High Court bid to force PSNI to intervene over loyalist bonfire fails

The loyalist bonfire in Tiger's Bay is close to the nationalist New Lodge. Credit: UTV

Two Stormont ministers have failed in a High Court bid to have the police forced to help in the removal of a controversial loyalist bonfire in north Belfast.

The action brought by Nichola Mallon and Deirdre Hargey was dismissed after a judge sitting in an earlier emergency case refused to direct PSNI officers to intervene at the Tiger’s Bay site.

Separate proceedings had been issued on behalf of a woman whose home in the nationalist New Lodge is just across a peace line from the bonfire location.

Contractors were on standby to dismantle the structure, but police declined to offer assistance due to the risk of disorder.

Lawyers for the New Lodge resident mounted a challenge to the legality of the PSNI decision, contending that it was based on flawed reasoning.

Barrister Sean Devine told the court: "What the police have decided is that one side of the community represents a greater threat than the other, therefore their wishes and demands are going to hold sway."

He stressed the case was not just about getting the bonfire shifted.

"The substance of this case is to do with the inhumane way in which my client and her neighbours have had to live for the last month or so while this material has accumulated... all through the night when these individuals were hurling missiles at their homes, playing music and very high volumes and triumphalist loyalist songs," he said.

"These individuals are allowed to effectively blackmail the rest of civic society."

Mr Devine added: "A small number of individuals who don't have any mandate whatsoever are allowed to override the human rights of my client and departments at ministerial level - democratically elected officials have decided this material should be removed from their property."

But Tony McGleenan QC, for the Chief Constable, insisted there was no legal basis for the court to intervene on operational policing issues.

An expert assessment had been made that clearing the site would create an increased risk to life, disorder and damage to property, the court heard.

Mr McGleenan disclosed details of an updated intelligence assessment provided to the ministers.

The prospect of protests, welding shut gates at the site and changing the padlocks was also cited.

"The ministers and the applicant seek a mandatory order from the court, directing the police to take action they say will give rise to a real and immediate risk to life and personal injury for others," Mr McGleenan said.

He also contended that police were limited in what action they could take in a highly volatile situation where women and children are present.

"They are positioned in and around a bonfire site and at height on the structure," he said.

"The contractors, if they move in to remove that material, will not be able to act until the children have been removed.

"Police have very limited tactical options in those circumstances. That is a matter of both law and experience."

The New Lodge resident's application for an order against police reached court before similar proceedings taken by Mrs Mallon, the Infrastructure Minister, and Ms Hargey, the Communities Minister.

Neasa Murnaghan QC, representing both departments, argued: "Effectively the presence of women and children are permitting a human shield.

"It does seem difficult to accept some type of creative policing could not be approached to permit the clearance, rather than adopting the idea that the lesser of two evils is to permit this type of unlawful activity to continue on the basis there may be a more violent reaction than the horrendous situation that currently exists."

Following submissions Mr Justice Horner condemned those responsible for any attacks on homes in the New Lodge.

However, the judge refused to make an interim order directing police to support the removal of the bonfire.

"I'm satisfied that the greater risk of injustice is granting interim relief," he said.

A decision on the legal merits of the challenge will be given at a later stage.

Following the ruling his judicial colleague Mrs Justice Keegan sat to consider the two ministers' case.

She indicated that the earlier determination had rendered their application for an emergency order "redundant".

Mr McGleenan urged her to throw out that challenge, stressing: "We are burning public money tonight on this."

With no new substantive legal grounds raised, Mrs Justice Keegan refused the ministers' application for leave to seek a judicial review.

She said: "I don't consider this court can keep alive another set of proceedings on the same issues."

Ms Hargey issued a statement on Friday evening in response, outlining her disappointment at the ruling.

"It remains my view that this illegal bonfire is not appropriate at this interface location," she said.

"Local residents have the right to live free from attacks on their homes and free from intimidation and antisocial behaviour.

"In 2021, those people living at community interfaces should not have to tolerate illegal bonfires which threaten their properties and safety.

"The police and statutory agencies have a duty of care towards residents occupying nearby homes."

In a PSNI statement, Assistant Chief Constable Alan Todd said: "The Police Service of Northern Ireland has been working with a range of partners and stakeholders over a number of months to ensure a peaceful summer, and that will continue over the next number of days.

"We would urge those within local communities to remain calm during the coming days."