The Holy Cross demonstrations
In 2001 there were a series of violent demonstrations against parents of some of the pupils of Holy Cross Girls’ Roman Catholic Primary School walking with their daughters to and from the school along through a Protestant area of the Ardoyne Road, Belfast, by so-called Loyalists. (For those unaware of the story there is a helpful potted history of events here.) As Lady Hale subsequently summed it up in the House of Lords [below]:
“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 bystanders, some of them children themselves, as they walked up the street” .
The legal proceedings
One of the parents subsequently sought judicial review of the actions (or alleged inactions) of the police. She had claimed before the lower courts that she and her daughter had suffered inhuman and degrading treatment contrary to Article 3 ECHR: arguments were also presented relating to Article 2 (right to life) but they were not pursued subsequently. An application for judicial review was dismissed by the High Court of Northern Ireland and a subsequent appeal was also dismissed.
When the matter reached the House of Lords, in Re E (a child) (Northern Ireland)  UKHL 66, the major point at issue was whether the state, through its emanations the Royal Ulster Constabulary and the Police Service of Northern Ireland, was in breach of its positive obligation under the Convention to take the necessary steps to prevent the inhuman and degrading treatment of the appellant and her daughter. It was also claimed that the police had acted in a discriminatory fashion . It was not suggested that the state, through the police, had subjected the appellant or her daughter to any such treatment but that it had failed to take sufficient steps to prevent such actions by the protesters and had therefore failed to discharge the positive duty laid upon it by Article 3 ECHR: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment” .
The House of Lords [Brown of Eaton-under-Heywood, Carswell, Hoffmann, Scott of Foscote and Bs Hale of Richmond] dismissed the appeal unanimously. In short:
“It appears clear that the motives of the protesters were founded, at least to a large extent, upon sectarian bias. There is, however, nothing to indicate that the police were motivated by any such bias to fail to provide the level of protection to the children and their parents than they would have provided to persons of any other religious persuasion faced with the same circumstances. They took all reasonable steps to protect them … and there is nothing, however carefully one examines the evidence, to substantiate any suggestion of sectarian bias in their handling of the situation” [66: per Lord Carswell].
But that, it seems, was by no means the end of the story. The Belfast Telegraph now reports that three former pupils at Holy Cross have received compensation under the terms of the Northern Ireland Criminal Injuries Compensation Scheme 2002 for having had to walk through the protests on their way to school. After a Freedom of Information request from the newspaper, the Department of Justice confirmed that it had received eight compensation claims relating to the incident and had paid compensation in respect to three of them. However, it refused to speculate about the total compensation it expected to pay, because “Compensation Services are unable to predict how many claims will be received”. The Department also refused to detail the three individual payments, claiming that disclosure could lead to the identification of the individuals concerned.
None of the above is to suggest that the House of Lords came to the wrong conclusion in 2008: the police had to make a very finely-balanced decision and, as we all know, hindsight is 20:20. But even though she joined in dismissing the appeal, Lady Hale pointed out at the time that the police had simply got it wrong – even though they had done so for what seemed to them to be entirely proper reasons:
“First, it concerns children. Second, there is no issue about whether the police should have appreciated the real and immediate risk of ill-treatment. They knew all about it. It was going on under their noses. The fact that it may not have occurred to them that it fell within Article 3 makes no difference. Third, while they were undoubtedly doing their very best to ensure that the children could get to school by their usual route without suffering physical harm, the steps they took made the experience even more frightening for the children: closing the road, making the parents and children walk together under escort at defined times in the morning and afternoon … Fourth, they let this situation continue throughout half a school term. The evidence suggests that this was because they saw it as part of a complex community dispute, in which a Loyalist enclave on this area of North Belfast saw itself as under threat from the encroaching Nationalists, and was exercising a right to ‘protest’ about this. The police now accept that this was not a legitimate exercise of the right to protest. But they also believed that more sinister forces on the Loyalist side might exploit the dispute to foment much more serious violence elsewhere in Belfast if the matter was not carefully handled and ultimately a political solution found” [11: emphasis added].
Further comment is unnecessary.