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Jordan, Re [2003] NIQB 1 (6 January 03)
Ref: KERF3839
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (JUDICIAL REVIEW)
________ IN THE MATTER OF AN APPLICATION BY HUGH JORDAN FOR JUDICIAL REVIEW
________
KERR J
Introduction
- This is an application by Hugh Jordan for judicial
review of the decision of the Director of Public Prosecutions for Northern
Ireland refusing to give reasons for his decision not to prosecute the police
officer who caused the death of the applicant's son Pearse Jordan.
Background
- Pearse Jordan was shot dead by a member of the Royal
Ulster Constabulary on 25 November 1992. The circumstances of the shooting are
highly controversial and have been the subject of much litigation.
- On 16 November 1993 Alan G T White, acting on behalf
of the Director of Public Prosecutions, directed that there should not be a
prosecution of the officer who shot Pearse Jordan.
- At the beginning of January 1995, a coroner's inquest
into the death of Mr Jordan began. In the same month the police reported further
to the DPP and the inquest was adjourned. On 10 February 1995 Mr White wrote to
the applicant's solicitors as follows: -
"A supplementary report into the fatal shooting of Patrick Pearse Jordan on 25
November 1992 has been received from the Chief Constable. The facts and
information reported have been considered. The Director has informed the Chief
Constable that the direction which issued on 16 November 1993 stands. The
Director has asked that any further evidence which is adduced at the inquest
into the death of Patrick Pearse Jordan and which is relevant to the Director's
statutory functions under the Prosecution of Offences (Northern Ireland) Order
1972 should be reported"
The applicant's solicitors replied to this letter on 21 March 1995 asking that
Mr White provide reasons for the decision communicated by his letter of 10
February and seeking clarification of the further information received from the
Chief Constable. On 27 March 1995 Mr White replied stating,
"Following careful consideration of the facts and information reported in the
supplementary [police] report, it was concluded that the evidence remained
insufficient to warrant the prosecution of any person in relation to the death
of Mr Jordan."
- On 10 September 2001 the applicant's solicitors again
wrote to the DPP and referred to the decision of ECtHR in Jordan v UK and
asked to be provided with information relating to the decisions not to prosecute
the police officer who killed Pearse Jordan. After some further correspondence
on 1 February 2002 Mr Raymond Kitson on behalf of the DPP replied. He stated: -
"As you will be aware from your involvement in Jordan v United Kingdom
the operative decision in this matter constituted a direction of no prosecution,
issued on 16 November 1993. You will further be aware that, arising out of the
uncompleted inquest into the death of the deceased, a further report from the
police was commissioned, culminating in a letter dated 10 February 1995 from
this Department affirming the direction of no prosecution dated 16 November
1993.
As your most recent letter observes, the Director has obtained senior counsel's
advices. The Director has been advised in relation to the relevant provisions of
the Human Rights Act 1998 – in particular, section 6 (1), section 7 (1), section
7 (5) and section 22 (4). All of these provisions must be considered in the
context of the operative date of the Human Rights Act 1998 – 2 October 2000
(with certain very limited exceptions). The Director has also been advised of
the import and implications of the decisions of the House of Lords in Regina
v Lambert and Regina v Kansal.
As appears from the above, the only "decisions" known to the Director which
could conceivably correspond to the "decisions not to prosecute" specified in
the first paragraph of your letter of 24 January are those which were made on 16
November 1993 and 10 February 1995 respectively. Each of these decisions
predates the effective date of the Human Rights Act 1998.
Your letter contends that the Director has infringed section 6 of the Human
Rights Act 1998. On the grounds outlined above this contention is rejected.
While conscious of the duty to which he is subjected under section 6 in
appropriate cases, the Director considers that section 6 does not oblige him to
accede to the request enshrined in the first paragraph of your letter."
The case for the applicant
- The applicant contends that the policy of the DPP as
revealed in a response by the Attorney General to a written question in the
House of Lords was not to give reasons other than in the most general terms but
that each request for reasons would be dealt with by considering whether the
general practice should be followed. It is suggested that the DPP should
therefore have examined the propriety of applying the general practice on
receipt of the request for reasons in September 2001.
- The applicant submits that rather than reviewing and
examining the propriety of a refusal to give reasons in this case, the DPP
misdirected himself by focusing on the date of the coming into force of the
Human Rights Act. Effectively, therefore, the DPP failed to apply his own policy
of considering whether each request for reasons merited a departure from the
general practice.
- It is further submitted by the applicant that if the
DPP had reconsidered his decision not to give reasons he would have concluded
that this was an exceptional case justifying departure from his normal practice.
As a public authority he would have been bound to recognise that the applicant's
article 2 rights would be violated if reasons were not given. The applicant
relies in particular on the decision of ECtHR in Jordan v UK [2001] ECHR
24746 in which the court said that the death of Pearse Jordan "cries out for an
explanation". It is suggested that the DPP should contribute to that explanation
by revealing why it has been decided that the person who caused the death of Mr
Jordan should not be prosecuted.
The case for the respondent
- The respondent submits that the decision of ECtHR in
Jordan v UK should not be followed. It is suggested that this decision
neglected to take account of relevant international law and practice,
particularly in relation to the need for prosecutors to keep matters
confidential in the interests of justice. It is further suggested that the court
failed to have regard to the fact that the inquest had not been completed and
that he had requested that any further evidence adduced at the inquest be
reported to him.
- The respondent argues that the Human Rights Act is
designed to be prospective in effect. All material acts in this case occurred
before February 1995. The non-retrospectivity of HRA could not be circumvented
by events occurring after 2 October such as correspondence with the DPP and the
publication of the decision in Jordan v UK.
Jordan v United Kingdom
- This was one of a series of cases that recognised
again the need for procedural safeguards to underpin the substantive right to
life guaranteed by article 2 of ECHR. An aspect of those procedural safeguards
is an explanation of the circumstances in which the deceased died. This is
particularly required when the deceased was killed by an agent of the state. The
court envisaged that the DPP could have a critical role to play in this. It
dealt with that role in the following paragraphs of its judgment: -
"122. The Court recalls that the DPP is an independent legal officer charged
with the responsibility to decide whether to bring prosecutions in respect of
any possible criminal offences committed by a police officer. He is not required
to give reasons for any decision not to prosecute and in this case he did not do
so. No challenge by way of judicial review exists to require him to give reasons
in Northern Ireland, though it may be noted that in England and Wales, where the
inquest jury may still reach verdicts of unlawful death, the courts have
required the DPP to reconsider a decision not to prosecute in the light of such
a verdict, and will review whether those reasons are sufficient. This
possibility does not exist in Northern Ireland where the inquest jury is no
longer permitted to issue verdicts concerning the lawfulness or otherwise of a
death.
123. The Court does not doubt the independence of the DPP. However, where the
police investigation procedure is itself open to doubts of a lack of
independence and is not amenable to public scrutiny, it is of increased
importance that the officer who decides whether or not to prosecute also gives
an appearance of independence in his decision-making. Where no reasons are given
in a controversial incident involving the use of lethal force, this may in
itself not be conducive to public confidence. It also denies the family of the
victim access to information about a matter of crucial importance to them and
prevents any legal challenge of the decision.
124. In this case, Pearse Jordan was shot and killed while unarmed. It is a
situation which, to borrow the words of the domestic courts, cries out for an
explanation. The applicant was however not informed of why the shooting was
regarded as not disclosing a criminal offence or as not meriting a prosecution
of the officer concerned. There was no reasoned decision available to reassure a
concerned public that the rule of law had been respected. This cannot be
regarded as compatible with the requirements of Article 2, unless that
information was forthcoming in some other way. This however is not the case."
- This passage from the court's judgment contains a
number of important observations. Firstly, the independence of the DPP is
expressly acknowledged. It is therefore not because of any perceived lack of
impartiality on his part that the duty to give reasons may arise. Secondly, it
is clearly implicit in the court's decision that the DPP will not be required to
give reasons for deciding not to prosecute in every case. The conclusion that
such an explanation was required to satisfy the requirements of article 2 in the
Jordan case arose because of several factors that pertain in this case.
They are (i) doubts about the lack of independence of the police investigation;
(ii) the absence of the opportunity for public scrutiny; (iii) there was no
other forum in which the reasons that the death occurred were to be examined;
(iv) there was therefore "no reasoned decision available to reassure a concerned
public that the rule of law had been respected".
- The challenge by the respondent to the correctness
of this decision focused principally on the asserted failure of ECtHR to have
regard to the need for confidentiality in decisions whether to prosecute. I
cannot accept that the court failed to have regard to this factor. At paragraph
82 of the decision the court set out the observations of the government on the
practice of the DPP in relation to the giving of reasons as follows: -
"82. According to the Government's observations submitted on 18 June 1998, it
had been the practice of successive DPPs to refrain from giving reasons for
decisions not to institute or proceed with criminal prosecutions other than in
the most general terms. This practice was based upon the consideration that:
(1) if reason were given in one or more cases, they would be required to be
given in all. Otherwise, erroneous conclusions might be drawn in relation to
those cases where reasons were refused, involving either unjust implications
regarding the guilt of some individuals or suspicions of malpractice;
(2) the reason not to prosecute might often be the unavailability of a
particular item of evidence essential to establish the case (eg sudden death or
flight of a witness or intimidation). To indicate such a factor as the sole
reason for not prosecuting might lead to assumptions of guilt in the public
estimation;
(3) the publication of the reasons might cause pain or damage to persons other
than the suspect (eg. the assessment of the credibility or mental condition of
the victim or other witnesses);
(4) in a substantial category of cases decisions not to prosecute were based on
the DPP's assessment of the public interest. Where the sole reason not to
prosecute was the age, mental or physical health of the suspect, publication
would not be appropriate and could lead to unjust implications;
(5) there might be considerations of national security which affected the safety
of individuals (eg where no prosecution could safely or fairly be brought
without disclosing information which would be of assistance to terrorist
organisations, would impair the effectiveness of the counter-terrorist
operations of the security forces or endanger the lives of such personnel and
their families or informants)."
- Most, if not all, of these factors are concerned
with why it was said to be necessary to keep confidential the reasoning
underlying a decision not to prosecute. It is inconceivable that the court,
having set out the arguments advanced on behalf of the DPP, would have ignored
them in reaching its conclusion on this aspect of the case. In this context it
is noteworthy that it was not submitted to the court that there were particular
reasons that confidentiality was required in this case.
- The respondent submitted, however, that ECtHR had
failed to refer in its decision to the judgment of the Court of Appeal in this
jurisdiction in Re Adams' Application for Judicial Review
[2001] NI 1 and that of the House of
Lords in Taylor v Serious Fraud Office
[1998] 4 All ER 801. It was suggested
that if the European Court had considered these authorities it might well have
reached a different conclusion and that since this court was by virtue of
section 2 (1) (a) of the Human Rights Act 1998 only to take into account a
judgment of ECtHR, I should prefer the reasoning of the domestic courts on this
matter. The applicant's riposte was that ECtHR had considered the decision in
Re Adams' Application for Judicial Review at first instance and this had
referred to Taylor v Serious Fraud Office; furthermore, the decision of
the Court of Appeal in Re Adams' Application for Judicial Review had been
included in written submissions made to the court after the oral hearing. Rather
than attempt to resolve the dispute as to whether these materials were before
ECtHR, it appears to me to be preferable to examine both decisions to see
whether they would have made a difference to the reasoning of the court in
Jordan v UK.
Taylor v Serious Fraud Office
- In this case two documents generated during an
investigation by the Serious Fraud Office were revealed to the plaintiffs by
solicitors acting for defendants in criminal proceedings. The plaintiffs issued
proceedings for libel against the Serious Fraud Office and others. On an
application by the defendants, the action was struck out on the ground that the
two documents were subject to an implied undertaking, analogous to that in
relation to material produced on discovery in civil proceedings, that they would
not be used for any purpose other than the defence in the criminal proceedings.
On an eventual appeal to the House of Lords it was held that there was such an
implied undertaking and its purpose was to prevent abuse of process by
restricting the damage which might be caused by the publication or dissemination
of defamatory statements contained in disclosed documents. It was also held to
be necessary in the interests of the administration of justice that potential
witnesses in criminal proceedings and those investigating a crime or possible
crime or assisting a criminal inquiry were protected by absolute immunity from
suit, since the public interest required that all persons involved in a criminal
investigation should be able to communicate freely without being inhibited by
the threat of defamation proceedings.
- In my view, nothing in the decision in Taylor v
Serious Fraud Office detracts from the conclusions of the ECtHR in Jordan
v UK. Taylor was concerned with the need for immunity from suit to
attach to communications made in the course of a criminal investigation. It was
not concerned with the need to reveal or withhold information about the reasons
for taking or deciding not to pursue a prosecution. Indeed, in Taylor the
information provided to the investigators was revealed.
- It is true that the House of Lords recognised that
there was a need for confidentiality in dealing with information received by
prosecutors in the course of a criminal investigation but it was not suggested
that this was an absolute right. On the contrary, it was expressly acknowledged
that there would be circumstances in which the information provided would have
to be disclosed. At pages 810/811 Lord Hoffmann said: -
"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." [italics added]
- I am satisfied, therefore, that Taylor v Serious
Fraud Office does not impel a different conclusion from that reached by the
Strasbourg court in Jordan. As I have said, Taylor is concerned
with the need to protect witnesses (in that case by ensuring their immunity from
suit in libel proceedings) whereas the present case involves the question of
whether the reasons for a decision not to prosecute should be disclosed. It will
often be possible to reveal the reasons not to prosecute without compromising
the confidentiality of information supplied by witnesses. Where that is not
possible, a judgment will have to be made as to whether the need to maintain
confidentiality must yield to the need to protect article 2 procedural rights.
Where such a need arises, confidentiality of the decision making process
(although desirable in many circumstances) cannot prevail against it.
Re Adams' application
- In this case the appellant was arrested by police in
1994 and was subsequently convicted of terrorist offences. He alleged that
police officers had assaulted him at various stages in his arrest and initial
detention and brought proceedings in the High Court against the Chief Constable
for damages. He was awarded compensation in February 1998. Police had carried
out an investigation in 1994 into the appellant's complaints and reported to the
DPP. A further report was submitted after the completion of criminal proceedings
against him. Thereafter DPP issued a direction of no prosecution in respect of
any police officer involved in the arrest. After the 1998 judgment in the
appellant's favour, the police referred the case to the Independent Commission
for Police Complaints for Northern Ireland (ICPC) and appointed an investigating
officer from another force with the ICPC's approval. That officer's report was
delivered to the DPP's department in December 1998, as was a certificate from
the ICPC stating that the investigation had been conducted to its satisfaction.
The DPP was advised that there was insufficient evidence to afford a reasonable
prospect of obtaining a conviction of any police officer involved in A's arrest,
and in August 1999 he accordingly issued a direction of no prosecution. This
decision was reiterated in a letter to A's solicitors in September 1999, which
also refused publication of the investigating officer's report.
- The appellant issued proceedings for judicial review
challenging the DPP's decision not to prosecute any of the police officers who
were alleged to have assaulted him and the refusal to give reasons for that
decision. The application was dismissed and the appellant appealed. Dealing with
the claim that the DPP should have given reasons, Carswell LCJ, delivering the
judgment of the court, said at page 18: -
"We consider that … the DPP is not subject to the rules known as procedural
fairness, because he is not adjudicating in the same way as an administrator."
- The conclusion that the DPP is not subject to the
rules of procedural fairness does not sound, in my opinion, on the question
whether he is under an obligation to provide reasons in order to comply with the
requirements of article 2 of the convention. The latter obligation (if it is
found to exist) arises in a completely different context. It could not be
avoided because of the status of the DPP or the nature of his role in deciding
whether to institute a prosecution.
- The Court of Appeal, although it decided that the
appellant could not rely on the European Convention because of the
non-retrospective nature of the Human Rights Act, did consider arguments
advanced under article 3. It held that in the particular circumstances of that
case the appellant could not rely on article 3. It should be noted, however,
that the appellant had sought to argue merely that the obligation imposed upon
states by article 3 included the duty to carry out a prompt, impartial and
effective investigation into allegations of breaches of the article, which
extended to giving victims access to investigation files and other materials.
- After considering a number of decisions of ECtHR,
Carswell LCJ said at page 22: -
"… the 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. We would observe, moreover, that in referring to
access to the case file in Ogur v Turkey the Court may have had in mind
inspection of a document of the nature of the examining magistrate's dossier in
an inquisitorial system, and that quite different considerations may apply to
the investigation files of the RUC and DPP under our criminal law system. The
principle with which the Court was concerned in each case was that the state's
investigation of the conduct of its representatives be effective and
independent. The steps which are required to achieve this will depend on the
facts of the case and may vary enormously."
- I do not consider that this passage has any bearing
on the duty of the DPP to provide reasons for his decision not to prosecute. I
have concluded therefore that nothing in either Taylor or Adams
impinges on the reasoning of ECtHR in Jordan. But for the question of
retrospectivity (to which I shall turn presently) I can find no reason not to
follow the decision of the European Court, finding myself in complete agreement
with the reasoning that underlies it. In particular, I do not consider that the
fact that the inquest has not been completed is a reason that the DPP should be
absolved of the need to give reasons. The possibility that the inquest may, at
some unspecified future time, supply an answer to the unresolved questions
surrounding the death of Pearse Jordan cannot relieve the DPP of his duty to
explain the reasons for deciding not to prosecute if that will "reassure a
concerned public that the rule of law had been respected".
Retrospectivity
- The decisions of the DPP not to prosecute in this
case were taken in November 1993 and February 1995. The refusal to give reasons
is a continuing one, however, the applicant says. It is argued that the DPP when
faced with the request for reasons in September 2001 was obliged to confront a
number of new considerations. ECtHR had decided that he was under an obligation
to provide reasons in this case; his own policy was evolving as illustrated by
the Attorney General's statement in Parliament; as a public authority he was
under an obligation not to act incompatibly with the applicant's convention
rights (section 6 of HRA) – the continuing refusal to provide those reasons
constituted a fresh violation of article 2.
- The Court of Appeal in Adams dealt with the
issue of retrospectivity in the following passage at pages 19/20 of its
judgment: -
"When the DPP made the decision or decisions not to prosecute the police
officers, the Human Rights Act 1998 had not yet come into operation. He is now,
as a public authority, bound by the terms of s 6 not to act in a way which is
incompatible with a Convention right, but he was not then so bound. It follows
in our opinion that he was not under a legal obligation to have regard to the
provisions of the Convention when reaching his decision not to prosecute. By s
22(4) of the Act, s 7(1)(b)—which enables a person who claims that a public
authority has acted in a way made unlawful by s 6(1) to rely on the Convention
right or rights concerned in any legal proceedings—does not apply to an act
which took place before the coming into force of s 7. Accordingly, if the DPP's
decision was in breach of a Convention right, it is not made retrospectively
unlawful. We are unable to agree with the appellant's submission that the
decision not to prosecute and not to give reasons for that decision are
continuing acts which now come within the 1998 Act.
It was also submitted on behalf of the appellant that since the court, as a
public authority, may not act in a way which is incompatible with a Convention
right, it must afford him the appropriate relief if the decision of the DPP,
assuming that it were made now, would be in breach of any such Convention right.
We are unable to accept this proposition, for to do so would stultify s 22(4) of
the 1998 Act. Section 7(1)(b) is to apply to allow a victim to rely on a
Convention right in proceedings brought by or at the instigation of a public
authority, whenever the act complained of was committed. But the victim may not
invoke s 7(1)(b) to rely on a Convention right in respect of an act taking place
before the subsection came into force. Nor do we see how the court could be said
to be acting in a way which is incompatible with a Convention right if it holds
that a decision was lawful at the time when it was made and declines to set it
aside because it would be unlawful if made now. The appellant did not have a
Convention right when the decision was made; and he is not entitled to rely on
any Convention right in respect of decisions of the DPP made before 2 October
2000. For these reasons, accordingly, we would not be prepared to hold that the
DPP's decision is subject to attack on any grounds based on the Convention."
- The conclusions expressed in this passage are
binding on this court. I consider that the decisions of the DPP taken before the
Convention had been incorporated into domestic law cannot be transformed into
decisions that are subject to the Convention simply because the DPP has been
asked to review those earlier decisions. In two recent decisions the House of
Lords has held that the Human Rights Act was not retrospective: see R v
Lambert
[2001] 3 WLR 206 and R v Kansal (No
2)
[2002] 2 AC 69. To require the DPP to
give reasons for his decisions in 1993 and 1995 would inevitably involve giving
retrospective effect to the 1998 Act and this is simply not possible.
- The application for judicial review must be
dismissed.
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