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Neutral Citation No.
[2012] NIQB 20
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Ref:
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WEA8440
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Judgment: approved by the
Court for handing down
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Delivered:
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12/03/2012
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(subject to editorial
corrections)*
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IN THE HIGH COURT OF
JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
________
AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL
REVIEW BY
BRIGID McCAUGHEY
McCaughey’s (Brigid) Application [2012] NIQB 20
WEATHERUP J
[1] This is an application for leave
to apply for Judicial Review of the decision of the Coroner of 8 March 2012
concerning disclosure to the applicant, as next of kin of the deceased, of
documents in relation to seven soldiers involved in the shooting incident that
gave rise to the death of Martin McCaughey, the deceased, over 20 years ago. Ms
Doherty appeared for the applicant, Mr Daly for the Coroner, the proposed
respondent, and Mr Maguire QC for the Ministry of Defence, a notice party.
[2] The applicant’s Order 53 Statement
seeks a declaration that the applicant is entitled to information about the
involvement of the soldiers in other lethal force incidents; a declaration that
the failure to provide such information to the next of kin denies the next of
kin an opportunity to make representations on the probative value of the other
incidents and thereby denies them their right to participate in the Inquest; a
declaration that denying the next of kin access to the information about the
involvement of soldiers in other incidents of lethal force deprives them of
equality of arms; and a declaration that the Coroner’s ruling was reached in a
procedurally unfair manner.
[3] The issue of the role of the
soldiers in other incidents involving the use of lethal force arose in a letter
from the applicant’s solicitors on 4 October 2011 in which the solicitors
requested the Coroner to secure information in relation to the involvement of
the soldiers in any such incidents. A preliminary hearing was convened by
the Coroner on 17 October 2011 and the representatives of the MoD indicated that
further statements were to be prepared by the soldiers and the statements would
provide information in relation to other incidents. The statements were to be
produced by 23 December 2011. The statements were eventually produced in
February and March 2012. The statements of the seven soldiers, known as A,
B, C, D, E, G and I, were then disclosed to the applicant.
[4] Soldier A disclosed his
involvement in two incidents, in one of which he had opened fire. Soldiers C, D
and G disclosed that each was involved in another incident, however none
disclosed whether he had fired in those incidents nor were any details given
about the incidents. Soldiers D, E and I were silent about their involvement in
other incidents.
[5] The Coroner, after prompting from
the applicant’s solicitor, sought further particulars in relation to the
statements. Further to a letter from the Coroner, the Crown Solicitor’s Office,
on behalf of the MoD, forwarded to the Coroner a table which outlined the
position of each of the seven soldiers in relation to other incidents in which
each had been involved, what role each had in that incident and whether each had
fired on those occasions.
[6] There was an exchange of written
submissions by the applicant and the MoD in relation to the disclosure of
information about any other incidents. The Coroner made his ruling on the
basis of all the information that he had in relation to the Inquest and in
particular he had the personnel files for each of the seven soldiers, the MoD
table which set out the connections between the soldiers and other incidents and
the role of those soldiers and he had the Inquest papers in relation to deaths
that had occurred in the other incidents. The personnel files, MoD table
and other Inquest papers were not available to the applicant.
[7] The Coroner made his ruling on 8
March 2012. By that ruling he indicated that he could confidently state that no
reasonable avenue of enquiry about the witnesses that might yield material
relevant to the issues in the Inquest had been left unexplored; that he was
conscious of his duty to keep all decisions on relevance under review; that
whether each incident was relevant or potentially relevant to the issues was the
question to be addressed at the hearing; that the question would be “Is evidence
relating to the other incident capable of being logically probative of an issue
to be determined by the jury at this Inquest?”. The Coroner stated that he took
account of the nature of the other incidents, the evidence concerning the
witnesses’ involvement in the present case and information concerning witnesses’
involvement in other incidents. He determined that there was one soldier,
soldier A, who was involved in a fatal shooting and whose statement made for the
purposes of the other incident and the findings of the Inquest into the death
that occurred as a result of the other incident should be disclosed to the
applicant.
[8] The Coroner emphasised that his
ruling did not represent a final determination on whether the material disclosed
could be deployed in the examination of witnesses in the course of the Inquest,
thus indicating that he will be revisiting the issue of relevance and the use of
the material at the Inquest. He further stated that prior to the evidence
of soldier A he would hear further submissions on whether evidence relating to
the other incident was relevant and if so whether the material should properly
be introduced at the hearing or whether it should be excluded. It is
against this ruling of 8 March 2012 that this application is made for leave to
apply for Judicial Review.
[9] Further to the Coroner’s ruling
there has been disclosure to the applicant of the statement made by soldier A in
relation to the other incident in which he opened fire and the finding of the
jury at the Inquest into the death that occurred in that other incident.
[10] The material sought by the applicant is this.
In relation to soldier A the Coroner has ordered production of the
soldier’s statement and the Inquest finding in the other incident in which
soldier A discharged his weapon and nothing further is required in relation to
that incident. However soldier A admitted involvement in another incident in
which he did not open fire and the applicant seeks information in relation to
the identifying features of that case and the role of soldier A. Secondly, in
relation to soldiers C, D and G who indicated their involvement in other matters
but gave no details, the applicant seeks information as to the identifying
features of the other incidents and the role of each soldier. Thirdly, in
relation to soldiers B, E and I who were the silent soldiers, the applicant
contends that they should be required to make statements which would indicate
whether they had any involvement in any other such incidents resulting in death
and where that is so they too should provide the identifying features of the
incident and the role of the soldier.
[11] The applicant relied on O’Brien v Chief
Constable of South Wales Police [2005] UKHL 26, a claim for damages for
misfeasance in public office and malicious prosecution. The issue arose of the
relevant police officers having been involved in similar previous incidents.
Lord Bingham stated –
“4. That evidence of what happened on an earlier occasion may make the
occurrence of what happened on the occasion in question more or less probable
can scarcely be denied. …And if those engaged in the recent event had in the
past been involved in events of an apparently similar character, attention would
be paid to those earlier events as perhaps throwing light on and helping to
explain the event which is the subject of the current inquiry. To regard
evidence of such earlier events as potentially probative is a process of thought
which an entirely rational, objective and fair minded person might, depending on
the facts, follow. If such a person would, or might, attach importance to
evidence such as this, it would require good reasons to deny a judicial
decision-maker the opportunity to consider it. … Thus in a civil case such
as this the question of admissibility turns, and turns only, on whether the
evidence which it is sought to adduce, assuming it (provisionally) to be true,
is in Lord Simon’s sense probative. If so, the evidence is legally
admissible. That is the first stage of the enquiry.
5. The second stage of the enquiry requires the case management judge or the
trial judge to make what will often be a very difficult and sometimes a finally
balanced judgment: whether evidence or some of it (and if so which parts of
it), which ex hypothesi is legally admissible, should be admitted.”
[12] The applicant translates Lord Bingham’s
approach into the Inquest setting and argues that information relating to
similar incidents in which the soldiers were involved is potentially probative
and relevant to the present Inquest and further that such material should be
admitted in evidence. However the present issue, as Ms Doherty for the
applicant was at pains to emphasise, precedes the two stages discussed by Lord
Bingham in that she seeks information to be disclosed to the applicant to enable
submissions to be made to inform the Coroner’s decision in the present Inquest
as to the relevance of each soldier’s involvement in other incidents. Ms Doherty
therefore contends that the Coroner’s ruling of 8 March 2012, which was made
without the benefit of the applicant’s informed submissions, the applicant not
having access to the information requested, should be set aside.
[13] It appears to be the position that the
Coroner made his ruling with knowledge of the nature of each incident in which
each soldier was involved and the role of each soldier in that incident, the MoD
having provided that information in the table sent to the Coroner, the Coroner
having the personnel file for each soldier together with the Inquest papers in
respect of each incident. Ms Doherty questioned whether that was indeed the case
because the letter from the Coroner to the Crown Solicitor’s Office seeking
further particulars might have been interpreted as referring only to those
soldiers who disclosed involvement in other incidents and not extending to the
soldiers who were silent in relation to other incidents. However the
Coroner indicated in his ruling that he looked at the personnel files of all the
soldiers and examined the other incidents and I assume therefore that the
Coroner considered the material in relation to the three silent soldiers as well
as the others.
[14] Thus the material that is now sought by Ms
Doherty on this application for leave to apply for Judicial Review is cast in
much narrower terms than appears in the Order 53 Statement.
[15] The Inquest commenced today, a schedule of
witnesses having been drawn up for some time, soldiers have been identified as
witnesses, some of them no doubt have left the army and are no longer subject to
the instructions of the MoD, some may still be serving in the army and may be
abroad, some will be present to give evidence and some are available by video
link from other parts of the world. Detailed arrangements have been put in
place. All parties are anxious that nothing should be done to interfere with the
conduct and progress of the Inquest finally taking place after 20 years.
[16] The proposed respondent, the Coroner,
contends that he has complied with his obligations in relation to the disclosure
of information and has made a decision that should not be set aside. The
notice party, the MoD, agrees and adds that this application amounts to
satellite litigation and that accordingly the Court should not interfere with
the decision of the Coroner or the conduct of the Inquest while it is at hearing
and that any challenge in relation to issues arising in the course of the
Inquest should await the conclusion of the Inquest. At that stage it might be
determined whether the overall proceedings warrant review by the Court. Mr
Maguire for the MoD contended that, were it to be otherwise every ruling made by
the Coroner would potentially provide a basis for a challenge by way of Judicial
Review, an outcome that would be potentially disruptive to the conduct of the
Inquest.
[17] Reference was made to a number of cases where
the courts have expressed concerns about Judicial Review coming into play in the
course of other proceedings, although as Ms Doherty pointed out it is not
apparent that there has ever been a case where that issue has been a ground for
refusal to make an order in Judicial Review proceedings where that was thought
to be appropriate.
For example in O’Connor and Broderick’s Application [2005] NIQB 40, a
Judicial Review challenge to police disciplinary proceedings, it was stated at
paragraph 24 that only in exceptional circumstances would it be appropriate for
Judicial Review proceedings to take place in the course of criminal proceedings
and that all issues should be dealt with in the proceedings whether at trial or
on appeal. Similarly in disciplinary proceedings the issues that arise should be
dealt with in the proceedings, whether at the initial hearing or on review or on
appeal where permitted, and normally Judicial Review would only be appropriate
at the conclusion of those disciplinary proceedings.
Similarly in Howard’s
Application [2011] NIQB 125, a Judicial Review of Inquest proceedings,
Treacy J stated at paragraph 41 that the introduction of public law
challenges during the lifetime of an Inquest can seriously disrupt the progress
of the inquest and endanger the requirement of promptitude. The proper
course in most cases must be to wait until the conclusion of the inquest and, if
unhappy with its outcome, to make a public law challenge if merited at that
stage. In those necessarily exceptional cases where a challenge can be
justified before the conclusion of the Inquest, adherence to the requirement of
promptness in Order 53 is of particular importance.
Again in McLuckie’s
Application [2011] NICA 34, another Judicial Review of Inquest proceedings,
Higgins LJ stated in the Court of Appeal –
“[26]
The application for judicial review in this case and the appeal therefrom are a
further example of satellite litigation in relation to inquest proceedings. Such
satellite litigation has caused many delays in the inquest system. A culture has
developed whereby decisions by coroners in preparation for and during the
conduct of inquest proceedings are frequently and immediately challenged by way
of judicial review. On occasions this can lead to protracted delays in the
inquest process frustrating the purpose of an inquest. In this instance the
Inquest was about to commence with witnesses assembled, some coming from
overseas, and time had been set aside for the inquest to be conducted. In the
context of criminal proceedings the law and the practice of the court in
judicial review proceedings have been to discourage satellite judicial review
proceedings, leaving challenges to decisions made during the course of the
criminal proceedings in the main to be considered at the conclusion of the trial
process. We feel compelled to question why different considerations should apply
in the context of coroners’ inquests. When an inquest results in a verdict that
verdict may itself be challenged in an application for judicial review but that
will be at a time when the court will have the benefit of appreciating the whole
context of the inquest. What may appear to be of potential or theoretical
importance during preliminary hearings or inquest proceedings before the
Coroner, and which often leads to satellite litigation, may turn out to be of no
such importance in the overall context of the inquest. Procedural errors during
the course of the inquest, if and when they occur, may not undermine the
ultimate integrity of the inquest or the ultimate verdict.”
[18] Had this Inquest not already commenced I
would have been minded to grant leave in relation to the soldiers B, E and I,
the silent soldiers, in relation to disclosure of further information by
statement and in relation to all soldiers who identified their involvement in
previous events, to provide the identifying features and their role in relation
to the other incidents.
[19] However I have been persuaded that it would
be not appropriate to do so because of the timing of the application for
Judicial Review. The Inquest having commenced today I consider it to be
inappropriate that there should be Judicial Review proceedings that may
interfere with the conduct and progress of the Inquest. I appreciate that
it may be said that the grant of leave or the making of the Order that is sought
would not of themselves interfere with the progress of the Inquest. However any
such step would open up issues in relation to other incidents beyond the role of
soldier A in the incident where he opened fire. Had this application been taken
up months ago there might have been an opportunity to progress further inquiries
in relation to other incidents and to complete those inquiries before the
commencement of the Inquest. However once the Inquest has commenced, after years
of waiting, it should not be disrupted by other proceedings unless there are
exceptional circumstances. There is nothing exceptional about the present
application that would warrant the grant of leave at this stage.
[20] Further the Coroner has expressed the view
that he has not made a final decision in relation to relevance and presumably
has not made a final decision in relation to the information that might be
produced for his consideration or that he might require to be produced to the
applicant or that will be put before the jury or in relation to the questions
that might be asked of the witnesses. There remains scope within the present
Inquest for a review of the information relating to the soldiers and their role
in any incident. That would of course also have the potential for
disruption of the Inquest but it places in the hands of the Coroner the
management of the Inquest and the management of the information required to be
produced. The Coroner, with day to day charge of the conduct of the proceedings,
should be better placed to determine how to manage the process and the
information required and the witnesses concerned. Ultimately he remains subject
to the supervisory jurisdiction of the Court.
[21] The outcome is that I refuse leave to apply
for judicial review of the decision of the Coroner of 8 March 2012.
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