National security – Consultation – Defendant deciding to deploy ground-to-air missiles on roof of residential tower block as part of security plan for protection of 2012 Olympic Games from terrorist attack – Claimant residents’ association seeking permission for judicial review of decision – Claimant alleging decision unlawful by reason of failure to consult residents and breach of human rights – Whether having arguable case – Whether claim brought promptly – Permission refused
The claimant was a residents’ association representing occupants of Fred Wigg Tower, a 15-storey residential tower block in Leytonstone, east London. The defendant decided to site ground-to-air missiles on the roof of the block as part of a comprehensive security plan to protect the 2012 Olympic Games from terrorist attack. The plan involved concentric lines of defence with two missile sites at the centre. The missile system did not depend on high explosives but utilised kinetic energy, relying on speed and mass on impact.
The tower block was chosen for the missile installation, following a survey of potential sites, because of its proximity to the Olympic park and its unimpeded 360° views; no other site was considered capable of performing the same function. The landlord of the tower granted a lease to the defendant for the purpose. There was no consultation with residents or members of the public, although a detailed leaflet was distributed to residents in late April 2012, giving detailed information about the missile installation and the reasons for it; the leaflet indicated that the installation would not generate noise and that, rather than making the tower a potential target for terrorists, it would improve safety because of the presence of military personnel. The security plan was confirmed after a live test exercise. A drop-in session was subsequently held at a local school to provide information to residents.
In late June 2012, shortly before the missiles were due to be deployed, the claimant applied to the court for permission to seek judicial review of the decision to site the missiles on the roof. It contended that, inter alia: (i) the residents had not been adequately consulted; and (ii) their rights under Article 8 of the European Convention on Human Rights had been breached. The claimant argued that the defendant should use a specially constructed gantry tower in place of the tower block roof.
Held: The application for permission was dismissed.
Decisions relating to national security and the armed forces were matters with the discretion of the Crown, with which the court should not interfere unless the relevant power was exceeded or the decision was not made in good faith. The proposed deployment of the missiles fell within the relevant discretionary power and the decision had been made in good faith. The security plan of which the missile deployment formed part had been found to be necessary to protect the Olympic Games from attack; that plan had been the subject of conscientious assessment and had been approved at the highest level. Any fears that residents might have regarding safety or disruption were objectively unfounded. The residents’ suggested alternative of a specially constructed gantry was unfeasible. The defendant had been under no statutory duty to consult and no such duty had arisen by reason of any promise to consult or past practice of consultation in that area. No manifest unfairness arose from a failure to consult on matters of military deployment and national security. Moreover, the defendant’s voluntary engagement with the community and residents had been immaculate.
The government had a duty, under Article 2 of the Convention, to defend the realm and national security including by protecting the public from terrorist attack. That duty provided a short answer to the claimant’s Article 8 point. The missile deployment was intended to protect the public from the risk of an attack that might lead to huge loss of life. Any interference with the residents’ Article 8 rights was overwhelmingly proportionate to the legitimate purpose of national security and public safety. The missile installation would be unobtrusive, would have no impact on the ability of the residents to use their property and would be limited in duration. Accordingly, the claimant’s grounds of challenge were unarguable in law and fact.
Permission for judicial review should also be refused on the ground of delay. Judicial review applicants were required to act promptly. The residents had known the relevant facts once they received the leaflet in April. Despite that, they had not brought their claim until two months later, and less than two weeks before the missiles were due to be deployed. That failure to act promptly was seriously prejudicial to the defendant and to the public in arranging appropriate security measures for the Olympics.
Marc Willers and Owen Greenhall (instructed by Howe & Co) appeared for the claimant; David Forsdick and Jacqueline Lean (instructed by the Treasury Solicitor) appeared for the defendant.
Sally Dobson, barrister
