NI High Court: Police decision not to dismantle dangerous bonfire not unlawful
The High Court has dismissed an application to hold police responsible for dismantling a dangerous bonfire, finding that the threat of “widespread unrest” outweighed the effects of the anti-social and unlawful behaviour.
The emergency application was brought by AB, who lives in the vicinity of a bonfire which had been constructed on the peace line at Adam Street, Belfast, and was heard on 8 July 2021.
AB sought an order of mandamus and/or an injunction compelling the PSNI to remove the bonfire materials prior to the 11th July night bonfire.
Mr Justice Mark Horner rejected the application for interim relief on an ex tempore basis. However, he provided a written judgment which, he hoped, would provide some guidance as to how the recurring problem of bonfires in general in Northern Ireland, and bonfires on the peace line, in particular, might be resolved.
A substantial bonfire, consisting mostly of tyres and pallets, was constructed at the Adam Street peace interface on property which belonged to the Department for Communities (DfC) and which was adjacent to land owned by the Department for Infrastructure (DfI). It was intended to celebrate the Twelfth of July parade held each year to celebrate King William’s triumph at the battle of the Boyne.
AB complained that the bonfire brought with it increased anti-social and unlawful behaviour, including bricks being thrown at nearby properties and golf balls being hit from the bonfire into back gardens.
The people constructing and guarding the bonfire also played loud music late at night, often of an upsetting nature, which kept the neighbours awake.
Further, those living in houses adjacent to the bonfire had no option but to ensure that their houses were airtight if they did not want to inhale noxious fumes which would inevitably be given off by burning rubber tyres.
The thrust of the application was against the police and their unwillingness to act against those responsible for constructing the bonfire and to ensure that the materials to be used for the bonfire were removed from the site before they could be ignited.
The Order 53 Statement also included a claim for a declaration that the respondents should not have allowed bonfire material to accumulate and that the ongoing failure to remove that material was unlawful.
The police’s stance
By letter of 7 July 2021, Assistant Chief Constable Alan Todd set the reasons why the police should not and would not intervene:
the bonfire was constantly occupied by children in or on the pyre and the police considered that there would be insuperable difficulty in removing them safely when trying to dismantle the bonfire;
intelligence suggested that police intervention would be resisted by the local community and in particular by women and children. The use of force would be required, resulting in the risk of casualties; and
there was intelligence that a significant number of petrol bombs had been assembled and it was likely the use of force by the police would result in these being thrown at the police and any contractors used by the police. There was also untested intelligence that there was a risk of firearms being discharged. In any event the likelihood of significant disorder was high. This was a highly charged situation ready to ignite.
AB relied on ECHR Article 8 and section 32 of the Police Act (Northern Ireland) 2000 which provides:
“(1) It shall be the general duty of police officers –
(a) to protect life and property;
(b) to preserve order;
(c) to prevent the commission of offences;
(d) when an offence has been committed, to take measures to bring the offender to justice.”
AB said that the police were obliged to dismantle the bonfire in order to protect property and to prevent the commission of offences. Police said that the dismantling of the bonfire would have provoked widespread unrest, resulting in the commission of offences and endangered both life and property.
Citing Osman v United Kingdom  29 EHRR 245 at , the judge found that: “The applicant has to show that the authorities failed to do all that was reasonably to be expected of them to avoid the risk to life. The standard accordingly is based on reasonableness”.
The judge also considered the circumstances faced by the police, which in this case included the welfare of children, and “the rights of those children caught up in a disorder which was not of their making had to be given due consideration”. Their safety was a paramount consideration for the police.
The court was also willing to accept that the police hold particular expertise and knowledge of handling situations fraught with the risk of widespread civil disorder, and found that a degree of discretionary judgment must be allowed them.
The court ultimately found that AB was seeking, through the courts, to force the police’s hand, in a situation where AB had no experience of what the consequences of taking such a course of action was likely to be.
The complaints by AB that the police should have acted more robustly, were “quite insufficient to establish that the course adopted by the police was either misguided or unreasonable or unlawful.”
However, the court also recognised that by the time of this decision, the bonfire had already long extinguished. Both sides accepted that this judgment had become merely academic, once the court refused interim relief.
Mr Justice Horner noted that: “While the court in many circumstances will refuse to provide a judgment on what have become theoretical issues, there are cases, and this is one, in which it is appropriate for the court to give some direction to the decision makers and so help them to exercise their powers lawfully in the future”.
The way forward
Mr Justice Horner outlined several clear ground rules which should be considered by communities for the future construction of bonfires, outlined below.
There should be agreements as to its size, its location and its composition, etc.
The ground rules should be agreed with responsible, representative members of whichever community is going to build the bonfire and they should accept responsibility for those rules being observed.
A failure to agree reasonable ground rules and/or to put forward responsible citizens as representatives of the local community may result in action being taken at the outset to prevent a bonfire from being constructed on public land at all.
If the ground rules are agreed but ignored, then those responsible citizens who accepted responsibility for their enforcement should be held to account.
If there are no responsible representatives willing to come forward to guarantee observance of the agreed ground rules, then that sends out a very clear message as to what is likely to happen.
If the ground rules are not agreed and /or there are no responsible citizens prepared to come forward then the Departments can take the appropriate steps to prevent the bonfires being built at the outset and the police will no doubt have a role to play in the enforcement of any orders the courts may make.
The judge found that, ultimately, “police were placed in an intolerable situation … this bonfire was being used by some to intimidate and terrorise those residents in the adjacent properties in the New Lodge area”.
However, the court did not consider that it was arguable that the police decision to refuse to dismantle the bonfire once it had been constructed was unlawful. Accordingly, leave to apply for judicial review was refused.