E v Chief Constable of the Royal Ulster Constabulary
| Jurisdiction | England & Wales |
| Judge | LORD HOFFMANN,LORD BROWN OF EATON-UNDER-HEYWOOD,BARONESS HALE OF RICHMOND,LORD CARSWELL,LORD SCOTT OF FOSCOTE |
| Judgment Date | 12 November 2008 |
| Neutral Citation | [2008] UKHL 66 |
| Date | 12 November 2008 |
| Year | 2009 |
| Court | House of Lords |
[2008] UKHL 66
Appellate Committee
Lord Hoffmann
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
Appellant:
Karen Quinlivan
Jessica Simor
(Instructed by Madden & Finucane)
First Interveners (Northern Ireland Human Rights Commission)
Barry MacDonald QC
Fiona Doherty
(Instructed by Northern Ireland Human Rights Commission)
Respondent:
Bernard McCloskey QC
Paul Maguire QC
(Instructed by Crown Solicitor)
Second Interveners (Children's Law Centre and Northern Ireland Commissioner for Children and Young People (Written submissions only))
Martin O'Rourke
(Instructed by Children's Law Centre)
My Lords,
I have had the privilege of reading in draft the opinion of my noble and learned friend Lord Carswell. I agree with it and, as he has dealt fully with the facts and the law, I shall not detain your Lordships by covering the same ground. For the reasons he gives, I would dismiss the appeal.
It may however be of some assistance in future cases if I comment on the intervention by the Northern Ireland Human Rights Commission. In recent years the House has frequently been assisted by the submissions of statutory bodies and non-governmental organisations on questions of general public importance. Leave is given to such bodies to intervene and make submissions, usually in writing but sometimes orally from the bar, in the expectation that their fund of knowledge or particular point of view will enable them to provide the House with a more rounded picture than it would otherwise obtain. The House is grateful to such bodies for their help.
An intervention is however of no assistance if it merely repeats points which the appellant or respondent has already made. An intervener will have had sight of their printed cases and, if it has nothing to add, should not add anything. It is not the role of an intervener to be an additional counsel for one of the parties. This is particularly important in the case of an oral intervention. I am bound to say that in this appeal the oral submissions on behalf of the NIHRC only repeated in rather more emphatic terms the points which had already been quite adequately argued by counsel for the appellant. In future, I hope that interveners will avoid unnecessarily taking up the time of the House in this way.
My Lords,
I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Carswell and for the reasons he has given, with which I am in full agreement and to which I can add nothing of value, I too would dismiss this appeal.
My Lords,
The world looked on in consternation and amazement in September 2001 as day after day little girls being taken to school by their parents were subjected to a barrage of intimidating clamour, insults, abuse and offensive missiles from by-standers, some of them children themselves, as they walked up the street. The experience was obviously terrifying for the children and made more so by the precautions deemed necessary to enable them to get to school without physical harm. They walked in a group between lines of armoured vehicles and police or service personnel holding riot shields some of them facing the children rather than the aggressors. It is little wonder that their experiences had a marked effect upon their physical and emotional heath. It was the fact that little children could be subjected to such prolonged and very public ill-treatment which horrified the outside world and made it hard for them to understand, not only why the aggressors could think it in any way acceptable to subject the children to such an ordeal, but also why the authorities could allow it to happen. It is because of this that I would like to add just a few words to the opinion of my noble and learned friend, Lord Carswell.
I agree with him that it would have been preferable had the appellant's daughter been made a party to these proceedings and even separately represented. With the best will in the world, there is a tendency to see confrontations such as this through adult eyes, and to forget that these are not the eyes of children, who are simply the innocent victims of other people's quarrels. Fortunately, we have had the assistance of some very helpful written submissions from the Children's Law Centre and Northern Ireland Commissioner for Children and Young People. They draw attention to the particular vulnerability of children when exposed to violent conflict. They quote Thomas Hammerberg, Council of Europe Commissioner for Human Rights, in his 2007 Children's Law Centre lecture:
"The atmosphere of violence and the tension tend to affect children deeply… Younger human beings have less ability to see the context and understand why people behave as they do and, certainly, their time perspective is different. All this makes them so much more vulnerable."
The European Court of Human Rights has taken particular note of the vulnerability of children in its judgments on the obligations of the state to protect people from inhuman or degrading treatment. It is noteworthy that the landmark rulings in which the state has been found responsible for failing to protect victims from serious ill-treatment meted out by private individuals have concerned children. The case of A v United Kingdom (1999) 27 EHRR 611 was decided shortly before the leading case of Osman v United Kingdom (2000) 29 EHRR 245. A v United Kingdom established the principle that the state was obliged to take measures designed to ensure that people were not subjected to ill-treatment 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 such protection. Osman 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. There was no breach in Osman itself; but breaches were found in both 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 all about. In E, they had failed to monitor the situation after a step-father had been convicted of sexual abuse, and so it was held that they should have found out that he was abusing the children and done something to protect them. The Court said this, at para 99:
"The test under article 3 however does 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 is sufficient to engage the responsibility of the state."
These and later cases show that the special vulnerability of children is relevant in two ways. First, it is a factor in assessing whether the treatment to which they have been subjected reaches the 'minimum level of severity' - that is, the high level of severity - needed to attract the protection of article 3. As the Court recently reiterated in the instructive case of Mayeka v Belgium (2008) 46 EHRR 23, para 48:
"In order to fall within the scope of article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends 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."
Detaining a Congolese child of five, who had been separated from her family, for two months in an immigration detention facility designed for adults met that high threshold even though the staff had done their best to be kind to her.
The special vulnerability of children is also relevant to the scope of the obligations of the state to protect them from such treatment. Again, in Mayeka v Belgium, at para 53, the court reiterated, citing Z, A, and Osman, that:
"… the obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires states to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals… Steps should be taken to enable effective protection to be provided, particularly to children and other vulnerable members of society, and should include reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge." (emphasis supplied)
Despite the fact that the state had detained the little girl, the Court treated the case, not as a breach of its negative obligation, but as a breach of its positive obligation to look after her properly. She "indisputably came within the class of highly vulnerable members of society to whom the Belgian State owed a duty to take adequate measures to provide care and protection as part of its positive obligations under article 3 of the Convention" (para 55). This they had failed to do (para 58). The Court also found a breach of the state's obligations towards the child's mother, because of the distress she must have suffered at her daughter's treatment, even though it could be said that she had to some extent brought it on herself by arranging for the child to travel through Belgium without a visa (para 62).
That case demonstrates the wisdom of what was said by my noble and learned friend, Lord Brown of...
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