Neutral Citation no. NIQB 30
Judgment: approved by the Court for handing down
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
IN THE MATTER OF AN APPLICATION BY ANN-MARIE McCALLION, LORRAINE McCOLGAN AND
ANNE McNEILL FOR JUDICIAL REVIEW
By this application for judicial review the three applicants, who are all widows
of men who were unlawfully killed, challenge the decisions of a Minister of
State, taken on behalf of the Secretary of State for Northern Ireland, not to
exercise his discretion under Article 10(2) of the Criminal Injuries
(Compensation) (Northern Ireland) Order 1988.
Article 10(2) of the 1988
Order empowers the Secretary of State for Northern Ireland, (if he considers it
in the public interest to do so), to pay to a person ineligible by reason of
Article 5(9), such sum as would not exceed the compensation that he might
otherwise have received. Article 5(9) of the Order provides that no
compensation shall be paid in respect of a criminal injury to any person who has
been a member of an unlawful association or who has been engaged in the
commission, preparation or instigation of acts of terrorism.
It is alleged that the
husbands of the applicants had been engaged in acts of terrorism and in one case
had been a member of an unlawful association. On that account, the
applicants were refused compensation. They then applied to the Secretary
of State that he should exercise his powers under Article 10(2) and that led to
the decisions that are under challenge in these proceedings.
1. Mrs McCallion
On 31 December 1998 some
short time after midnight, Peter McCallion, a forty-year-old man, was involved
in a fight with another man at Racecourse Road, Londonderry. In the course
of the fight, Mr McCallion suffered injuries that caused his death. He
left a widow, the first applicant, and four children. Three of the
children had been born to Mrs McCallion before her marriage to the deceased but
he had treated two of these as children of the family. Mr and Mrs
McCallion were the natural parents of the fourth and youngest child.
By application dated 23
February 1999, Mrs McCallion applied for compensation under the 1988 Order for
herself and her children. This was refused on 27 April 1999. It was
stated that the Secretary of State had refused compensation because of the
provisions of Article 5(9). Mrs McCallion did not appeal this decision but
her solicitors then applied to the Secretary of State to exercise his discretion
under Article 10(2) to order that compensation be paid to Mrs McCallion and her
The Minister of State who
took the decision on behalf of the Secretary of State in all three cases was
Adam Ingram MP. He received a submission on Mrs McCallion's application
from the then Chief Executive of the Compensation Agency, D A Stanley. In
the submission Mr Stanley stated that there had been no suggestion that the
attack on Mr McCallion had been sectarian; rather it appeared to be a case of
"name calling which got out of hand". Mr Stanley then described Mr
McCallion's earlier criminal activity in this way: -
"In 1978 Mr McCallion was a member of PIRA in Londonderry and in August of that
year was sent out to ambush an Army patrol. The attack took place on 28 August
when soldiers of the Queen's Regiment were fired upon in Racecourse Road in
Londonderry. As a result of the attack one soldier was wounded and later was
awarded compensation for the criminal injury he received. Mr McCallion was
arrested and convicted of attempted murder of the soldier, the possession of a
firearm and ammunition with intent to endanger life and property (two counts)
and belonging to an illegal organisation. He was jailed for 18 years and for
15, 12 and 5 to run concurrently."
Mr Stanley informed the Minister that there was no evidence that Mr McCallion
had maintained a connection with any illegal organisation after his release from
prison in 1998. He suggested that there was nothing to show that he was
"endeavouring to give anything back into the community, outside his home and
family". Mr Stanley further suggested that the crimes of which Mr
McCallion had been convicted were "among the most serious", that his actions
almost led to the death of a young soldier and were clearly pre-meditated.
He recommended that the Minister should conclude that it was not in the public
interest that an award be made and that he should not exercise his discretion in
favour of the applicant. The Minister accepted that recommendation.
2. Mrs McColgan
On 24 January 1998, John
McColgan, a taxi driver, collected a passenger on Andersonstown Road, Belfast.
Ten minutes later he was discovered lying dead on the road on Hannahstown Hill.
He had been shot five times in the head. The second applicant is Mr
McColgan's widow. They have three children aged between 6 and 15 years.
Mrs McColgan also applied for compensation but this was refused because of
Article 5(9) of the Order. She then applied to the Secretary of State that
he should exercise his discretion under Article 10(2). This was also
Mr McColgan had been
convicted of riotous behaviour in August 1983. For this offence he was
ordered to be detained in a Young Offenders Centre for a period of one month but
that sentence was suspended for two years. In March 1987 he was convicted
of possessing explosives with intent to endanger life or property and possession
of ammunition with intent. For these offences he was sentenced to two
years imprisonment suspended for two years.
In his submission to the
Minister in Mr McColgan's case, Mr Stanley observed that the police believed
that Mr McColgan was the victim of a sectarian killing carried out by the
Loyalist Volunteer Force. It was believed that he had been targeted
"probably because he had INLA traces". Mr Stanley also commented on the
claim made by the applicant's solicitors that Mr McColgan had been a devoted
father to his children and that he was making a positive contribution to the
community by creating a stable family home. Mr Stanley suggested that
there was nothing to show that he was endeavouring to put anything back into the
community outside his home and family. He made a similar recommendation to
that which he had made in Mrs McCallion's case and the Minister once again
accepted that recommendation.
3. Mrs McNeill
On the evening of 17 April
1998 Mark McNeill was alone in his car which had been parked at the rear of a
taxi office in Shaw's Road, Belfast when a number of men approached the car and
forced him from the vehicle. He was then shot and fatally wounded.
He left a widow, the third applicant, and five children ranging in age from nine
years to sixteen. He had been separated from Mrs McNeill since 1993 but
kept in regular contact with his family. Mrs McNeill also applied for
compensation and when this was refused under Article 5(9) she applied to the
Secretary of State that he should exercise his discretion under Article 10(2).
Again this has been refused.
The only relevant conviction
in Mr McNeill's case was in March 1985 when he was convicted of possession of a
firearm and ammunition in suspicious circumstances for which he was sentenced to
be detained in a Young Offenders Centre for four months.
In his submission to the
Minister, Mr Stanley stated that, despite the fact that Mr McNeill had no
further terrorist convictions, police believed that Mr McNeill was a
"sympathiser and that his death was probably due to a feud amongst republican
Although the applications to
the Secretary of State were made at different times, the submission made in each
case by Mr Stanley to the Minister was dated 27 March 2000 and the decision not
to exercise his discretion under Article 10(2) in each case was likewise made on
the same day.
The statutory framework
1988 Order (and its predecessors) provided for a scheme of compensation to be
paid to those who were the victims of a criminal injury. A 'criminal
injury' is defined in Article 2(2) as meaning: -
"…an injury (including an injury which results in death) directly attributable
(a) a violent offence"
A violent offence includes "any offence which was intended to cause death [or]
personal injury" and "any offence committed by causing the death or injury to
any person, … where the state of mind of the person committing the offence
consisted of recklessness as whether he caused death [or] personal injury".
Article 3 (1) of the Order provides: -
"Subject to and in accordance with the provisions of this Order, where a person
sustains a criminal injury in Northern Ireland after the coming into operation
of this Order the Secretary of State shall, on application made to him, pay
Article 5(9) of the Order provides: -
"… no compensation shall be paid to, or in respect of a criminal injury to, any
(a) who has been a member of an unlawful association at any time whatsoever,
or is such a member; or
(b) who has been engaged in the commission, preparation or instigation of acts
of terrorism at any time whatsoever, or is so engaged."
Terrorism is defined in Article 2(2) as "the use of violence for political ends
and includes any use of violence for the purpose of putting the public or any
section of the public in fear".
Article 10(2) provides: -
"Where, but for Article 5(9), compensation would be payable to any person, the
Secretary of State may, if he considers it to be in the public interest to do
so, pay to him such sum as does not exceed the amount of that compensation."
I had occasion to consider this provision in Re Creighton's Application
(2001) unreported and said there: -
"It is to be noted that the Secretary of State may only make such a payment when
he considers it in the public interest to do so. Even then he is not obliged to
make the payment, although it is difficult to envisage circumstances in which,
having decided that it was in the public interest that payment should be made,
the Secretary of State would withhold that payment."
It is clear that Parliament intended that there should be no appeal from the
Secretary of State's decision – Article 16 (which confines appeals to
determinations notified to an applicant under Article 12(1) or (2)).
The Bloomfield Report
At the request of the
government, Sir Kenneth Bloomfield conducted a review that included an
examination of criminal injury compensation in Northern Ireland. In his
report (Report of the Review of Criminal Injuries in Northern Ireland: June
1999) Sir Kenneth set out the factors which, he had been informed, were
generally taken into account by the Secretary of State when deciding whether to
exercise his discretion under Article 10(2) of the Order. These appear at
paragraph 3.38 of the report as follows: -
"?the seriousness of the terrorist conviction(s) and the extent of
involvement, if any, with an unlawful association;
?the offender's age at the time the offence(s) were committed and the length of
time which has elapsed since the offence(s) were committed;
?his subsequent pattern of behaviour as suggested by his criminal record and
information supplied by the police;
?his subsequent pattern of behaviour as indicated by any positive contribution
to the welfare of the community;
? whether criminal injuries or criminal damage compensation was paid in respect
of any offence committed by the offender and, if so, its amount;
? whether there was any connection between the offender's criminal behaviour
and the injuries or damage subsequently sustained;
? the circumstances which gave rise to the applicant's claim for compensation;
?in those cases where payment is to be made, the amount should be appropriate to
the particular circumstances of the case."
In affidavits filed on behalf of the respondent in the present case,
Frank Brannigan, acting Chief Executive of the Compensation Agency, confirmed
that these were the criteria that had been taken into account by the Minister in
deciding whether to exercise his discretion under Article 10(2) in relation to
the applications of Mrs McCallion, Mrs McColgan and Mrs McNeill.
The judicial review application
The grounds on which the
application for judicial review was made may be summarised as follows: -
1. The decision was procedurally unfair in that
the applicants were not given information in advance of the Minister's decision
about the material on which he would base his decision; they were unaware of the
Bloomfield criteria and were deprived of the opportunity of making
representations. It was also claimed that they were not given reasons for
the decision after it had been made.
2. The Minister failed to take into account a
number of material factors. He was not provided with any analysis of the
seriousness of the various offences of which the deceased had been convicted.
3. The Minister took into account a number of
irrelevant considerations including, in the case of Mr McNeill, that he was a
4. The decision violated the applicants'
Convention rights, in particular, under Articles 2, 8 and 14.
5. It was contrary to the United Nations
Convention on the Rights of the Child.
6. The decision was irrational.
(i) Lack of information in advance of the decision
The input of the applicants
in the decision-making process was confined to a series of letters written on
their behalf by their solicitors, Madden & Finucane. In the case of Mrs
McCallion and Mrs McNeill, the Compensation Agency had invited the applicants'
solicitors in June 1999 to provide details of any activity that each of the
deceased had been involved in since his release from prison that had made a
positive contribution to the welfare of the community. In response to the
letter relating to Mr McCallion, Madden & Finucane replied on 4 October 1999 as
"When Peter (deceased) met Ann-Marie in 1985 Ann-Marie had separated from her
previous husband and had two children Lianne and Marissa from that marriage.
Peter and Ann-Marie moved in together and from that point on Peter treated
Lianne and Marissa as his own. They married in December 1993 and they
subsequently had a little boy, Connor 1997.
Peter was a devoted and loving father to all the children and had helped create
a very close and supportive family with Ann-Marie. You have asked for
information that shows Peter's positive contribution to the welfare of the
community and we would submit that Peter's successful efforts in raising three
children, creating a secure and loving environment for his family is clearly a
positive contribution and also a testimony to his life since his rehabilitation
and reintegration to society since release from prison."
In relation to Mr McNeill, the solicitors replied on 29 September 1999 as
"Mr McNeill was a loving and caring father to his children and wife before and
after the marriage split in 1993. He had open access to the children and took a
keen interest in their welfare spending every Sunday with the children and also
taking them away for days at a time. In relation to his daughter, Denise
McNeill, he encouraged her Irish dancing taking her to various Feis around
We further submit that the conviction which falls under Article 5(9) was not of
a very serious nature on the scale of these types of convictions and indeed this
was reflected in the sentence of only months imprisonment in YOC. Since our
client's release in relation to the above offence his only convictions were for
motoring offences while taxi driving.
In summation we would submit that our client has been a positive contributor to
the community by maintaining a caring and loving relationship with his children
and also by conducting his life within the law bar a few minor traffic
Madden & Finucane had not been asked to supply details in relation to
Mr McColgan but this may be because they did not come on record for Mrs McColgan
until November 1999 and when they wrote asking that her case be dealt with under
Article 10(2), they provided information about Mr McColgan as follows: -
"John was a devoted and dedicated father for all his children, he and Lorraine
had created a close and supportive family group which has been devastated by his
atrocious murder. It is testimony to John that the family have come through the
worst of times resulting from his death. He took a keen interest in the welfare
of the children, Sean, Mairead and Gavin, indulging Sean's interest in fishing
and taking all the children swimming every Saturday. John also worked hard to
earn money to support the family unit.
We respectively (sic) submit that John's 'positive contribution to the
welfare of the community' was the creation of a stable family home in which his
children could flourish. We feel that this is again testimony to John's life
since his rehabilitation and reintegration to society after serving his prison
The applicants complain that the contribution that they could make to the
decision-making process was severely curtailed as a result of the Compensation
Agency's failure either to invite representations on the matters that were
likely to influence the Minister of State or to alert them to the matters that
were adverse to their cause. Instead they were asked to make submissions
on a very limited topic viz the contribution that their husbands had made
to the community after their release from prison. Mr Treacy QC on behalf
of the applicants submitted that the lack of opportunity to make meaningful
representations derived from two omissions. In the first place, the
applicants were not aware of the Bloomfield criteria; secondly, they were not
told about the matters that weighed with the Minister against them.
On behalf of the respondent,
Mr Maguire accepted that there was a duty on the Minister to act fairly in
taking the impugned decision but he suggested that this was not an immutable
concept. He pointed out that Article 10(2) itself did not prescribe any
procedural requirements. The function performed by the Minister was purely
administrative and involved a value judgment that was dependent on a wide range
of factors, including political considerations. The context did not lend
itself to a panoply of procedural rules, he suggested.
This aspect of the case is
perhaps best viewed from the perspective of those factors that actually
influenced the Minister's decision. Mr Brannigan in affidavits dealing
with each of the applicants' cases has said that the Minister considered each
affidavit in draft and expressed himself satisfied as to their accuracy in
relation to those matters that concerned him. One may conclude, therefore,
that the matters of consequence that weighed with the Minister are those set out
in Mr Brannigan's affidavits.
In relation to Mr McCallion,
according to Mr Brannigan's affidavit, no adverse comment from the police was
received concerning his behaviour and associates since his release from prison.
The Minister was informed that an award of £500 had been made to a soldier as a
result of the offences of which Mr McCallion had been convicted. He was
also told that the assault on Mr McCallion had not been a sectarian attack.
The circumstances of Mr McCallion's conviction and his membership of PIRA were
as described in Mr Stanley's submission. Mr Brannigan also made it clear,
of course, that the Minister of State had been advised by Mr Stanley that the
seriousness of the offences committed by Mr McCallion was such that he should
not exercise his discretion in favour of the application.
This then was the material
before the Minister and on which he took his decision. He also had regard
to the Bloomfield criteria. Did fairness require that Mrs McCallion should
have been informed of these matters before the Minister took his decision?
It is, of course, well
settled that what fairness requires will depend on the particular circumstances
of the individual case –R v Secretary of State for Home Department ex parte
 1 AC 531, 560. So far as the
Bloomfield criteria are concerned, as Mr Maguire pointed out, these had been
published before the decision was taken and no request had been made by
Mrs McCallion's solicitors for information about the factors that the
Secretary of State would take into account. Perhaps of greater importance,
however, is the fact that it has not been possible to identify any matter of
significance that would have been canvassed on her behalf, had Mrs McCallion or
her legal advisers been aware of the Bloomfield criteria. I am not
satisfied, therefore, that fairness required that she be informed of these
criteria in advance of the Minister's decision.
In relation to the material
that was put before the Minister, again it was not possible for the applicant to
point to a particular item on which she would have made specific representations
if she had been made aware of this. It was suggested in a general way that
she might have been able to emphasise the favourable points that had been made
in the submission but nothing of what could be regarded as hostile to the
application was identified as requiring representations on her behalf.
Generally, it appears to me
that an applicant for the exercise of the discretion under Article 10(2) should
be informed of the material that is adverse to the application, unless it can be
concluded that he or she must already be aware of this. I shall discuss
this in greater detail in relation to the cases of Mrs McColgan and Mrs McNeill.
I do not believe, however, that the requirements of fairness demand that
material that is favourable needs to be disclosed. Since there was nothing
adverse in the submission to Mrs McCallion's application on which she could have
made representations, I do not consider that there was an obligation to reveal
the submission's contents in advance of the Minister's decision.
In the case of Mrs McColgan,
different considerations arise. Mr Stanley advised the Minister that Mr
McColgan had been targeted probably because he had INLA traces.
Presumably, this information was given because Mr Stanley considered it to be
relevant to the Minister's decision. It must also be considered to be
adverse to the application. If Mr McColgan had INLA traces, it would be
indicative that he had not remained clear of terrorist connections from the time
that he had been released from prison. Mr Treacy has stated that, had Mrs
McColgan known that this information was to be given to the Secretary of State,
she would have made representations challenging its accuracy. Should Mrs
McColgan have been informed that there were INLA traces to her husband?
What did fairness require in these circumstances?
Likewise, in relation to Mrs
McNeill, a clear distinction can be drawn between her case and that of Mrs
McCallion. As I have recorded above, in his submission to the Minister, Mr
Stanley had stated that police believed that Mr McNeill was a "sympathiser and
that his death was probably due to a feud amongst republican terrorists".
Again, Mr Treacy has stated that evidence could have been presented to the
Minister by Mrs McNeill that would have countered this allegation. Should
she have been informed of it in advance of his decision?
Although it was given in the
context of the need to provide reasons after a decision, the summary by Lord
Bingham CJ in R v Ministry of Defence, ex parte Murray  COD 134of
the contemporary principles relating to the provision of reasons to a person
affected by an administrative decision, is helpful. At pages 136/7, Lord
Bingham said: -
"(a) 'The law does not at present recognise a general duty to give reasons' (Doody
(b) 'When a statute has conferred on any body the power to make decisions
affecting individuals, the court will not only require the procedure prescribed
by statute to be followed, but will readily imply so much and no more to be
introduced by way of additional procedural standards as will ensure the
attainment of fairness' (Cunningham, per Donaldson LJ at 318, quoting
Lloyd v McMahon  1 AC 625 at 702-703 and Doody at 564F).
(c) In the absence of a requirement to give reasons, the person seeking to
argue that reasons should have been given must show that the procedure adopted
of not giving reasons is unfair (Doody at 561A).
(d) There is 'a perceptible trend towards an insistence on greater openness … or
transparency in the making of administrative decisions' (Doody at 561E).
(e) In deciding whether fairness requires a tribunal to give reasons, regard
will be had not only to the first instance hearing but also to the availability
and the nature of any appellate remedy or remedy by way of judicial review:
(i) the absence of any right of appeal may be a factor in
deciding that reasons should be given (Cunningham at 322j)
(ii) if it is 'important that there should be an effective means of
detecting the kind of error [by way of judicial review] which would entitle the
court to intervene' then the reasoning may have to be disclosed (Doody at
565H and also Cunningham at 323a).
(f) The fact that a tribunal is carrying out a judicial function is a
consideration in favour of a requirement to give reasons (Cunningham at
323a) and particularly where personal liberty is concerned (Institute of
Dental Surgery at 263A).
(g) If the giving of a decision without reasons 'is insufficient to achieve
justice' then reasons should be required (Cunningham at 323a) as also
'where the decision appears aberrant' (Institute of Surgery at 263a,
cited with approval in R v Mayor, Commonalty and Citizens of the City of
London ex parte Matson (1996) 8 Admin. L.R. 49 at 62)
(h) In favour of giving reasons are the following factors: 'the giving of
reasons may among other things concentrate the decision-maker's mind on the
right questions; demonstrate to the recipient that this is so; show the issues
have been conscientiously addressed and how the result had been reached; or
alternatively alert the recipient to a justiciable flaw in the process' (Institute
of Dental Surgery at 256H, cited with approval in ex p Matson at 71)
(i) In favour of not requiring reasons are the following factors: 'it may place
an undue burden on decision-makers; demand an appearance of unanimity where
there is diversity; call for articulation of sometimes inexpressible value
judgments; and offer an invitation to the captious to comb the reasons for
previously unsuspected grounds of challenge' (Institute of Dental Surgery
(j) Although fairness may favour a requirement for reasons, there may be
considerations of public interest which would outweigh the advantages of
requiring reasons (Cunningham at 323b).
(k) The giving of reasons will not be required if the procedures of the
particular decision-maker would be frustrated by a requirement to give reasons,
even short reasons (Cunningham at 323b)."
It is not always the case that, where reasons must be given after a decision has
been made, adverse factors, identified before the decision is taken, must be
communicated to the person likely to be affected by it. It appears to me,
however, that if it is anticipated that a decision will require to be explained
after it has been taken, this must be, at least, an indicator that the person
affected should have the opportunity of influencing the decision before it is
made. For reasons that I will give presently, I consider that in certain
circumstances reasons for a decision not to exercise discretion under
Article 10(2) should be given. Some at least of the factors outlined by
the Lord Chief Justice are therefore pertinent to the inquiry whether these
applicants should have been informed of the matters that were likely to
influence the Minister's decision.
The first question to be
addressed is whether "additional procedural standards" require to be introduced
in order to "ensure the attainment of fairness". It is clear that the
Secretary of State conceived it to be fair that the applicants should
participate in the decision-making process. The letters to Mrs McCallion's
and Mrs McNeill's solicitors in June 1999 inviting submissions signify as much.
But the letters asked for information on a particular topic: details of any
activity that the deceased had been involved in since his release from prison
that had made a positive contribution to the welfare of the community. The
dispatch of the letters alone may not be taken as an indication that the
Secretary of State considered that the applicants should be at liberty to make a
general submission on any matter that might affect the exercise of the
discretion. It appears to me likely that the prosaic explanation for the
restricted nature of the inquiry is that, at the same time that the letters were
being sent to the applicants' solicitors, inquiries were being made of other
agencies, including the police, and the material concerning the circumstances of
the death of the two deceased, Mr McColgan and Mr McNeill, did not become
available until some time later.
Whatever may be the reason
for confining the inquiry to the applicants' solicitors, however, I am of the
opinion that the applicants were entitled to make submissions on any of the
matters that were likely to affect the Minister's decision as they were
adumbrated in the Bloomfield report. It was never suggested otherwise by
counsel for the respondent and much was made of the general availability of the
report in answer to the claim that the applicants were unaware of the criteria
that would be applied by the Minister to the exercise of the discretion.
It would be otiose to canvass the publication and ready availability of the
report as a reason to dismiss the complaint that the applicants were unaware of
its contents, if they were not entitled to make representations on those matters
in the first place.
Among the matters that the
Bloomfield report identified as factors to be taken into account was the pattern
of behaviour of the person who had suffered the criminal injury following
release from prison "as suggested by his criminal record and information
supplied by the police". If the applicants were entitled to make
representations on this point (as I believe they were), the representations that
could be made would only be meaningful if the applicants were aware of the
adverse evidence on the issue presented to the Minister by the police.
In a somewhat different
context, the Divisional Court in Re Robert Kerr (1999) unreported has
confirmed that a prisoner whose licence has been revoked should generally be
informed of the reasons for the revocation. Delivering the judgment of the
court, Carswell LCJ said: -
"It is now clear from the authorities that fairness requires as a general rule
that (a) a prisoner whose licence is revoked must receive at some stage an
opportunity to make representations about the revocation and (b) in order to do
so effectively he must be made aware of the reasons for the revocation, if he
does not already know them. … We do not consider, however, that it is possible
to lay down general rules about the stage at which the opportunity to make
representations must be afforded or about the extent of any exception to the
obligation to give reasons based upon protection of sources of information who
might be put in danger. In our view these are matters in respect of which much
may turn upon the circumstances of the individual case and it would not be
useful to prescribe procedures in any greater degree of detail."
Although the circumstances
were clearly different in that case from the present, the principle holds true
in this instance. If the applicants are entitled to make representations,
they must be aware of the case that they have to meet. It is my view that
to deny them the opportunity to make representations on a matter that they might
reasonably be expected to have a case to make is unfair.
The situation here contrasts
with that in Re Creighton. In that case I held that the applicant
was well aware of the single factor that weighed against him in the Secretary of
State's deliberations. His solicitors had the opportunity (and availed of
it) to make representations about that issue. I concluded that fairness
did not require that there be disclosure of the submission made to the Secretary
of State by the Compensation Agency since there was nothing beyond what had
already been said on his behalf by his solicitors that could be advanced by the
applicant. I dealt with the issue in this way: -
"In the present case the applicant well knew that he had been refused
compensation because of his earlier conviction. He and his legal advisers were
clearly alive to the importance of this as a factor in the Secretary of State's
deliberations because they dealt with it comprehensively in the submission
seeking the exercise of the discretion under Article 10(2). In the event,
therefore, the applicant was aware of the factor that weighed with the Secretary
of State in refusing compensation. It was not suggested that he would have
canvassed any other matter, had he been told in advance that this was the matter
that was likely to influence the Secretary of State to an adverse decision. In
these circumstances, I do not consider that fairness demanded that the applicant
be told in advance of the considerations that would be unfavourable to him."
In the case of Mrs McColgan and Mr McNeill, the applicants were aware
that the principal reason for the refusal to exercise the discretion was the
deceaseds' conviction of terrorist offences. But neither knew that there
was a particular factor about the circumstances of their husbands' killings that
was adverse to their application for the exercise of the discretion under
Article 10(2). In my view, "the attainment of fairness" required
that they should have been aware of this. It follows that they have
established to my satisfaction that the withholding of this information from
them was unfair (principle (c) of those listed by Lord Bingham in Murray).
It also appears to me that if
the Minister had afforded the applicants the opportunity to make comment on the
suggestions made by the police as to the circumstances of the death of their
husbands, this would have demonstrated that the issue had been "conscientiously
addressed". I do not believe that inviting the applicants' comments on
these suggestions would have placed an undue burden on the decision-maker.
These were discrete matters that could have been addressed succinctly.
Clearly, there is no public interest in withholding from disclosure the fact
that the police had given this advice nor does their revelation "offer an
invitation to the captious" to come up with a specious ground of challenge.
As I have said above, I
consider that in certain circumstances reasons for the decision taken by the
Secretary of State (or a Minister on his behalf) for refusing to exercise his
discretion under Article 10(2) should be given. I do not consider that the
Secretary of State is required to volunteer the reasons for his decision; nor do
I believe that it is necessary to explain it where the decision comes within the
category of an "inexpressible value judgment". Furthermore, if the reason
for the decision (as in Creighton) is obvious, I do not consider that
this needs to be recited. Where, however, as here, the decision is
influenced by a particular consideration that is unknown to the applicant and
there is no public interest requirement that this should be withheld, then it
appears to me that this should be explained to an individual applicant upon
inquiry. There is no appeal from the Secretary of State's decision and the
withholding of the reasons for the decision could result in a failure to detect
"the kind of error [by way of judicial review] which would entitle the court to
intervene". It has not been suggested that the giving of reasons on this
limited basis would frustrate the procedures of decision-making. The
preponderance of the factors outlined by Lord Bingham appears to me to favour
the giving of reasons in these cases.
I have therefore concluded
that Mrs McColgan and Mrs McNeill should have been informed of the particular
factors that weighed against their applications, before the Minister of State
took his decision. Because of the failure to advise them of these factors
and to give them the opportunity to make representations on them I will accede
to the application to quash the Minister's decision.
(ii) Lack of awareness of the Bloomfield criteria
I would not have been
prepared to hold that the failure of the Minister or the Compensation Agency to
inform the applicants and their legal advisers of the criteria set out in the
Bloomfield report rendered the decision of the Minister invalid. This
report is generally available and it contains a comprehensive list of the
matters to which the Secretary of State will have regard. It seems to me
that it is the responsibility of individual applicants for the exercise of the
Secretary of State's discretion to acquaint themselves with readily accessible
information about the matters that will be taken into account.
(iii) The failure to give reasons after the decision had been
I have already made clear my
view that the Secretary of State is not under an obligation to volunteer reasons
for his decision. Nor do I consider that the provision of reasons is
called for when they must be obvious to the disappointed applicant – (see
Creighton). Where the reasons for the decision fall exclusively within
the realm of "an inexpressible value judgment" they do not require to be
expressed, not least because the decision is one taken in the public interest
and the Minister is accountable to Parliament for it. But where, as in
this case, specific items of information become available on which the
applicants might reasonably be regarded as capable of providing some relevant
information, then the duty to alert the applicants in advance of the decision
marches hand-in-hand with the obligation to explain the decision after it has
In the present case, however,
I am satisfied that the applicants have been provided with a full explanation of
the reasons for the Minister's decision by the affidavits that have been filed
on behalf of the respondent and, if I considered that reasons required to be
given, I would have held that this requirement had been satisfied by the
averments in that affidavit – see Re Anglin  unreported, at pages
The alleged failure to take account of material factors and taking into
account that Mr McNeill was a "republican sympathiser"
The principal matter which, the applicants claim, the Minister failed
to take into account was the seriousness of the offences of which the deceased
had been convicted. Mr Treacy suggested that there had been no analysis of
the circumstances of the various offences that would have allowed the Minister
to form a reliable judgment of how serious or otherwise each had been. He
pointed to the relatively light penalty imposed in the cases of Mr McNeill and
Mr McColgan and claimed that these reflected the comparatively less grave nature
of the offences of which they had been convicted.
The submission to the Minister included details of the punishment imposed on
each of the applicants' husbands. I am satisfied that there was sufficient
material available to the Minister to enable him to make a reliable judgement as
to the seriousness of each offence. It does not appear to me to be
necessary that the Minister have an in-depth analysis of every case in order to
allow him to make a judgment about the level of seriousness of the offences
The information given to the
Minister that Mr McNeill was said to be a republican sympathiser was no more
than a peripheral fact provided by the Chief Executive by way of background.
There is no reason to suppose that it was an adverse factor in Mrs McNeill's
case. I do not consider that the Minister was obliged to leave the matter
out of account. The decision that the Minister had to take involved a
value judgment in which a wide variety of factors (including political
considerations) had to be considered. I am not prepared to hold that the
deceased's supposed political allegiance fell outside the range of factors to be
Alleged violation of the applicants' Convention rights
On behalf of the respondent,
Mr Maguire argued that since all the decisions taken in these cases pre-dated
the incorporation into domestic law of the European Convention on Human Rights,
the Minister was neither required to give effect to the Convention nor to take
it into account – R v Secretary of State for the Home Department ex parte
 1 AC 696. In any event, he
claimed, none of the decisions taken was in breach of the Convention.
There was no right to state funded compensation under the Convention.
For the applicant Mr Treacy
argued that the decision of the Minister was of continuing effect and it was
therefore subject to the Convention. He suggested that where the state had
set up a scheme for compensation of victims' families, it was a violation of
Article 14 to deny such compensation to the families of convicted terrorists.
It need not be shown, he suggested, that an actual violation of Article 2 or
Article 8 be established in order that Article 14 come into play.
The Minister is now, as a
public authority, bound by the terms of section 6 of the Human Rights Act 1998
not to act in a way that is incompatible with a Convention right. I accept
the argument of the respondent, however, that the Minister, having taken the
relevant decisions before the Human Rights Act came into force, was not then so
bound. As the Court of Appeal has held in Re Adams (2001)
unreported, section 22(4) of the Act provides that section 7 (1)(b) – which
enables a person who claims that a public authority has acted in a way made
unlawful by section 6 may rely on the Convention rights concerned in any legal
proceedings – does not apply to an act that took place before the coming into
force of section 7. Even if the Minister's decisions were in breach of the
Convention, therefore, they were not made retrospectively unlawful in domestic
law. As the Court of Appeal refused to in Adams, I do not accept
that the Minister's decisions are continuing acts.
Indeed, since there appears
to be no prohibition in the 1998 Order against it, each of the applicants would
be entitled to apply to the Secretary of State again that he should exercise his
discretion under Article 10(2). If such application were made, the
Secretary of State would be bound by section 6 in his determination of the
application. In the circumstances, it does not appear to me to be
appropriate for me to express any opinion as to the possible impact of the
Convention on the decision that he might be required to reach.
The United Nations Convention on the Rights of the Child
This Convention is not part
of the domestic law of the United Kingdom. As the Court of Appeal held in
Adams an important distinction must be drawn between the power to
resort to international standards and the obligation to do so. It
is permissible to have regard to these but not obligatory to do so. In any
event, I am not persuaded that there has been a breach of any of the precepts
laid down by the Convention in this case.
This issue can be dealt with
briefly. The decision of the Minister of State drew on a wide spectrum of
factors, some at least of them political. As has been held in Re
Williamson's Application  NI 294, this falls within a category of
decision that should be subject to what has become known as "soft-edged review".
In this type of case, the courts should be slow to intervene, recognising that
the Minister is accountable to Parliament and that he has taken a decision in
the public interest. Quite apart from that consideration, I should have
found it impossible to say that this decision was so aberrant or devoid of logic
as to merit condemnation as irrational.
I consider that the decision
of the Minister in relation to the cases of Mrs McColgan and Mrs McNeill cannot
be allowed to stand for the reasons that I have given earlier. I will
grant an order of certiorari to quash the decision taken in those cases. I
refuse judicial review in respect of Mrs McCallion's case.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
IN THE MATTER OF AN APPLICATION BY ANN-MARIE McCALLION, LORRAINE McCOLGAN AND
ANNE McNEILL FOR JUDICIAL REVIEW