Neutral Citation no.[2001] NIQB 32
Ref:
KERC3488
Judgment: approved by the Court for handing down
Delivered:
04.09.2001
(subject to editorial corrections)
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 HUGH JORDAN FOR JUDICIAL REVIEW
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KERR J
Introduction
By this application, Hugh
Jordan, the father of Pearse Jordan, deceased, challenges a decision of the
Chief Constable of the Royal Ulster Constabulary to withhold certain documents
(which Mr Jordan had sought for the purpose of an inquest into the death of his
son) unless an undertaking is given that the documents will only be used for
certain specified purposes.
Background
On 7 September 1999 Madden &
Finucane, acting on behalf of the applicant, wrote to the Chief Constable asking
for all documents generated by the police investigation into the death of Pearse
Jordan. Ultimately, on 2 February 2000, the Crown Solicitor's Office
replied on behalf of the Chief Constable, stating that he would disclose the
statements of those who were to be called as witnesses at the inquest or whose
statements were to be read by the Coroner in the course of the inquest.
The decision to restrict the
documents to be disclosed to these categories prompted an application for
judicial review by the applicant which came on for hearing on 3 October 2000.
On that date, the applicant was given leave to amend his Order 53 statement so
as to rely on rights said to derive from the incorporation of the European
Convention on Human Rights into domestic law. The hearing was adjourned
and, on 11 October 2000, an affidavit was filed on behalf of the Chief Constable
in which David Mercier, his legal adviser, stated that the Chief Constable had
reconsidered his decision in light of the Human Rights Act 1998 and had
determined that the documents which the applicant had sought should be
disclosed, subject to any claim for public interest immunity.
When the hearing of the
judicial review application was resumed on 12 October 2000, counsel for the
Chief Constable, Mr McCloskey QC, informed the court that, subject to any PII
constraints, the documents should be provided to the applicant's solicitors
within six weeks. The application for judicial review was thereupon
dismissed by consent.
On 19 December 2000 the Crown
Solicitor wrote to Madden & Finucane stating that the release of the documents
would be subject to the provision of an undertaking that they would not be used
for any purpose other than the inquest. He pointed out that this was a
feature of the Home Office circular which governed the disclosure of documents
for inquests and on which the applicant's judicial review had been based.
This prompted a number of letters from the applicant's solicitors in which,
among other matters, they referred to the fact that the Chief Constable had
reversed his earlier decision avowedly because of his consideration of the
Human Rights Act and to the fact that in neither Mr Mercier's affidavit nor in
Mr McCloskey's submissions to the court was any mention made of the need to
provide an undertaking. On 22 January 2001, the Crown Solicitor's Office
replied, asserting that no undertaking had been given, that it was open to the
Chief Constable to apply his policy (based on the circular) to the release of
these documents and that, at the time of making the second decision, the Chief
Constable and his advisers had not considered the decision in
Taylor v Serious Fraud Office (1998) 4 All ER 801. Having done so,
they had concluded that the requirement for an undertaking was fully justified.
Finally, the Crown Solicitor pointed out that the only purpose identified by the
applicant's solicitors to which the documents might be put other than the
inquest was the case then pending in the European Court of Human Rights.
In light of this the Chief Constable was prepared to modify the standard
undertaking to the extent that the Jordan family and their legal representatives
would be permitted to use the documents for domestic proceedings and for the
proceedings before the European Court of Human Rights.
The judicial review application
On behalf of the applicant,
Mr Treacy QC claimed that both in Mr Mercier's affidavit and in Mr McCloskey's
submissions to the court, an undertaking had been given that the documents
would be provided, subject only to any PII considerations. Mr Treacy
suggested that the applicant had agreed to his application for judicial review
being dismissed on that basis. If the question of an undertaking had been
raised, the applicant would not have agreed to the dismissal of those
proceedings.
In any event, Mr Treacy
submitted, the applicant was entitled to have unimpeded access to these
documents in vindication of his Article 2 rights. The ECtHR in its
decision in the case of Jordan v UK had been critical of the fact that
those responsible for the death of Pearse Jordan belonged to the same force (the
Royal Ulster Constabulary) as those who investigated the circumstances of his
death. It was inconceivable, Mr Treacy argued, that the head of that force
should be permitted to impose conditions on the availability of relevant
documents to the applicant. Such a condition had never previously been
required of the applicant's solicitors, Mr Treacy suggested, and no explanation
had been given as to why an exception was being made in this case.
Was an undertaking given to release the material unconditionally?
The averments made by Mr
Mercier as to the circumstances in which the documents would be provided were
unqualified save for the reference to PII. Likewise, Mr McCloskey made no
reference to the undertaking that might be required of the applicant when he
informed the court that the documents would be provided. I do not
consider, however, that these circumstances constitute an undertaking that the
documents would be provided without condition. As has been pointed out,
the relevant circular provided for an undertaking to be given that the documents
would not be used for a purpose other than the inquest. If the Chief
Constable and his advisers were to release the documents without requiring such
an undertaking, they would be acting in a way which did not accord with the
Chief Constable's own policy.
In this context, it does not
appear to me to matter greatly whether the Human Rights Act alone dictated the
Chief Constable's change of mind or whether other factors played a part.
Even if the new decision was based entirely on the Chief Constable's
consideration of the applicant's rights under the Convention, this did not
preclude him from following his own policy and imposing an undertaking.
Article 2
The applicant claims that he
is afforded non-derogable rights by Article 2 of the Convention which include a
right to unrestricted access to all documents relevant to the circumstances in
which his son died. It is suggested, therefore, that the imposition of an
undertaking in the form required by the Chief Constable violates that right.
The jurisprudence of ECtHR
does not support the applicant's claim to a right cast in such wide terms.
In its judgment in the applicant's case the Court dealt with the question of
access to documents in the following way: -
"1. As regards access to documents, until recently the applicant was not
able to obtain copies of any witness statements until the witness concerned was
giving evidence. This was also the position in the McCann case, where the Court
considered that this had not substantially hampered the ability of the families'
lawyers to question the witnesses (cited above, p. 49, § 62). However it must be
noted that the inquest in that case was to some extent exceptional when compared
with the proceedings in a number of cases in Northern Ireland (see also the
cases of McKerr v. the United Kingdom, no. 28883/95, Kelly and Others
v. the United Kingdom, no. 30054/96, and Shanaghan v. the United Kingdom,
no. 37715/97). The promptness and thoroughness of the inquest in the McCann case
left the Court in no doubt that the important facts relating to the events had
been examined with the active participation of the applicants' experienced legal
representative. The non-access by the next-of-kin to the documents did not, in
that context, contribute any significant handicap. However, since that case, the
Court has laid more emphasis on the importance of involving the next of kin of a
deceased in the procedure and providing them with information (see Ögur v.
Turkey, cited above, § 92).
2. Further, the Court notes that the practice of non-disclosure has
changed in the United Kingdom in the light of the Stephen Lawrence Inquiry and
that it is now recommended that the police disclose witness statements 28 days
in advance (see paragraph 73 above). Disclosure of the documents has now been
made to the applicant in advance of the next stage of the inquest procedures
(see paragraphs 50-54 above). This development must be regarded as a positive
contribution to the openness and fairness of the inquest procedures. The Court
is not prepared to reach any findings concerning the alleged incompleteness of
the disclosure at this stage. There is nothing before it to suggest that
materials necessary to the examination of the facts have been withheld. It may
be observed however that lack of access to the witness statements was the reason
for several adjournments in the inquest (see further below, paragraph 136). The
previous inability of the applicant to have access to witness statements before
the appearance of the witness must also be regarded as having placed him at a
disadvantage in terms of preparation and ability to participate in questioning.
This contrasts strikingly with the position of the RUC who had the resources to
provide for legal representation and full access to relevant documents. The
Court considers that the right of the family of the deceased whose death is
under investigation to participate in the proceedings requires that the
procedures adopted ensure the requisite protection of their interests, which may
be in direct conflict with those of the police or security forces implicated in
the events. Prior to the recent development in disclosure of documents, the
Court is not persuaded that the applicant's interests as next-of-kin were fairly
or adequately protected in this respect."
It is clear that the Court did not conclude that access to documents would
invariably be required. Indeed, in the McCann case the Court found
that the denial of access to documents did not handicap the proper exploration
of the relevant issues by the legal representative of the next of kin. It
is of course true that the Court also acknowledged that, since that case had
been decided, more emphasis had been laid on the importance of involving the
next of kin of a deceased in the procedure for an inquest and providing them
with information. But the Court was careful not to prescribe the
circumstances in which documents must be disclosed, much less the conditions in
which disclosure should take place.
In a somewhat different
context, ECtHR, in the case of Ogur v Turkey No 21594/93 considered the
right of the next of kin to have access to a police investigation file into
their relative's death. In that case members of the security forces had
killed the applicant's son. According to the Government, the scene of the
incident had been used as a shelter by terrorists. The applicant claimed that
her son had been a guard at a 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]. It found that
no such investigation had been conducted in that case. 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 had occasion to consider this decision recently in the case of
Re A's application (2001) unreported. There I said: -
"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 also considered by the Court of Appeal in Re
Adams [January 2001] unreported. Delivering the judgment of the court,
the Lord Chief Justice 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."
These passages illustrate the principle that what is required in order to
vindicate an applicant's Article 2 rights will depend on the circumstances of
the individual case. That has been emphasised by ECtHR in such cases as
Velikova v Bulgaria No 41488/98.
I am
satisfied that the applicant's Article 2 rights are not infringed by the
requirement that he give the undertaking sought by the Chief Constable. In
Velikova the Court described the nature of the Article 2 rights of the
next of kin of a deceased person killed by the use of force in this way: -
"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)."
There is nothing to suggest that, if the applicant complies with the request for
an undertaking, that this will involve any compromise of the effectiveness of
the investigation. For reasons that I shall discuss presently, the
requirement to give an undertaking in relation to statements made in the course
of a police investigation is not unreasonable. It has not been
demonstrated that unrestricted access to these statements is essential in order
that a "thorough, impartial and careful" investigation of the circumstances of
the death of the deceased's son may take place.
The undertaking
In advancing the case that the
undertaking sought by the Chief Constable was reasonable, Mr McCloskey relied
heavily on the decision of the House of Lords in Taylor and others v Serious
Fraud Office
[1998] 4 All ER 801. In that case
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."
As I observed in Re A's application, these passages identify the public
interest in maintaining confidentiality for police investigations unless the
requirements of justice otherwise dictate. The need to keep confidential
the contents of prosecution files has also been recognised in the United Nations
Guidelines on the Role of Prosecutors paragraph 13 (c) of which 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."
The material that the applicant sought from the Chief Constable consists of
statements made in the course of the police investigation into his son's death.
It is precisely the type of material referred to by Lord Hoffman in the second
passage quoted above. While the interests of justice require that it be
released to the applicant, it appears to me to be entirely consistent with the
approach recommended by Lord Hoffman that an undertaking be obtained from the
person to whom it is released that it should not be used for any purpose other
than is necessary to meet the requirements of justice. I am satisfied,
therefore, that the decision to require the applicant to give the undertaking
sought in this case is not unreasonable.
Conclusions
I have concluded that no undertaking was given by the Chief Constable's legal
adviser or by counsel that the documents would be released unconditionally.
I do not consider that the applicant' Convention rights are infringed by his
having to give an undertaking in the terms sought nor do I consider that the
decision to require such an undertaking before the documents are released is
unreasonable. The application for judicial review must be dismissed,
therefore.
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 HUGH JORDAN FOR JUDICIAL REVIEW
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JUDGMENT
OF
KERR J
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