected of criminal offences, this could lead to greater and more
widespread disorder.
[8] With such a marked difference of opinion between ‘E’ and her
witnesses and the police as to the adequacy of the protection provided by
them it is necessary to summarise the evidence. First we consider it from the
aspect of “E” and her witnesses and then from that of the police officers and
others responsible for making decisions as to how to cope with the situation
that faced them.
The evidence of ‘E’ and her witnesses.
[9] In the affidavit grounding her application for judicial review, ‘E’
describes her experience on going to and from the school with her daughter.
On 19 June 2001 as her daughter was returning from school along Ardoyne
Road she witnessed an incident in which a number of men attacked a car with
hammers and other weapons. The child and her friends were taken back to
the safety of the school by a school patrol woman and eventually she made
her way home by another route down the Crumlin Road. This experience
caused her daughter considerable upset and on the following day the mob
was back again and ‘E’ and other parents found it impossible to take their
children to school as the police had closed the route along Ardoyne Road. The
police told the parents that they could not guarantee their safety or that of
their children. On 21 June ‘E’ did not attempt to take her daughter to school as
she together with some other parents had held discussions with residents of
the Glen Bryn Estate and as a result they knew that the children would not be
permitted to pass along the Ardoyne Road to the school.
[10] On Friday 22 June 2001 ‘E’s’ daughter made her way to school by the
Crumlin Road. On returning home with her mother after school, by the same
route along the Crumlin Road, four people in a car shouted sectarian abuse at
them. ‘E’ states that this happened with a number of police officers in the
immediate vicinity and they did not take any steps to intervene. This incident
caused her daughter much distress and ‘E’ realised then that travelling to the
To continue reading
Request your trial
2 cases
-
E v Chief Constable of the Royal Ulster Constabulary
...Scott of Foscote Baroness Hale of Richmond Lord Carswell Lord Brown of Eaton-under-Heywood HOUSE OF LORDS SESSION 2007-08 on appeal from: [2006] NICA 37 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Karen Quinlivan Jessica Simor (Instructed by Madden & Finucane) First Intervener......
-
Officers C,D,H and R’s Application - Officer A’s application - Jordan’s (Hugh) Application
...of the police in the present case have to pass the test of proportionality, which must be decided by the court. The Court of Appeal [2006] NICA 37 was therefore in error in applying the Smith test and I propose to assess the actions of the police in the light of the evidence adduced and by ......