Supplementary Memorandum submitted by the Northern
Ireland Human Rights Commission
4. POLICING PUBLIC
The introduction of the Public Processions (Northern
Ireland) Act in 1998 removed the power of the police to re-route
or impose conditions on parades. Although the police retain the
authority to constrain static protests under the 1987 Public Order
Northern Ireland Order, the Parades Commission now has the authority
to impose restrictions and conditions on contentious parades.
However, the police still have a primary responsibility
to ensure that people are able to exercise their basic human rights,
that peaceful and legal parades are able to take place, that lawful
protest is possible and that public order is maintained. To do
so the police have to try to strike a balance between the sometimes
competing and conflicting rights of individuals and communities
and they have to exercise discretion in their dual responsibility
to uphold the law and maintain order.
The police also have to balance their authority
to use force to maintain public order with their responsibility
to protect the right to life.
In this following section we begin by reviewing
the general responsibilities of the police with regard to managing
public order. We then discuss the case law of the European Court
of Human Rights to consider how they have clarified the role and
limitations of the police. Finally we address the issue of the
right to life and the use of force.
4.1 Policing and Human Rights
The Patten Report on the future of policing
in Northern Ireland stated clearly that the fundamental purpose
of policing should be ". . .the protection and vindication
of the human rights of all" (Patten 4.1). In saying this
the report was reiterating the themes of two primary documents
relating to police ethics and principles, the Council of Europe
Declaration on the Police (1979) and the United Nations
Code of Conduct for Law Enforcement Officials (1979). Although
neither of these is a legally binding document, they nevertheless
set down basic principles which establish the framework for policing
and the boundaries of police behaviour and activities which are
deemed to form the basis for law enforcement in all societies.
The Declaration on the Police does not refer
directly to human rights but rather defines the duty of the police
as being to protect their fellow citizens against violent, predatory
and other harmful acts, and to act with integrity, impartiality
and dignity. The UN Code of Conduct is more explicit, however,
and in Article 2 states that law enforcement officials "shall
respect and protect human dignity and maintain and uphold the
human rights of all persons".
It is clear therefore that the Patten Report
does no more than reflect international standards when it emphasises
the importance of human rights for policing practice.
The fact that the Code of Conduct refers to
both respecting and protecting human dignity implies a positive
expectation on the police. It indicates that they not only have
a responsibility to respect people's human rights, but also a
duty to protect people's rights from infringement by others and
to ensure that people are able to exercise their rights. Human
rights are therefore fundamental both to practical notions of
democratic policing and also to policing in a democratic society.
However, the range of duties and responsibilities
that are central to police practice can create contradictory demandsbetween
facilitating the exercise of people's rights and protecting others'
rights from infringement. As we have discussed, human rights are
rarely absolute; there is normally a need to find a balance between
exercising one's rights without unduly infringing other people's
rights. For basic political rights such as freedom of assembly
or freedom of expression, which are often exercised in public,
it falls on the police to impose a balance between competing rights.
The complexity involved in trying to achieve a balance between
competing rights is further complicated by the fact that the police
also have a primary responsibility to maintain and protect public
4.2 Human Rights and Public Order
A key factor in the ability of people to exercise
their rights is the establishment and maintenance of a degree
of public order that provides the safety and security for people
to express and demonstrate their opinions and ideas on a range
of social and political issues. This is made explicit in Article
28 of the Universal Declaration of Human Rights (1948) which states
that "everyone is entitled to a social and international
order in which the rights and freedoms set forth in this Declaration
can be fully realised."
The police therefore have the responsibility
to protect the basic social conditions that enable people to exercise
and enjoy their fundamental human rights. But the police are in
a potentially contradictory position in so far as they also have
the power and authority to restrict human rights to maintain public
order. They have the power of arrest and the power to use force,
both of which involve a restraint or an imposition on the rights
of others. However, police powers to restrict rights are not unlimited
and they cannot be used indiscriminately. Article 29 of the UDHR
Article 29: UN Universal Declaration on Human
Everyone shall be subject only to such limitations
as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedom of others and
of meeting the just requirements of morality, public order and
the general welfare in a democratic society.
Rights can be restricted to enable other people
to exercise their rights. They can also be restricted to ensure
other people's rights are not unduly curtailed and they can be
restricted to ensure that public order is maintained. But, as
Article 29 clearly states, this must be in accordance with the
The European Convention similarly allows restrictions
to be imposed on freedom of assembly as long as they are both
prescribed by law and "necessary in a democratic society".
However, the Convention provides a wider range of reasons for
which the state, and in practice the police, can restrict the
exercise of human rights. These are: the interests of national
security and public safety, to prevent crime or disorder, for
the protection of health and morals or to protect the rights and
freedoms of others (see Chapter 2.3.8 above).
In practice police forces in a range of European
countries have relied on fear of public disorder as their primary
justification for imposing restrictions on assemblies or protests.
In the majority of cases the European Court has accepted that
the fears expressed by the police over the threat of public disorder
have been reasonable and therefore form an acceptable basis for
imposing restraints on assemblies and protests. But this is by
no means unproblematic because public order is itself an ill-defined
and variable concept. In normal circumstances blocking a main
road with the attendant disruption to traffic and public transport
could constitute a breach of public order but on some occasions
it is considered acceptable. Blocking a road to try to sell people
things would generally not be regarded as acceptable behaviour,
but blocking a road as part of a political protest or a cultural
event is widely accepted as a legitimate part of democratic society.
International understanding and practice diverges
quite considerably on the issue of blocking roads. In the United
States and Canada the police regard it as reasonable to restrict
parades and demonstrations in order to reduce disruption to traffic
and businesses. In contrast the Israeli Supreme Court decided
that people had as much right to use roads for demonstrations
as they did for driving on. The acceptable limits of public order
can and do vary and in practice will be dependent on the location,
the time and the nature of the event or the behaviour.
Although the Parades Commission issues determinations
on which rights and whose rights should have priority with regards
to parades, in many cases it is still left to the police to determine
what action and behaviour is reasonable in the circumstances.
Police officers will be expected to use their discretion to decide
between competing claims of human rights, of unreasonable restrictions
and the needs of public order.
4.3 Policing Freedom of Assembly
We have already considered examples in which
the European Court of Human Rights has addressed the issue of
the limits to the right of freedom of assembly. In this section
we review what the Court has said about the role of the police
in the management of public assemblies and the right to protest.
There has been only one case that has focused in any detail on
the role of the police in facilitating these freedoms. The remainder
of the cases to be considered have looked at the legitimacy of
police intervention to prevent disorder.
In general the European Court has taken a position
which has been sympathetic to the role of the State, and its agents,
the police, in managing public assemblies and protests. The Court
has tended to accept claims made by the authorities about concerns
for public order and the limits of their ability to restrain outbreaks
of violence. It has therefore broadly accepted that restrictions
should be imposed in advance of an event rather than expect the
police to respond to unfolding and unpredictable situations. In
the case of Plattform Arzte für das Leben
v Austria (1988), the European Court noted that the state
has a responsibility to ensure that both the rights of demonstrators
and counter-demonstrators should be met where possible. But is
also noted that the right to counter-demonstrate does not extend
to stopping a lawful assembly and the state has a "positive
obligation" to ensure peaceful demonstrations can take place.
This means that the state has a responsibility to protect demonstrators
from their opponents or from any counter-demonstrations.
However, at the same time the Court also noted
that while the state should take "reasonable and appropriate
measures" to allow lawful assemblies to take place, it cannot
guarantee this absolutely. Instead they stated that the police
must strike a balance between intervention to protect a lawful
assembly and intervention that will provoke some form of violence.
In the Plattform Arzte case the applicants complained that
the police had not done enough to protect their processions and
rally which had been disrupted by protesters who chanted and threw
missiles. The Court noted that while there had been disturbances
these had not stopped the events from being concluded and the
action taken by the police had been reasonable in the circumstances.
4.4 Policing protests
There have been a limited number of cases where
the Court has sought to establish the limits to legitimate protest
against the actions of others and has thus addressed the limits
to police action in managing protests. In Steel and others
v UK (1998) the Court distinguished between legitimate peaceful
protest and protest which involved disrupting the lawful activities
of others. It found that the police had not infringed the rights
of protesters when they arrested them in order to stop them disrupting
a grouse shoot or to prevent them from disrupting building work
on a new motorway. However, the Court found that the police had
infringed the rights of three protesters who were holding a banner
and handing out leaflets objecting to the arms trade outside a
centre hosting a conference on military helicopters.
In none of these instances did the protesters
behave violently but the Court accepted the argument that the
disruptive behaviour at the grouse shoot and road protest had
the potential for provoking violence and it was therefore reasonable
for the police to arrest the parties involved.
A similar line of reasoning was accepted in
the case of Chorrherr v Austria (1993). In this case the
police arrested the applicant who was wearing a placard and handing
out leaflets opposing the arms trade at a military commemoration.
The police claimed that he was causing annoyance to spectators
and his behaviour was threatening to disturb public order. The
applicant on the other hand claimed he was simply exercising his
right to freedom of expression. The Court again found for the
State and agreed that it was "reasonable and appropriate"
for the police to arrest the man in these particular circumstances.
The Court has therefore established that while
there is a right to peaceful protest this does not extend to the
right to provoke others to violence. This implies that those engaging
in protest should be mindful, not only that their own behaviour
remains peaceful but also, that they have a responsibility to
refrain from actions that might produce a violent reaction from
others. Furthermore, the police have the authority to stop a protest
that they believe may produce a violent response.
However, it is also clear that there are limits
to the restrictions that the police can impose on protesters.
This was revealed in the admission by the Metropolitan Police
that they had acted unlawfully when they limited protests by the
Free Tibet Campaign during the visit to England by the Chinese
Premier in October 1999. During the visit the police removed flags
and banners carried by peaceful protesters and used their vans
to block the protesters from the view of the Chinese visitors.
After an internal enquiry the police conceded that their actions
had been unlawful.
This example resonates with the case of Kivenmaa v Finland
(1994) before the UN Human Rights Committee, where the Committee
found a violation of the applicant's freedom of expression after
the police removed a banner she was waving in protest during a
visit of the Kenyan President to Finland. In neither of these
examples was the threat of disorder regarded as significant enough
for the police to restrict the protest.
In another case, G v Federal Republic of
Germany (1989), the European Commission agreed that the police
were within their rights when they arrested the applicant for
blocking a public road during a protest. Once again he was involved
in a peaceful demonstration but the Commission decided that the
protest was causing more disruption than was reasonable and would
normally arise in the exercise of the right of freedom of assembly.
A similar decision over limits of the right to disrupt traffic
during a protest was taken in case of F v Austria (1989)
and in the case of H v Austria (1989) the Commission decided
that the police were acting reasonably in dispersing an assembly
that was causing considerable obstruction to pedestrian traffic.
In each of these cases the decision of the Commission
seems in part to have been determined by the length of the protests.
In the case of G the report suggests the protesters had
blocked the road a number of times during the day for a short
period; in F the applicant had intended to hold a static
protest for a full day; and in the H case the protest had
continued for over a week and was growing in scale and level of
disruption. In each of these cases the protest and the associated
disruption had been permitted to continue for some time before
the police intervened.
In all three cases the Commission effectively
agreed that it was the responsibility of the local police to decide
what was an acceptable level of disruption to other people and
when it was "necessary in a democratic society" to disperse
the protest or if necessary to arrest the participants.
A further issue raised by the Chorherr and Steel
cases was that the Court also ruled that the police had not acted
in a disproportionate manner in detaining the applicants for some
considerable time after their arrest. In the case of Steel (who
disrupted the grouse shoot) the applicant was detained for 44
hours because she refused to be bound over to keep the peace,
while Chorrherr and the anti-roads protester, in the Steel case,
were detained for three and a half hours and 17 hours respectively.
The State argued successfully that in each case the extended period
of detention was necessary to prevent the applicants from resuming
their protests and causing further breaches of the peace.
It is clear therefore, that the police have
a responsibility to facilitate peaceful protest but, also some
considerable latitude to determine both what is reasonable and
how far they can impose restrictions to prevent disorder.
4.5 Use of Force by Police Officers
The general principles governing the use of
force by police officers are addressed in a range of relevant
instruments. Article 3 of the UN Code of Conduct states that law
enforcement officials may use force "only when strictly necessary
and to the extent required for the performance of their duty"
and that this should be regarded as an exceptional measure and
proportionate to the circumstances. The Council of Europe Declaration
on the Police states in Article 12 that police officers are prohibited
from using more force than is reasonable. This issue is dealt
with in more detail in another United Nations instrument entitled
Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials (1990). This contains 26 articles relating to the use
of force and firearms which elaborate on the provisions contained
in the legally binding conventions. Principles 12-14 of this document
relate to "Policing Unlawful Assemblies" and these state:
Basic Principles on the Use of Force and Firearms
by Law Enforcement Officials
12. As everyone is allowed to participate
in lawful and peaceful assemblies...Governments and law enforcement
agencies and officials shall recognise that force and firearms
may be used only in accordance with principles 13 and 14.
13. In the dispersal of assemblies that
are unlawful but non-violent, law enforcement officials shall
avoid the use of force or, where that is not practicable, shall
restrict such force to the minimum extent necessary.
14. In the dispersal of violent assemblies,
law enforcement officials may use firearms only when less dangerous
means are not practicable and only to the minimum extent necessary.
Law enforcement officials shall not use firearms in such cases
except under the conditions stipulated in principle 9.
We will consider the issue of the use of lethal
force in the following section. Here we will concentrate on issues
related to the non-lethal use of force in the policing of assemblies.
The Principles distinguish between violent and non-violent assemblies
and also between levels of policing such events that range from
avoidance of the use of force through use of minimal force to
the use of firearms and lethal force. While the texts are clear
that use of force should be avoided wherever possible, force can
be used in certain situations. However, it should always be an
exceptional practice rather than a norm. But police officers have
to assess the appropriateness, the proportionality and the necessity
of the use of force within the context of the specific assembly
or protest. This is particularly pertinent in situations where
they are policing or attempting to disperse an illegal but non-violent
protest and where there is a temptation to use some degree of
force to move people who are engaged in passive disobedience.
The cases referred to in the previous section
are all examples where the police used peaceful or non-violent
means to constrain a protest or to arrest individuals. But in
recent years there have been a number of occasions when the police
have resorted to the use of force in situations that suggest that
the Principles might have been contravened. Several major assemblies
have provoked an aggressive or violent responses from the police
including anti-capitalist protests in London in June 1999, the
protests against the World Trade Organisation in Seattle in November
1999, in London in May 2000 and in Prague in October 2000, protests
against the World Bank in Washington DC in April 2000, and in
response to football hooliganism in Belgium during Euro 2000 in
June 2000. In many of these situations there have been accusations
that the violence of protesters or supporters was as much in response
to police action to disperse peaceful protests, as the police
action was in response to violence by the protesters.
There have also been a number of occasions in
relation to the recent disputes over parades when the RUC has
resorted to the use of force to control or constrain crowd violence,
to disperse protests or to enable lawful parades to take place.
There have been other occasions when the police have used force
to disperse unlawful but non-violent protest demonstrations during
the same period, for example during the Tour of the North in June
1996, on the Garvaghy Road in July 1997 and on the Ormeau Road
in August 1999. In each of these situations there have been accusations
that the force used to remove non-violent protesters from blocking
roads was disproportionate to the activities of the protesters.
While concerns over the policing of such protests have been raised
by groups such as the Committee on Administration of Justice and
Human Rights Watch, the various Courts of Human Rights have yet
to be asked to respond to accusations of the disproportionate
use of force by the police in controlling riots or violent assemblies.
However, the European Court of Human Rights has been asked to
address issues related to the use of force in the context of Article
3 which provides that "No one shall be subjected to torture
or to inhuman or degrading treatment or punishment".
In both Tomasi v France (1992) and Ribitsch
v Austria (1995) the Court found for the applicants after
they had been subjected to physical abuse which amounted to inhuman
and degrading treatment while in police custody. In the Ribitsch
judgement the court stated that "in respect of a person deprived
of his liberty, any recourse to physical force which has not been
made strictly necessary by his own conduct diminishes human dignity
and is in principle an infringement of the right set forth in
Article 3 of the Convention" (para 38). While in A v United
Kingdom (1998) the Court found that physical abuse of a child
by a step-parent amounted to a breach of Article 3. The Court
also noted that while ill-treatment must attain a minimum level
of severity if it is to fall within the scope of this Article,
that minimum level "is relative: it all depends on the circumstances
of the case, such as the nature and context of the treatment,
its duration, its physical and mental effects and, in some instances,
the sex, age and state of health of the victim" (para 20).
Although these and other similar cases have been related to issues
of ill treatment during detention or through the use of corporal
punishment, there may equally be a relevance in relation to cases
where the police use force to disperse peaceful assemblies or
to arrest people engaged in some form of protest.
4.6 Right to Life and the Use of Force
The various texts and instruments set down clear
limits to the use of force but they also make it clear that the
policing of assemblies, and violent assemblies in particular,
is one situation where force and firearms might well be used,
albeit within prescribed circumstances. The implications are that
the use of such force should be a last resort in policing crowds
and that such force should be the minimum necessary to exert control
and to assist the restoration of order.
Principle 9 of the UN Basic Principles on the
Use of Force and Firearms limits the use of firearms to self-defence,
defence of others against imminent threat of death or serious
injury, to prevent a particularly serious crime involving threat
to life and to facilitate the arrest, or to prevent the escape
of someone presenting such dangers. It also states that firearms
may only be used when less extreme means are insufficient. Finally
it states that intentional lethal force may only be used when
strictly unavoidable in order to protect life.
Each of the major human rights treaties affirms
that the right to life is a fundamental human right.
The Universal Declaration (Article
3) states "Everyone has the right to life, liberty and security
of the person".
The United Nations International
Covenant on Civil and Political Rights goes further by stating
(in Article 6) that "every human being has an inherent right
to life. This right shall be protected by law. No one shall arbitrarily
be deprived of his life".
The European Convention expresses
similar sentiments. Article 2 states that "Everyone's right
to life shall be protected by law".
However, the European Convention also makes
it clear that right to life is not unconditional. In a secondary
clause it sets down a limited range of situations in which the
deprivation of life will not be regarded as a breach of the right
to life, provided that the use of force is "no more than
absolutely necessary". The three situations are:
in the defence of any person from
to effect a lawful arrest or to prevent
the escape of a person who has been lawfully detained, and
for the purpose of quelling a riot
This does not mean that it is legitimate for
the authorities to intentionally kill someone in these circumstances,
but rather that the use of force, which results in death in these
limited contexts, will not be regarded as a breach of the right
to life. But it is also clear that the police may use lethal force
providing it is "absolutely necessary" and such force
will only be determined as absolutely necessary if it is both
proportionate and reasonable in the specific circumstances.
The parameters governing the use of force have
been addressed in the small number of cases before the European
Court relating to the killing of individuals by the State authorities,
and which have direct relevance to the matter of managing public
disorder. The most obviously connected case is Stewart v UK (1984).
This was related to the death of a 13 year-old boy, Brian Stewart,
who was killed by a plastic baton round fired by a soldier in
Belfast in 1976. Local witnesses claimed the soldiers fired the
plastic bullet in response to being stoned by a small group of
young children. The soldiers claimed that they were being attacked
by a crowd of about 150 rioters and fired a plastic bullet as
a warning. When this had no effect a second bullet was fired,
but the soldier claimed he was hit by two missiles as he took
aim and fired and the baton round hit Brian Stewart by accident.
In making its decision the Commission accepted
the version of events given by the soldiers rather than the one
given by local people. They also noted that the use of baton rounds
was controversial and acknowledged that it was a dangerous weapon.
However, they felt that in the circumstances prevailing in Northern
Ireland at the time, in which the soldiers might well face the
threat of a sniper attack, the use of plastic bullets was absolutely
necessary to quell the riot.
In spite of this judgement both the UN Committee
Against Torture and the Committee on the Rights of the Child have
expressed their concern about the use of plastic baton rounds
as an appropriate weapon for the control of public order. Although
plastic bullets continue to be used in Northern Ireland, the Patten
Report recommended that "an acceptable, effective and less
potentially lethal alternative" be sought and that a wider
range of equipment be provided for police officers to reduce the
current reliance on plastic baton rounds.
In the Stewart case, and in two other
prominent "right to life" cases McCann and others
v UK (1995) (over the killing in Gibraltar of three members
of the IRA by the SAS) and Andronicou and Constantinou v Cyprus
(1997) (where police killed an armed man and his girlfriend
whom he was holding hostage in the course of trying to free her),
the Court has taken the side of the State and accepted the necessity
of the use of lethal force where police officers or soldiers have
claimed that they feared for their own lives. In a similar situation
in the USA, four New York Police Department Officers were acquitted
of murder over the killing of Amadou Diallo, whom they shot because
they claimed they thought he was reaching for a gun. The Court
has thus tended to prioritise the need to address the fears of
operational law enforcement officials in many of the "right
to life" cases.
At the same time the Court has been critical
of the planning that has gone on behind some of these operations
and the failure of the police to take action that could have reduced
or prevented the need to use force. In McCann it was accepted
that the State could have neutralised the IRA operation earlier
and reduced the likelihood of the need to use lethal force. In
Andronicou there was criticism of the failure to achieve a mediated
outcome in the hostage situation and in another recent case, Ergi
v Turkey (1998) the Court was again critical of the planning of
a security operation which left an innocent civilian dead.
It is therefore clear the police do have the
authority to use proportionate and reasonable force in specific
circumstances. However, a recent case has also re-affirmed that
the state does have a positive obligation to protect life. In
Osman v United Kingdom (1998) the Court stated that: "Article
2:1 enjoins the State not only to refrain from the intentional
and unlawful taking of life, but also to take appropriate steps
to safeguard the lives of those within its jurisdiction"
the judgement went on to say that "it is sufficient for an
applicant to show that the authorities did not do all that could
be reasonably expected of them to avoid a real and immediate risk
to life of which they have or ought to have knowledge".
This might well mean that the preparation and planning of policing
operations is brought under further consideration in cases related
to the use of lethal force. But, at the same time, it might well
also raise issues about such matters as the quality of the training
of police officers in non-confrontational conflict management
techniques and in alternatives to the use of force.
Thus, although the European Convention permits
the use of force by law enforcement officials, the Court has indicated
a greater willingness to scrutinise the wider context of the planning
and preparations of operations where lethal force is used. While
the fears and judgements of operational officers may continue
to be taken at face value in contentious situations involving
the use of lethal force, these developments suggest that there
will be an ever greater responsibility on police agencies to train
their officers and to prepare and plan operations so as to reduce
the possibility of the need to rely on force to resolve problematic
1. The police have a dual role to protect
people's rights and to adjudicate between those rights. They therefore
have the responsibility to facilitate the exercise of human rights
and the authority to restrict such practice. This is particularly
pertinent with regard to issues related to freedom of assembly
and maintaining public order.
2. The European Court of Human Rights has
confirmed that the state has a positive obligation to enable peaceful
demonstrations to take place and should take reasonable and appropriate
measures to facilitate this. They also have to balance between
protecting a lawful assembly and provoking violence themselves
in trying to maintain order.
3. The police have the authority to prevent
or to disperse any assemblies that might create unreasonable disruption,
that threatens to disturb public order or that have the potential
to provoke violence from others because it interferes with their
rights and freedoms.
4. In dispersing assemblies the police should
always attempt to use peaceful means in the first instance. The
police do have the right to use force to disperse assemblies but
such force must always be both proportionate and necessary in
the circumstances. Police should only use firearms to disperse
violent demonstrations in so far as it is necessary for self defence,
to protect others from threat of death or serious injury, or to
facilitate the arrest or prevent the escape of someone presenting
5. The police also have a positive obligation
to protect life and they have a responsibility to ensure that
all operations are prepared and planned with this in mind. Preparation
may extend to the training given and equipment supplied to police
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