TWO Stormont ministers last night failed in a High Court bid to have police forced to help in the removal of a controversial loyalist bonfire in north Belfast.
The action brought by infrastructure minister Nichola Mallon and communities minister Deirdre Hargey was dismissed after a judge sitting in an earlier emergency case refused to direct PSNI officers to intervene at the Tigers 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 resident mounted a challenge to the legality of the PSNI decision, contending 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 and that the "substance of this case is to do with the inhumane way in which my client and her neighbours have had to live".
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 stated 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.
"Police have reliable intelligence that petrol bombs have been assembled in that locality in anticipation of a police-supported removal operation," he said.
Other, untested, intelligence indicated a potential ballistics threat to officers and contractors in the Tigers Bay area.
"A ballistics threat is an assessment that firearms will be used," counsel submitted.
He also contended that police were limited in what action they could take in a highly volatile situation where women and children are present.
The New Lodge resident's application for an order against police reached court before similar proceedings taken by the Stormont ministers.
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, he 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."
