Neutral Citation no. [2001] NIQB 21
Ref:
KERC3458
Judgment: approved by the Court for handing down
Delivered:
25.06.2001
(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 "A" FOR JUDICIAL REVIEW
______
KERR J
Introduction
The applicant applied to the court to be known as "A" for the purposes of these
proceedings. It was suggested that his life might be put at risk if his
identity was revealed. The respondent did not oppose the application that the
applicant be referred to as "A". The court acceded to the application and the
applicant has been so described throughout the proceedings.
In these proceedings the
applicant challenges the refusal by the Chief Constable to release certain
information concerning a find of material held by loyalist paramilitaries.
It is believed that the material included information about the applicant and a
photocopy of a photograph of him.
Background
On 28 October 1999 police stopped two
cars in the Antrim town area. Two men were arrested and an automatic rifle
was recovered. Both men were suspected members of the Orange Volunteer
Force. In a follow up search at Stoneyford Orange Hall, police uncovered a
plastic bag from beneath a stair head. This bag contained a number of
pages on which were found certain particulars relating to named individuals from
various areas.
On 12 November 1999 police officers
called at the home of the applicant's parents and asked that he contact police
regarding his personal safety. They said, in answer to a query, that
"personal details" of the applicant had been discovered amongst the material
found at Stoneyford. On 16 November 1999 the applicant's solicitors wrote
to the police asking for information about the material relating to the
applicant that had been found and for details of the police investigation into
it. Detective Superintendent Jack Harvey replied to this letter on 18
November describing the material found. He declined to give further
information as "these matters [were] currently under investigation".
In the meantime, police officers had called at the applicant's home on
17 November 1999, where they spoke to the applicant's wife. They told her that
the documents discovered in Stoneyford Orange Hall contained the name of the
applicant and a very poor quality photocopy of a photograph purporting to depict
him. She was also told that the documentation in question was believed to
be in the hands of loyalist paramilitaries. Further correspondence was
engaged between the applicant's solicitors and the police but the refusal to
disclose the material was maintained.
Two men had been arrested when police
stopped the two cars in Antrim. Further arrests were made in the days that
followed and on 2 November 1999, three men were charged with a range of
terrorist offences. Two of the men were charged under Section 33 of the
Northern Ireland (Emergency Provisions) Act 1996 with possession of information
likely to be of use to terrorists. Two other men were charged with related
offences.
Two of those charged in connection with
the find of documents at Stoneyford Orange Hall pleaded guilty to a number of
terrorist offences including possession of documents likely to be of use to
terrorists. A third person charged in relation to the documents entered a
plea of not guilty. The latter's trial commenced on 20 November 2000 and
on 23 November 2000 he was re-arraigned and changed his plea to one of guilty to
possession of documents likely to be of use to terrorists and assisting
offenders. The fourth person pleaded guilty to related terrorist
offences.
According to Detective Inspector Roy
McComb, police enquiries are still being pursued in relation to the origins of
the documents found at Stoneyford Orange Hall. Detective Inspector McComb
is the Deputy Senior Investigating Officer in an investigation into the
activities of the loyalist paramilitary organisation the Orange Volunteer Force.
He has said that further arrests and charges are still possible and that senior
police officers remain of the opinion that disclosure of the material or any
further information relating to it would be inappropriate at this stage.
The request for information
The information sought by the letter of
16 November from the applicant's solicitors was as follows: -
"(1) Full details of the information which ha[d] been found regarding [the
applicant]
(2) The source of the document or documents found
(3) In particular, please clarify whether:
(a) the documents themselves emanate from the security forces, or
(b) they are documents containing information which comes from the security
forces
(4) Which branch of the security forces is the source
(5) If the documents do not emanate from the security forces, the source or
suspected source of this information
(6) The date of the documents in question
(7) If the date of the documents is not apparent, the believed date on which
the documents were prepared
(8) Finally, please supply us with a copy of the documents relating to [the
applicant]"
Detective Superintendent Harvey's reply of 18 November 1999 stated that the
applicant's name was on the list found at the Orange Hall but that no address or
other particulars were associated with the name. A "very poor photocopy of
a photograph" of the applicant was also found. The Detective
Superintendent further stated that in relation to the other queries raised by
the applicant's solicitors these matters were under investigation and no
information on those could be supplied.
The applicant's solicitors renewed their
request in a letter dated 30 November 1999 but this elicited the response from
Detective Superintendent Harvey that the information provided satisfied all the
legal obligations on the Chief Constable.
The judicial review application
The applicant claims that the refusal to
disclose the information sought is unreasonable and that it constitutes a
violation of his rights under Articles 2 and 8 of the European Convention on
Human Rights.
The grounds on which judicial review is
sought may be summarised thus: -
1. The
procedural requirements of Article 2 of the European Convention on Human Rights
included a duty to disclose information which would enable a person such as the
applicant
(a) to raise a complaint about the disclosure of the material by members of
the security forces
(b) to monitor the progress of the investigation
(c) to make informed representations as to whether an outside police force
should be involved in the investigation of the circumstances in which the
information came into the possession of those who had it
(d) to determine whether any rights of the applicant had been infringed and, if
so, which
(e) to enable the applicant to be advised whether he could bring proceedings,
and, if so, against whom
(f) to assess the nature of the threat against him
(g) to be completely informed of the nature of the threat so that suspicion
arising from media reports might be allayed
2. The disclosure of personal details of the
applicant to loyalist paramilitaries constituted a violation of his rights under
Articles 2 and 8 of the Convention.
3. An effective remedy for violation of
Articles 2 and 8 rights (guaranteed by Article 13 of the Convention) required a
thorough and effective investigation of the circumstances in which such breaches
occurred.
4. Such an investigation required the
imparting of the information sought to the applicant so that he could monitor
its independence and thoroughness. The denial of disclosure therefore
constituted a violation of the Articles.
The reasons for refusing to disclose the material
In response to the various
grounds of challenge contained in the amended Order 53 statement, Detective
Superintendent Harvey, in an affidavit filed on behalf of the respondent,
summarised the reasons for refusing to disclose the material, as follows: -
"4. On behalf of the Chief Constable, I respond to each of these … grounds as
follows:
(a) The information which has been disclosed to the Applicant to date is
contained in my letter dated 18 November 1999 to his solicitors … It remains
the judgment of the Chief Constable and his senior officers that disclosure of
this information to the applicant, coupled with the readiness of the police to
provide security advice to the applicant and discuss his security arrangements
with him, is sufficient to protect the applicant's personal safety and security
at present. Further, it remains the judgment of the Chief Constable and his
senior officers that, as already averred in the affidavit of Detective Inspector
McComb … it would be inappropriate to disclose to the applicant or any other
person whether any of the additional information sought in his solicitor's
letter is in the possession of the police and/or to reveal any such information,
as this would be prejudicial to the continuing police investigation. It is also
the judgment of the Chief Constable and his senior officers that to disclose to
the applicant or anyone else whether any of the additional information is in the
possession of the police and/or to reveal any such information could be
prejudicial to the applicant's personal safety and security. Every act of
dissemination would create a risk of further unauthorised dissemination, whether
intentional or inadvertent, with a resulting threat to the personal safety and
security of the applicant and, perhaps, other persons. This would also be
detrimental to the maintenance of law and order. It could also compromise the
continuing criminal investigation and, possibly, any consequential criminal
proceedings. If the applicant wishes to make a complaint against the Chief
Constable or the Ministry of Defence or any other agency, he is at liberty to do
so and any such complaint will be duly processed in accordance with the
established procedures.
(b) It is the judgment of the Chief Constable and his senior officers that if
any of the additional information sought by the Applicant is in the possession
of the police, disclosure of such information to him would not assist him in
monitoring the progress of the investigation. Further, it is of paramount
importance that the investigation, which continues, should be conducted as
efficaciously as possible and should not be compromised in any way. One of the
fundamental aims of this investigation is, self-evidently, to trace the source
of the documents in question. This has entailed the commitment of very
considerable human and financial resources on the part of the Chief Constable.
(c) It is the judgment of the Chief Constable and his senior officers that if
any of the additional information sought by the applicant is in the possession
of the police, disclosure of any of this information to the applicant would not
assist him in making informed representations about whether an external police
force should be involved in the investigation. If the applicant wishes to make
representations about this matter on the basis of the information already
disclosed to him, he is at liberty to do so.
(d) As appears from my averments above, it is the judgment of the Chief
Constable and his senior officers that there are two over-riding objectives to
be achieved. The first is to take reasonable steps to alert persons such as the
applicant to such of the contents of the material documents as may possibly
relate to him, in the interests of the personal security and safety of the
applicant and his family. The second is to investigate and uncover all offences
connected in any way with the discovery of the documents in question as
efficaciously as possible, employing such strategies as the Chief Constable and
his senior officers consider appropriate. It is the judgment of the Chief
Constable and his senior officers that any other interest (such as the possible
infringement of any personal rights of the applicant or others) must yield to
the aforementioned two over-riding interests.
(e) … in comparable cases in the past, persons in the applicant's position
have commenced legal proceedings against the security forces without first
acquiring the information requested in the letter dated 16 November 1999 from
the applicant's solicitors.
(f)&(g) I repeat my above averments.
(h) I repeat my above averments. The Chief Constable and his senior officers
are aware of the speculative media reporting of the incident which has
occurred. The purpose of the police investigation is to establish the truth of
all matters related in any way to the discovery of the offending documents and
this investigation continues."
The case for the applicant
Mr Treacy QC on behalf of the
applicant claimed that collusion by the security forces with loyalist
paramilitary groups was an ongoing problem. Any act of collusion that puts
a person's life at risk constituted a violation of Article 2 of the Convention,
he suggested. This Article imposes procedural obligations on the State.
These include a thorough investigation of the circumstances in which an
individual's right to life was put at risk. Such an investigation must be
prompt, thorough, independent and impartial. It should be accessible to
the victim's family – Ogur v Turkey No 21594/93. In order to ensure
that the procedural safeguards are in place, the applicant is entitled, it was
claimed, to be provided with the information requested. Otherwise it was
impossible for him to make any judgment as to the independence and impartiality
of those conducting the investigation, he was deprived of the opportunity to
take proceedings against those who were responsible for leaking the information
about him and he was denied effective access to the investigatory procedure.
The case for the respondent
For the respondent Mr
McCloskey QC accepted that Article 2 can give rise to positive as well as
negative obligations. He submitted, however, that, before any such
obligation arose in the present case, the applicant must establish that there
was a real and immediate threat to his life and that the authorities had failed
to take measures within the scope of their powers to address that risk. He
claimed that the applicant had failed to establish either proposition.
Furthermore, Mr McCloskey
argued, the police authorities were entitled to a measure of respect in the
exercise of their judgment as to whether the information sought by the applicant
should be revealed. The decision not to release the information fell
comfortably within the scope of their discretion. In any event, the
decision was manifestly reasonable, he claimed.
Finally he suggested that
Article 2 did not import any freestanding right of access to the investigation
file, as had been suggested by the applicant. The case of Ogur did
not purport to afford such a right generally.
The duty to disclose
Although this case was launched before the incorporation of the
European Convention on Human Rights into domestic law, on the hearing of the
application, it was not suggested that any duty on the part of the police to
disclose the material sought arose under common law. The claim to be entitled
to disclosure of the material was founded solely on asserted Convention rights,
therefore.
In Aydin v Turkey
(1997) 25 EHRR 251, the European Court of Human Rights held that where an
individual has an arguable case that there has been a violation of an Article 3
right (prohibition of torture), the notion of an effective remedy entailed "a
thorough and effective investigation capable of leading to the identification
and punishment of those responsible and including effective access for the
complainant to the investigatory procedure". The applicant in the present
case argued that an analogous right existed under Article 2. Mr Treacy
submitted that the applicant should have access to the information contained in
the police file, pointing out that in the Ogur case the Court was
critical of the fact that during the administrative investigation of the death
of the deceased the case file was inaccessible to the victim's close relatives.
Article 2 (1) of the
Convention provides: -
"Everyone's right to life shall be protected by law. No one shall be deprived of
his life intentionally save in the execution of a sentence of a court following
his conviction of a crime for which this penalty is provided by law."
It is clear that one of the procedural safeguards that underpin the substantive
rights enshrined in Article 2 is that there be a thorough and effective
investigation of the circumstances of an unlawful death. It is also clear
that Article 2 gives rise to a positive duty on the part of the State to
safeguard the lives of its citizens. In Osman v United Kingdom
(2000) 29 EHRR 245 the Court dealt with
this subject in the following way: -
"115. The Court notes that the first sentence of Article 2 § 1 enjoins the
State not only to refrain from the intentional and unlawful taking of life, but
also to take appropriate steps to safeguard the lives of those within its
jurisdiction (see the L.C.B. v. the United Kingdom judgment of 9 June 1998,
Reports of Judgments and Decisions 1998-III, p. 1403, § 36). It is common
ground that the State's obligation in this respect extends beyond its primary
duty to secure the right to life by putting in place effective criminal-law
provisions to deter the commission of offences against the person backed up by
law-enforcement machinery for the prevention, suppression and sanctioning of
breaches of such provisions. It is thus accepted by those appearing before the
Court that Article 2 of the Convention may also imply in certain well-defined
circumstances a positive obligation on the authorities to take preventive
operational measures to protect an individual whose life is at risk from the
criminal acts of another individual. "
The Court recognised that not every claimed risk to life would give rise to the
duty to take preventative measures. Only where the authorities knew of "a
real and immediate risk to the life" of an identified individual would the duty
arise. Thus at paragraph 116 of its judgment, the Court said: -
"For the Court, and bearing in mind the difficulties involved in policing modern
societies, the unpredictability of human conduct and the operational choices
which must be made in terms of priorities and resources, such an obligation must
be interpreted in a way which does not impose an impossible or disproportionate
burden on the authorities. Accordingly, not every claimed risk to life can
entail for the authorities a Convention requirement to take operational measures
to prevent that risk from materialising. Another relevant consideration is the
need to ensure that the police exercise their powers to control and prevent
crime in a manner which fully respects the due process and other guarantees
which legitimately place restraints on the scope of their action to investigate
crime and bring offenders to justice, including the guarantees contained in
Articles 5 and 8 of the Convention.
In the opinion of the Court where there is an allegation that the authorities
have violated their positive obligation to protect the right to life in the
context of their above-mentioned duty to prevent and suppress offences against
the person (see paragraph 115 above), it must be established to its satisfaction
that the authorities knew or ought to have known at the time of the existence of
a real and immediate risk to the life of an identified individual or individuals
from the criminal acts of a third party and that they failed to take measures
within the scope of their powers which, judged reasonably, might have been
expected to avoid that risk. The Court does not accept the Government's view
that the failure to perceive the risk to life in the circumstances known at the
time or to take preventive measures to avoid that risk must be tantamount to
gross negligence or wilful disregard of the duty to protect life (see paragraph
107 above). Such a rigid standard must be considered to be incompatible with the
requirements of Article 1 of the Convention and the obligations of Contracting
States under that Article to secure the practical and effective protection of
the rights and freedoms laid down therein, including Article 2 (see, mutatis
mutandis, the above-mentioned McCann and Others judgment, p. 45, § 146). For
the Court, and having regard to the nature of the right protected by Article 2,
a right fundamental in the scheme of the Convention, it is sufficient for an
applicant to show that the authorities did not do all that could be reasonably
expected of them to avoid a real and immediate risk to life of which they have
or ought to have knowledge. This is a question which can only be answered in the
light of all the circumstances of any particular case."
Although the Court held that it was sufficient that an applicant show that the
authorities had not done all that could be reasonably expected of them, it
recognised (at least implicitly) that a measure of discretion was available to
the police in deciding what steps were required. This much is clear from
the passage of the Court's judgment in which it was stated that it required to
be established "that they failed to take measures within the scope of their
powers which, judged reasonably, might have been expected to avoid that risk".
In R v Director of Public Prosecutions
ex parte Kebeleine and others
[2000] 2 AC 326, 379 Lord Hope of
Craighead dealt with the margin of appreciation argument in this way: -
"The doctrine of the 'margin of appreciation' is a familiar part of the
jurisprudence of the European Court of Human Rights. The European Court has
acknowledged that, by reason of their direct and continuous contact with the
vital forces of their countries, the national authorities are in principle
better placed to evaluate local needs and conditions than an international
court: Buckley v. United Kingdom
(1996) 23 E.H.R.R. 101, 129, paras.
74-75. Although this means that, as the European Court explained in Handyside
v. United Kingdom (1976) 1 E.H.R.R. 737, 753, para. 48, 'the machinery of
protection established by the Convention is subsidiary to the national systems
safeguarding human rights,' it goes hand in hand with a European supervision.
The extent of this supervision will vary according to such factors as the nature
of the Convention right in issue, the importance of that right for the
individual and the nature of the activities involved in the case.
This doctrine is an integral part of the supervisory jurisdiction which is
exercised over state conduct by the international court. By conceding a margin
of appreciation to each national system, the court has recognised that the
Convention, as a living system, does not need to be applied uniformly by all
states but may vary in its application according to local needs and conditions.
This technique is not available to the national courts when they are considering
Convention issues arising within their own countries. But in the hands of the
national courts also the Convention should be seen as an expression of
fundamental principles rather than as a set of mere rules. The questions which
the courts will have to decide in the application of these principles will
involve questions of balance between competing interests and issues of
proportionality.
In this area difficult choices may have to be made by the executive or the
legislature between the rights of the individual and the needs of society. In
some circumstances it will be appropriate for the courts to recognise that there
is an area of judgment within which the judiciary will defer, on democratic
grounds, to the considered opinion of the elected body or person whose act or
decision is said to be incompatible with the Convention. This point is well made
at p. 74, para. 3.21 of Human Rights Law and Practice (1999), of which
Lord Lester of Herne Hill and Mr. Pannick are the general editors, where the
area in which these choices may arise is conveniently and appropriately
described as the 'discretionary area of judgment.' It will be easier for such
an area of judgment to be recognised where the Convention itself requires a
balance to be struck, much less so where the right is stated in terms which are
unqualified. It will be easier for it to be recognised where the issues involve
questions of social or economic policy, much less so where the rights are of
high constitutional importance or are of a kind where the courts are especially
well placed to assess the need for protection. But even where the right is
stated in terms which are unqualified the courts will need to bear in mind the
jurisprudence of the European Court which recognises that due account should be
taken of the special nature of terrorist crime and the threat which it poses to
a democratic society: Murray v. United Kingdom
(1994) 19 E.H.R.R. 193, 222, para. 47."
In the present case, of course, the decision under challenge was not taken by an
"elected body" and the degree of deference due to it is commensurately less but
it appears to me that an appropriate level of discretion must be available to
the police authorities in deciding what measures are required to afford the
applicant adequate protection in fulfilment of his Article 2 rights. The
police are inevitably in a better position than is the court to assess the level
of threat to the applicant and to judge the degree of risk that would accrue if
the information sought by the applicant were released to him. They are
also aware whether further arrests are likely and whether future prosecutions
might be jeopardised if the information was disclosed. These
considerations do not relieve the court of its supervisory duty but the court
should be conscious of them in exercising superintendence of the respondent's
decision.
It is clear that the
discovery of material relating to the applicant, a republican, in the hands of
loyalist paramilitaries is at least indicative of a risk to his life. It
is, in my opinion, also clear that the state authorities are under a duty to
ensure that a thorough investigation of that risk is undertaken. That
investigation must comprehend a searching inquiry into the circumstances in
which the information on the applicant was obtained by those in whose possession
it was found. It is certain that, in order to be thorough and effective,
the investigation must also involve the participation of the applicant.
This necessarily requires that he be informed of the find of material relating
to him. It is in any event essential that he be aware of the risk so that
he may take such precautions as he can. It is not inevitable that he must
be told everything about the find, however. The duty of disclosure must
relate to the assessment of the risk to the applicant and the steps necessary to
counteract it. While the investigation into the circumstances in which the
information on the applicant came into the wrong hands must be impartial, I am
not persuaded that it inexorably follows that the applicant is entitled to have
access to all the information in the possession of the police in order to
monitor the independence and impartiality of those conducting the investigation.
Nor do I consider that he is entitled to access to the information that he has
sought in order to take proceedings against those responsible for releasing
information about him unless it is shown that such a facility is required
in order to provide him with adequate safeguards under Article 2 and I do not
consider that this has been established in the present case.
The right to compensation
Mr Treacy argued that
Strasbourg jurisprudence had recognised a freestanding right to compensation as
a feature of Article 2 rights. This right, he asserted, was unrelated to
the need for a thorough and effective investigation of the circumstances in
which the substantive violation of Article 2 arose. He founded this claim
principally on the decisions of ECtHR in Aydin v Turkey (1997) 25 EHRR
251 and Aytekin v Turkey (1998) EHRR. In the first of these cases
the applicant had been raped and ill-treated in custody. It was held that
there had been a violation of her Article 3 rights. She also claimed that
there had been a breach of Article 6 because the failure of the authorities to
conduct an effective investigation into her suffering while in detention
resulted in her being denied access to a court to seek compensation. The
Court held that the essence of her complaint concerned the inadequacy of the
official investigation and it was therefore considered appropriate to examine
the complaint at issue under Article 13. The Court held that the notion of
an effective remedy entails, in addition to the payment of compensation where
appropriate, the conduct of a thorough and effective investigation capable of
leading to the identification and punishment of the culprits. At paragraph
101 the Court said: -
"It appears to the Court that the essence of her complaint under Article 6 § 1
of the Convention is the failure of the public prosecutor to conduct an
effective investigation, which, if not giving rise to a prosecution, at the very
least would prove that she had suffered harm while in custody, thus enhancing
the prospects of success of her claim for compensation."
I do not construe this passage as suggesting that the applicant had a
freestanding right to claim compensation deriving from the alleged breach of
Article 6 but divorced from the violation of Article 3. On the contrary,
the claim to compensation appears to have been considered by the court to be an
element of her right to an effective investigation of the "harm" that she had
suffered while in custody.
In Aytekin v Turkey
the applicant was the widow of a man who was unlawfully killed by a soldier.
The soldier had been prosecuted for causing the death of the applicant's husband
and had been convicted of unintentional homicide. At the time that the
application was being considered by ECtHR, the widow's appeal against the
verdict was pending as was the prosecution's appeal against the leniency of the
sentence imposed. The Court decided that the applicant had not exhausted
her domestic remedies and concluded that it could not consider the merits of the
case on that account. At paragraph 84 of the judgment the Court said: -
"As to the possibility of instituting compensation proceedings in respect of the
death of her husband, the Court recalls that an alleged violation of Article 2
of the Convention cannot be remedied exclusively through an award of damages to
the relatives of the victim."
Again, this does not suggest that a "stand-alone" claim for compensation is an
invariable incident of an Article 2 violation. A claim for compensation
may be an element of the procedural safeguards that derive from Article 2; it is
not inevitable that this should be so. I do not consider, therefore, that
the applicant in the present case is entitled to assert a claim under Article 2
to have access to the information sought in order to promote a claim to
compensation which is unrelated to the need for a thorough and effective
investigation into the circumstances in which the alleged violation of Article 2
occurred.
Access to the investigation file
On the question of the applicant's asserted right to access to the investigation
file I accept Mr McCloskey's argument that the Strasbourg jurisprudence does not
recognise a freestanding right to have such access, as claimed by the
applicant. In particular, Ogur v Turkey is not authority for that
proposition. In that case the security forces carried out an armed operation at
a site belonging to a mining company. The applicant's son, who worked at the
mine as a night watchman, was killed as he was about to come off duty.
According to the Government, the scene of the incident had been used as a
shelter by four terrorists who were members of the PKK (Workers' Party of
Kurdistan), including the applicant's son. The applicant claimed that her son
had merely been one of the guards at the mining company's site and he had been
shot dead by the security forces without warning. The Court held that the
obligation to protect the right to life under Article 2 of the Convention
required that there should be some form of effective official investigation when
individuals have been killed as a result of the use of force [Paragraph 88].
The Court found that no such investigation had been conducted in that case. It
was against this backdrop that the Court referred to the fact that the
investigation file was inaccessible to the applicant. At paragraph 92 of the
judgment the Court stated: -
"It must be noted, lastly, that during the administrative investigation the case
file was inaccessible to the victim's close relatives, who had no means of
learning what was in it (see paragraph 15 above). The Supreme Administrative
Court ruled on the decision of 15 August 1991 on the sole basis of the papers in
the case, and this part of the proceedings was likewise inaccessible to the
victim's relatives. Nor was the decision of 15 August 1991 served on the
applicant's lawyer, with the result that the applicant was deprived of the
possibility of herself appealing to the Supreme Administrative Court."
I do not construe this passage as indicating that the Court intended that the
relative of a deceased victim should in all circumstances be entitled to have
access to the investigation file. The fact that the applicant in the
Ogur case did not have access to information about the investigation was a
further illustration of the inadequacy of the inquiry. It does not follow
that, in every instance, in order to be effective, an investigation must be
conducted by allowing the victim access to all of the information available to
the investigating authorities.
The case of Ogur was
considered by the Court of Appeal in Re Adams [January 2001] unreported.
After quoting paragraphs 90 to 92 of the judgment of ECtHR, the Lord Chief
Justice (who delivered the judgment of the court) said: -
"It will be seen from the portions which we have quoted … that ECtHR does not
lay down any ruling that for an investigation to be regarded as effective the
claimant must have access to the investigation papers. It is merely one element
among others which may demonstrate the inadequacy of an investigation. It does
not follow that a thoroughly conducted investigation is to be regarded as
deficient if the complainant has not been given access to the investigators'
documents."
I respectfully agree with this statement. I do not consider that access to
the police file was necessary in order to demonstrate the sufficiency of the
police investigation in this case.
In Velikova v Bulgaria
No 41488/98, the Court emphasised that each case must be determined according to
its own particular facts. In that case the applicant complained under
Articles 2, 6, 13 and 14 of the Convention in respect inter alia of the
alleged ineffective investigation into the death in police custody of Mr
Tsonchev, the man with whom she had been living. At paragraph 80 of the
judgment the Court said: -
"The Court recalls that the State's obligation under Article 2 to protect the
right to life, read in conjunction with its general duty under Article 1 of the
Convention 'to secure to everyone within their jurisdiction the rights and
freedoms defined [therein]', requires by implication that there should be some
form of effective official investigation when individuals have been killed as a
result of the use of force. The investigation must be, inter alia,
thorough, impartial and careful (see the McCann and Others v. the United Kingdom
judgment of 27 September 1995, Series A no. 324, p. 49 §§ 161-163, and the
Çakici judgment, cited above, § 86).
The Court further considers that the nature and degree of scrutiny which
satisfies the minimum threshold of the investigation's effectiveness depends on
the circumstances of the particular case. It must be assessed on the basis of
all relevant facts and with regard to the practical realities of investigation
work. It is not possible to reduce the variety of situations which might occur
to a bare check list of acts of investigation or other simplified criteria (see
the Tanrikulu v. Turkey judgment of 8 July 1999, Reports 1999-§§ 101-110,
the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, pp. 325
and 326, §§ 89-91, and the Güleç v. Turkey judgment of 27 July 1998, Reports
1998-IV, pp. 1732-1733, §§ 79-81)."
Detective Superintendent Harvey described the measures taken by police after
discovery of the material in paragraph 4 of his first affidavit: -
"Following deliberations among senior police officers, a strategy was devised.
As part of this strategy, it was determined to locate the whereabouts of each of
the individuals named in the documentation so that they could be alerted to the
discovery of the documentation and such of the contents thereof relating to the
individual concerned. In those cases where the documentation did not identify
clearly the individual to whom the particulars related, police concentrated
their efforts on identifying the most likely person. The purpose of this was to
alert each individual to a possible threat from loyalist paramilitaries and to
warn them to take enhanced precautions for their personal security."
The applicant's spouse and parents were informed of the find, he was advised to
take enhanced precautions for his personal safety, he was told that the police
were willing to provide security advice and to discuss his personal security
arrangements with him. Four individuals have been arrested and
successfully prosecuted as a result of the find. All of these
circumstances must be taken into account in deciding whether the investigation
into the find has been adequate or whether it requires to be supplemented by the
disclosure of the information sought by the applicant. In my judgment, it
has not been shown that the investigation is inadequate or that the applicant
requires to be provided with the information sought.
There is an obvious public interest in
keeping some aspects of a criminal investigation confidential. The United
Nations Guidelines on the Role of Prosecutors paragraph 13 (c) provides: -
"[In the performance of their duties prosecutors shall] keep matters in their
possession confidential, unless the performance of duty or the needs of justice
require otherwise."
This international standard is reflected in the domestic law of the United
Kingdom. In Taylor and others v Serious Fraud Office
[1998] 4 All ER 801, documents generated
by a Serious Fraud Office inquiry were disclosed to the solicitors of defendants
in a criminal trial. The solicitors in turn disclosed them to the first
plaintiff who issued proceedings for libel. The House of Lords held that
an implied undertaking applied to material disclosed by the prosecution in
criminal proceedings.
At page 807 Lord Hoffman said: -
"The implied undertaking in civil proceedings is designed to limit the invasion
of privacy and confidentiality caused by compulsory disclosure of documents in
litigation. It is generated by the circumstances in which the documents have
been disclosed, irrespective of their contents. It excludes all collateral use,
whether in other litigation or by way of publication to others."
and at page 810: -
"Many people give assistance to the police and other investigatory agencies,
either voluntarily or under compulsion, without coming within the category of
informers whose identity can be concealed on grounds of public interest. They
will be moved or obliged to give the information because they or the law
consider that the interests of justice so require. They must naturally accept
that the interests of justice may in the end require the publication of the
information, or at any rate its disclosure to the accused for the purposes of
enabling him to conduct his defence. But there seems to me no reason why the law
should not encourage their assistance by offering them the assurance that,
subject to these overriding requirements, their privacy and confidentiality will
be respected."
These passages identify the public interest in maintaining confidentiality for
police investigations unless the interests of justice require otherwise.
Unless it can be demonstrated that there are compelling reasons for disclosing
the contents of a police investigation file, its vital confidentiality should be
preserved. I do not believe that such a need has been established in the
present case. The applicant is well aware of the nature of the find.
He has been offered advice on personal security and an inquiry as to how the
material relating to the applicant was leaked is under way.
Conclusions
I am satisfied that a proper
investigation of the circumstances in which the information about the applicant
was released is under way and that the applicant is equipped with the
information necessary to launch in personam proceedings against the
security forces, if he wishes to do so. I do not consider that the
applicant has established any entitlement to the documents in dispute and the
application for judicial review must be dismissed.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
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IN THE MATTER OF AN APPLICATION BY "A" FOR JUDICIAL REVIEW
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JUDGMENT
OF
KERR J
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