“it is all too easy to find fault with what the authorities have done..”

The BBC report on the Law Lord’s criticism of the NI Human Right Commission’s intervention in support of a case brought by a mother of a child who was a pupil at the Holy Cross School during 2001. Chief Human Rights Commissioner, Monica McWilliams, has claimed the Commission’s intervention, in support of the case, had been vindicated by the clarification of an issue of law used by the Appeal Court. But from the unanimous law lords ruling

[Lord Hoffman]”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.”

Lord Hoffman’s full comment.

My Lords,

1. 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.

2. 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.

3. 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. [added emphasis]

Additionally, Baroness Hale of Richmond focussed on the issue of law the NIHRC Williams referred to

12. Hence the essential dispute before us is whether the police were entitled to take into account the risk of serious harm and even death to unspecified people elsewhere in Belfast when deciding how to protect the Holy Cross school children. Had they not done so, it is argued, they could and should have taken a more robust attitude to the aggressors from the outset, arresting the ring-leaders and driving the others off the street. This, it is said, is what they finally decided to do after the aggression had been going on for half a term, and shortly after they signalled their intentions, the so-called ‘protest’ was abandoned.

13. Both the trial judge and the Court of Appeal thought that the police were entitled to take those wider considerations into account. The Court of Appeal, perhaps understandably as their judgment came before this House had further clarified the matter in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, mistakenly applied the test derived from R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 to their assessment of the police behaviour. It is now clear that, under the Human Rights Act, the court must make its own assessment of whether a public authority has acted incompatibly with the convention rights. That said, as Lord Bingham said in Huang, para 16, the court has to “give appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice”. [added emphasis]

14. As a general principle, a police officer is not entitled to stand by and let one person kill or seriously ill-treat another, when he has the means of preventing it, just because he fears the wider consequences of doing so. He has to step in, come what may. But this situation was not as straightforward as that. In Z v United Kingdom and Kontrova v Slovakia it was quite obvious what could have been done to protect the children from harm: the Z children could have been taken into care and the Kontrova children’s father could have been arrested when he first threatened to kill them. It was rather less obvious what the authorities should have done to protect the children in E v United Kingdom and I have been troubled by the rejection of the “but for” test in the passage quoted in para 7 above. In the end, however, I do not think that it has been demonstrated that, had the police behaved at the outset in the way in which it is now said that they should have behaved, the children’s experience would have been any better. Indeed, it could have been a great deal worse. They were in very real physical danger at the beginning. On 5 September an explosive device was thrown into the road where they were walking but thankfully injured no-one. The difficulties and dangers to them in doing what it is now suggested should have been done cannot be ignored. Hindsight is a wonderful thing and no doubt the police have learned lessons from this whole experience. But in a highly charged community dispute such as this, it is all too easy to find fault with what the authorities have done, when the real responsibility lies elsewhere. [added emphasis]

15. For that reason, therefore, despite all the features which distinguish this case from those where no breach of duty has been found, and in agreement with Lord Carswell, I too would dismiss this appeal.

And in one of the references to the NIHRC in the leading ruling by Lord Carswell

39. Several deponents criticised the effectiveness of the steps taken by the police. Some, notably the appellant herself and Father Aidan Troy, the chairman of the board of governors of the school, described the screens as inadequate. It is apparent, however, that these criticisms are largely directed to the screening on 3 September 2001, whereas it was accepted by the police on reviewing that day’s events that this had not been satisfactory and that other steps should be adopted. Others have complained that there were gaps in the line of vehicles subsequently used, which enabled protesters to get too close to the children as they walked along the roadway. Mr Frank McGuinness, a member of NIHRC, regarded the riot gear worn by the police as intimidating and there were also complaints that the police vehicles faced the children instead of the protestors and that offensive posters were not removed. The major complaint, however, made by a number of critics, was that the police should have taken more robust action, in particular by forcing protesters off the street and making more widespread arrests, with the object of terminating the protest at an early stage. This complaint formed the leitmotiv of much of the submissions made by counsel for the appellant and the first intervener NIHRC. [added emphasis]

And later in that ruling

58. It was suggested on behalf of NIHRC that the risk of provoking collateral disorder was “essentially speculative and unquantified” and that reliance should not be placed on the ipse dixit of the police. There is, however, clear evidence of the volatile nature of the security situation in north Belfast at the time. The potential for the sudden development of violent disorder is shown by the speed with which it broke out when an incident occurred on 19 June 2001 and the length of time which it took to subside. When the police cleared the road on 3 September, using, as Mr McQuillan states, conventional crowd tactics, very violent protests ensued and serious rioting took place in the Upper Ardoyne area. The police view was that only a negotiated community solution would end the protest, a view shared by Government ministers. The efforts made to achieve this eventually bore fruit and the protest was ended and not recommenced. Acceptance of the validity of proceeding in this manner is not merely deferring to the police view, although it would be quite proper to accord a measure of discretion to them as a body with expertise in handling matters of public security, as both Kerr LCJ and the Court of Appeal recognised. Independently of according such latitude of judgment to the police, acceptance of the validity of the course which they adopted is a matter of what Lord Bingham of Cornhill described in Huang v Secretary of State for the Home Department [2007] 2 AC 167, 185, para 16 as

“performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice.”

The police had such responsibility and were uniquely placed through their experience and intelligence to make a judgment on the wisest course to take in all the circumstances. They had long and hard experience of the problems encountered in dealing with riotous situations in urban areas in Northern Ireland. The difficulty of catching and arresting malefactors who had means of retreat available through paths and gardens are self-evident. The police had available to them sources of information about what was happening in the community and what was likely to happen if they took certain courses of action, which they were experienced in assessing.

59. In my judgment the evidence supports the overall wisdom of the course which they adopted. The assertions made by the appellant and NIHRC that they might possibly have adopted more robust action are in my view quite insufficient to establish that the course adopted was misguided, let alone unreasonable. [added emphasis]

60. A further argument was presented on behalf of the appellant that the police had failed to have regard to the best interests of the children in carrying out the operation. This is based on the requirement in article 3(1) of the United Nations Convention on the Rights of the Child 1989, that in all actions concerning children “the best interests of the child shall be a primary consideration.” The Convention was ratified by the United Kingdom in 1991, but has not been incorporated into domestic law. The requirement is nevertheless a consideration which should properly be taken into account by the state and its emanations in determining upon their actions. It is accordingly a matter which may be relevant in determining whether the actions of the police satisfied the obligations placed upon them by article 3 of the Convention.

61. There was some conflict of evidence between the Chief Constable and members of NIHRC about an admission attributed to the former that the police had not paid proper regard to the best interests principle. Like the trial judge and the Court of Appeal, I do not find it either appropriate or necessary to attempt to resolve this conflict. I am satisfied that the senior police officers did at all stages pay regard to the interests of the children, with particular concern for their physical safety. Moreover, the evidence points sufficiently clearly to the conclusion that the action taken was in fact in their best interests. I do not find any substance in this argument. [added emphasis]

You can read the full ruling here.