Adams, In the Matter of [2000] NIQB 14 (7th June, 2000)
7 June 2000
GILC3206 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 DAVID ADAMS
FOR JUDICIAL REVIEW
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GILLEN J
1. The applicant in this case is
David Adams. He has instituted these proceedings for the
purpose of seeking judicial review of two decisions of the
Director of Public Prosecutions ("DPP") made on
6 August 1999 and 7 September 1999. It is claimed that in
the course of these decisions the DPP declined to direct a
prosecution against any police officer involved in the
arrest, assault and detention of the applicant on 10 February 1994
and that he failed to provide adequate and intelligible
reasons for his decision.
2. On 10 February 1994 a planned
police operation took place in Belmont Avenue,
Belfast to foil a terrorist attack which, according to
intelligence reports, was to occur that morning. The
police were successful in preventing the attack and in
arresting those involved one of whom was the applicant in
this case. He and the others who were arrested with him
were convicted on 17 May 1995 of a number of serious
criminal offences including conspiracy to murder. They
were sentenced to lengthy terms of imprisonment. The
plaintiff alleged that after he had been apprehended by
the police, he was subjected to a series of assaults by
them. The violence inflicted on him was, he claimed,
wholly unnecessary to effect his arrest. He instituted
civil proceedings for compensation against the Chief
Constable of the Royal Ulster Constabulary ("the
Chief Constable"). On 18 February 1998 he
obtained £30,000 damages on foot of an award made to him
by Kerr J. In the course of his conclusions Kerr J
said at page 42 of his judgment:
"There are elements of the plaintiff's story which I
do not believe as I have made clear in my commentary on
his evidence. I have not been persuaded of the accuracy of
other parts of his story. I consider that he may well have
exaggerated his description of the number of blows that he
was struck. I have concluded however that the essential
core of his version of how he was injured must be
accepted."
3. A police investigation file in
respect of allegations of criminal conduct against police
officers made by the applicant was received by the DPP
from the Royal Ulster Constabulary on 29 July
1994. Following completion of the criminal proceedings
against the applicant a direction of no prosecution was
issued to the Chief Constable. Subsequent to the
judgment of Kerr J in February 1998 and following a
request from the applicant's solicitors, Madden &
Finucane, a further interim direction was issued by the
DPP to the Chief Constable on 27 February 1998 asking
whether police intended to carry out further
investigations in light of the judgment. On 11 March 1998
the DPP was informed by the Chief Constable that the
circumstances of the case had been referred to the
Independent Commission for Police Complaints ("ICPC")
who had agreed to supervise a further investigation. The
DPP was further informed that the Chief Constable had
asked the Chief Constable of Strathclyde Police to
nominate a suitable investigating officer. Pursuant to
this, Assistant Chief Constable James Orr was
nominated and approved by the ICPC ("ACC Orr").
On 16 December ACC Orr's report was submitted to the DPP's
office by the Chief Constable accompanied by a
certificate from the ICPC dated 8 December 1998 stating
that, in the opinion of the ICPC, the investigation had
been comprehensive and carried out extremely thoroughly to
the satisfaction of the Commission.
4. In an affidavit on behalf of the
respondent dated 10 December 1999 sworn by Alan White,
barrister at law, ("White's first affidavit") he
averred that he had considered the investigation file of
ACC Orr which contained a number of sections and
which are set out between paragraphs 17 and 22 of his
affidavit. At paragraph 24 he averred that he had briefed
senior counsel with the papers and asked him to consult
with whichever witnesses he considered necessary and
advise whether there was a reasonable prospect of
convicting any police officer of an assault on the
applicant or any other criminal offence arising from the
facts and circumstances reported. At paragraph 27 he
averred that on 7 May 1999 senior counsel and himself
consulted with the independent forensic pathologist and a
police officer on observation duty on 10 February 1994
(both of which pieces of evidence had not been heard at
the civil proceedings). Mr White averred at paragraph 30
that he had concluded there was insufficient evidence to
afford a reasonable prospect of obtaining a conviction of
any police officer involved in the events in question for
any criminal offence. On 6 August a direction of no
prosecution issued to the Chief Constable. This is the
first decision that forms the subject of this judicial
review.
5. Between August and November 1999
correspondence was exchanged between the DPP's office and
the applicant's solicitors and two human rights
organisations. In the course of the correspondence the
Director was requested to explain in detail the basis of
the direction for no prosecution. By way of letter dated 7
September 1999 Mr White reiterated that the
decision of no prosecution had been issued on 6 August 1999.
He refused to make public the report of ACC Orr or the
information contained in the police investigation file.
The applicant argues that he also failed to provide what
the applicant has characterised as adequate and
intelligible reasons for his decision not to direct a
prosecution against any police officer involved in his
arrest, assault and detention. This is the second decision
that is challenged.
6. By this application the
applicant challenges both decisions. He seeks an order of
certiorari to quash the decisions, a declaration that the
decisions were unlawful and an order of mandamus directed
to the DPP requiring him to make a determination in this
matter in accordance with correct principles of law and
practice and taking into account all relevant matters.
7. In its original form, the
statement served on behalf of the applicant under Order 53
of the Rules of the Supreme Court (Northern Ireland) 1980
adumbrated the following main grounds:
(a) That the evidence available was manifestly sufficient
to warrant the prosecution of the police officers involved
in the assaults on the applicant as reflected in the
findings of the learned trial judge in the civil action. A
series of findings of the trial judge is then outlined.
(b) That the Director mis-directed himself in law and four
respects in which he had so mis-directed himself are set
out.
(c) That the Director had failed to take into account a
number of matters which are therein set out.
(d) That the Director had taken into account and had given
undue weight to a number of matters which are therein set
out.
(e) That the Director had applied the wrong test, namely
the test for prosecution applicable generally in cases of
suspected offenders rather than a test that gave proper
weight to special factors in cases of alleged police mis-conduct.
(f) That the Director had failed to act fairly in arriving
at the said decision in that he failed to make available
to the applicant copies of either Assistant Chief
Constable Orr's report of his investigation or the
written advices of senior counsel on the merits of a
prosecution and had failed to give the applicant a proper
opportunity to make informed representations in the light
of the said report and advices.
(g) That the Director had failed to provide adequate and
intelligible reasons for his decision not to prosecute.
(h) That the decisions were completely unreasonable in all
the circumstances and were wrong in law.
8. On 3 March 2000, by order of
Kerr J, the Order 53 statement was amended to include the
following grounds:
(i) The decision of 6 August 1999 was tainted by bad faith
on the part of the Royal Ulster Constabulary.
(j) The respondent failed to take any or adequate account
of the applicant's human rights and thereafter outlined a
number of human rights which he alleged had been ignored.
9. In the course of the hearing, on
8 March 2000 I permitted a further amendment. Whilst I
consider that leave to amend a grounding statement will
only be granted in exceptional circumstances, I consider
that in this instance it was necessary to determine the
issues in suit between the parties. The amendments were as
follows:
(k) The Director failed to apply his own policy concerning
reasons in that he failed to take any or adequate account
of the individual distinguishing features of the case
which would or could have warranted a departure from his
normal practice of not providing reasons. Thereafter
seventeen failures were alleged.
(l) The Director erred in his approach to the question
whether he ought to provide reasons in this case in that
he applied the wrong test to the determination of the
question namely whether the provision of reasons would
have some of the undesirable consequences outlined in
paragraph 34 of Mr White's affidavit instead of the
correct test, namely whether the particular circumstances
of this case as specified warranted a departure from the
normal practice.
10. Mr Harvey QC, who appeared on
behalf of the applicant with Mr Macdonald, founded his
case on two broad submissions. First, that the DPP had
failed to provide reasons why a prosecution was not
brought in this case. The decision to refuse to give
reasons he argued was a free standing issue which can and
should be the subject of judicial review. Secondly, he
submitted that the decision not to prosecute, taken in the
absence of reasons, was irrational and unlawful. In making
his case he relied on a number of arguments which I shall
deal with in the course of this judgment. He indicated at
the outset that he was relying also on the submissions to
be made by Mr Treacy BL who had obtained leave from Kerr J
to intervene in these proceedings on behalf of the
Northern Ireland Human Rights Commission (hereinafter
referred to as "HRC").
11. The general principles which
have substantially governed my consideration of the
arguments put before me in this matter are as follows:-
1. The nature of judicial review
12. It is trite law to state that
an application for judicial review is not an appeal. In
particular it is not an appeal against the merits of the
decision being challenged. In general that means that
conclusions of fact, judgment and discretion are
undisturbable. The court will review the way in which a
decision has been made to determine whether there has been
unlawfulness, unreasonableness or unfairness. This has
recently been restated by Lord Clyde in Reid v
Secretary of State for Scotland (1999) 1 AER 506:
"Judicial review involves a challenge to the legal
validity of the decision. It does not allow the court of
review to examine the evidence with a view to forming its
own opinion about the substantial merits of the case. It
may be that the tribunal whose decision is being
challenged has done something which it had no lawful
authority to do. It may have abused or misused the
authority which it had. It may have departed from the
procedures which either by statute or at common law as
matter of fairness it ought to have observed. As regards
the decision itself it may be found to be perverse or
irrational or grossly disproportionate to what was
required. Or the decision may be found to be erroneous in
respect of a legal efficiency, as for example, through the
absence of evidence or of sufficient evidence to support
it or through account being taken of irrelevant matter or
through a failure for any reason to take account of a
relevant matter or through some mis-construction of the
terms of the statutory provision which the decision-maker
is required to apply. But while the evidence may have to
be explored in order to see if the decision is vitiated by
such legal deficiencies it is perfectly clear that in a
case of review, as distinct from an ordinary appeal, the
court may not set about forming its own preferred view of
the evidence."
2. The trend towards openness
13. In recent cases on judicial
review, a trend towards an increasing insistence on
greater openness in matters of government and
administration may be discerned. Moreover that momentum
seems to have generated a greater willingness to intervene
in cases where reasons have not been given and an
increased recognition of the duty on decision-makers of
various types to furnish reasons. In Doody v Secretary
of State for the Home Department (1993) 3 AER 92 at
page 107E (" Doody's case") Lord Mustill
said:
"I find in the more recent cases on judicial review a
perceptible trend towards an insistence in greater
openness, or if one prefers the contemporary jargon ´transparency',
in the making of administrative decisions."
14. More recently in Stefan v
G.M.C. (1999) 1 WLR page 1300 (" Stefan's
case") Lord Clyde said:
"The trend of the law has been towards an increased
recognition of the duty upon decision-makers of many kinds
to give reasons. This trend is consistent with current
developments towards an increased openness in matters of
government and administration."
3. The circumstances in which there is a duty to give
reasons
15. An assessment of such
circumstances must commence by recognising that despite
the trend towards recognition of the duty to give reasons,
a court must not lose sight of the established position of
the common law that there is no general duty to give
reasons for administrative decisions universally imposed
on all decision-makers. (See Stefan's case and Doddy's
case). This must be tempered to some extent by the remarks
of Lord Clyde in Stefan's case at page 1301A:
"There is certainly a strong argument on the view
that what were once seen as exceptions to a rule may now
be becoming examples of the norm and the cases where
reasons are not required may be taking on appearance of
exceptions. But the general rule has not been departed
from ..."
16. Against this background, the
following principles may be deduced in approaching the
circumstances where a duty to give reasons arises:
(i) When a statute has conferred on anybody the power to
make decisions affecting individuals, the court will not
only require the procedures prescribed by statute to be
followed, but will readily imply so much and no more to be
introduced by way of additional procedural standards as
will ensure the attainment of fairness ( R v Civil Service
Appeal Board ex p. Cunningham (1991) 4 AER 310 ("
Cunningham's case") and R v Ministry
of Defence ex p. Murray (1998) COD page 134 (" Murray's
case").
(ii) In Stefan's case where the body making the
decision was exercising a judicial function, Lord Clyde
dealt with the common law principles at page 1300E:
"But it is well established that there are exceptions
where the giving of reasons will be required as a matter
of fairness and openness. These may occur through the
particular circumstances of a particular case. Or, as was
recognised in Reg v Higher Education Funding Council,
ex parte Institute of Dental Surgery (1994) 1 WLR 242,
263, there may be classes of cases where the duty to give
reasons may exist in all cases of that class. Those
classes may be defined by factors relating to the
particular character or quality of the decisions, as where
they appear aberrant or to factors relating to the
particular character or particular jurisdiction of a
decision-making body, as where it is concerned with
matters of special importance such as personal
liberty."
(iii) I observe that a not dissimilar approach was adopted
by Sedley J in R v Higher Education
Funding Council ex parte Institute of Dental Surgery (1994)
1 AER 651 (" Higher Education
case"). This case dealt specifically with the duty of
administrative bodies to give reasons for their decisions
either on grounds of fairness or simply to enable any
grounds for judicial review of a decision to be exposed.
Sedley J said at page 670C:
"But purely academic judgments, in our view, will as
a rule not be in the class of case exemplified (though by
no means exhausted) by Doody's case, where the
nature and impact of the decision itself calls for reasons
as a routine aspect of procedural fairness. They will be
in the Cunningham case class, where some trigger
factor is required to show that, in the circumstances of
the particular decision, fairness calls for reasons to be
given."
17. Mr Smith QC criticised this
part of the judgment as introducing an all too vague
category of "trigger factors" which he submitted
was devoid of ascertainable meaning. I consider, however,
that the court was not introducing a separate entity by
referring to trigger factors, but simply indicating the
manner in which the court should approach identifying a
class of case where there is a duty to give reasons.
Recognition of such a class is "triggered" for
example by an issue of personal liberty or an obviously
aberrant decision.
18. In this context Sedley J
helpfully proposed a number of factors in favour of giving
reasons and factors not in favour of requiring reasons at
page 665J:
"The giving of reasons may among other things
concentrate the decision-maker's mind on the right
questions; demonstrate to the recipient that this is so;
so that the issues have been conscientiously addressed and
how the result has been reached; or alternatively alert
the recipient to a justiciable flaw in the process. On the
other side of the argument, it may place an undue burden
on decision-makers; demand an appearance of unanimity
where there is diversity; call for the articulation of
sometimes inexpressible value judgments; and offer an
invitation to the captious to comb the reasons for
previously unsuspected grounds of challenge. It is the
relationship of these and other material considerations to
the nature of the particular decision which will determine
whether or not fairness demands reasons. In the light of
such factors each case will come to rest between two
poles, or possibly one of them: the decision which cries
out for reasons and the decision for which reasons are
entirely inapposite."
(iv) Murray's case largely reflects the principles
that I have already set out. The Divisional Court at page
136 stated inter alia:
"(e) In deciding whether fairness requires a tribunal
to give reasons, regard will be had not only to the first
instance hearing but also to the availability and the
nature of any appellate remedy or remedy by way of
judicial review:
(i) the absence of any right of appeal may be a factor in
deciding that reasons should be given ( Cunningham
at 322J);
and
(ii) if it is ´important' that there should be an
effective means of detecting the kind of error (by way of
judicial review) which would entitle the court to
intervene then the reasoning may have be to disclosed.
(f) The fact that a tribunal is carrying out a judicial
function is a consideration in favour of a requirement to
give reasons and particularly where personal liberty is
concerned.
(g) If the giving of a decision without reasons is ´insufficient
to achieve justice' then reasons should be required."
4. Standard of reasons required
19. It is difficult to state with
any degree of precision the standard of reasoning a court
will demand. Much depends upon the particular
circumstances and the statutory context in which the duty
to give reasons arises. Consequently the courts have not
attempted to define a uniformed standard or threshold
which the reasons must satisfy. Assistance may be gained
as to the form which a decision should take from In the
Matter of an Application by the Fair Employment Commission
for Northern Ireland for Judicial Review (1990)
10 NIJB 38 (per Carswell J as he then was), Cunningham's
case, Doody's case, Higher Education case
and In the Matter of an Appeal by Kevin Farrell against
the Refusal of Leave to Apply for Judicial Review (unreported,
Court of Appeal in Northern Ireland, 29 June 1996 per
Nicholson LJ) and the authorities therein discussed.
However, I consider that one cannot do better than refer
to the observations by Lord Clyde in Stefan's
case:
"The extent and substance of the reasons has to
depend upon the circumstances. They need not be elaborate
or lengthy. But they should be such as to tell the parties
in broad terms why the decision was reached. In many cases
very few sentences should suffice to give such explanation
as was appropriate to the particular situation".
5. Fairness
20. The applicant in this case has
submitted in paragraph 3F of his statement that in
addition to the failure on the part of the director to
furnish any or adequate reasons, he has failed to act
fairly in arriving at the said decision in that he failed
to make available to the applicant copies of either
Assistant Chief Constable Orr's report of the
investigation or the written advices of senior counsel on
the merits of the prosecution. The latter point with
reference to senior counsel's opinion was abandoned by Mr
Harvey QC in the course of submissions. The statement goes
on to submit that the Director failed to give the
applicant a proper opportunity to make informed
representations in the light of the said report and
advice. It is appropriate, therefore, that I should
consider the general principles governing the concept of
procedural fairness in judicial review.
21. The trend towards greater
openness is reflected in the requirements of fairness. The
duty of fairness is a flexible and evolving concept. Mr
Smith QC on behalf of the respondent submitted to me that
procedural fairness only arises where a decision confers a
benefit or an advantage on another person. Whilst such
circumstances will be most compelling, as a general
proposition I consider this to be too restrictive and
inflexible. Lord Mustill in Doody's case said of
the concept of fairness at page 106E:
"What does fairness require in the present case. My
Lords, I think it unnecessary to refer by name or to quote
from any of the often cited authorities in which the
courts have explained what is generally an intuitive
judgment. They are far too well known. From them I derive
the following.
(1) Where an act of Parliament confers an administrative
power there is a presumption that it will be exercised in
a manner which is fair in all the circumstances.
(2) The standards of fairness are not immutable. They may
change with the passage of time, both in the general and
in their application to decisions of a particular type.
(3) The principles of fairness are not to be applied by
rote identically in every situation. What fairness demands
is dependant on the context of the decision, and this has
to be taken into account in all its respects.
(4) An essential feature of the context is the statute
which creates the discretion, as regards both its language
and the shape of the legal and administrative system
within which the decision is taken.
(5) Fairness will very often require that a person who may
be adversely affected by the decision will have an
opportunity to make representations on his behalf either
before the decision is taken with a view to producing a
favourable result or after it is taken, with a view to
procuring its modification or both.
(6) Since the person effected usually cannot make
worthwhile representations without knowing what factors
may weigh against his interests fairness will often
require that he is informed of the gist of the case which
he has to answer".
22. The path of the authorities
and the modern trend is traced in such leading textbooks
as De Smith, Woolf & Jowell on Judicial Review of
Administrative Action, 5th Edition at page 404 where
the author states:
"Surely the time has come to recognise that the duty
of fairness cannot and should not be restricted by
artificial barriers or confined by inflexible categories.
The duty is a general one governed by the following
propositions:
(1) Where a public function is being performed there is an
inference in the absence of express requirement to the
contrary that the function is required to be performed
fairly.
(2) The inference will be more compelling in the case of
any decision which may adversely effect a persons rights
or interests or when a person has a legitimate expectation
of being fairly treated.
(3) The requirement of a fair hearing will not apply to
all situations of actual detriment. There are clearly some
situations where the interest affected will be too
insignificant or too speculative or too remote to qualify
for a fair hearing.
(4) Special circumstances may create an exception which
negatives the inference of a duty to act fairly. The
inference can be rebutted by the needs of national
security or because of other characteristics of the
particular function. For example, a decision to allocate
scarce resources amongst a large number of contenders
which need to be made with dispatch may be inconsistent
with an obligation to hold a fair hearing.
(5) What fairness requires will vary according to the
circumstances ... (there are) a large variety of decisions
which, because of the nature of the issues should be
determined or the seriousness of their impact upon
important interests, require some kind of a hearing (which
may not even involve oral representations) but not
anything that has all the characteristics of a full trial.
(6) Whether fairness is required and what is involved in
order to achieve fairness is for the decision of the
courts as a matter of law. The law is not one for the
discretion of the decision-maker. The test is not whether
no reasonable body would have thought it proper to
dispense with a fair hearing. The Wednesbury reserve has
no place in relation to procedural impropriety".
23. I consider, therefore, that
the concept of fairness is an evolving one and its
standards are not immutable. I accept the proposition of
Mr Harvey QC on behalf of the applicant that where
procedural fairness is required the Wednesbury test is
inappropriate. The test is not whether the court considers
that no reasonable body would have so acted. Rather the
test is simply whether or not the body has acted with
procedural fairness. Moreover I endorse the view that
whilst fairness is dependant on the context of the
decision nonetheless the standards of fairness may, where
they are unclear or incomplete, move or change with the
grain of our times. It is in this context that
international standards do fall to be considered. Counsel
for the respondent has criticised this approach on the
basis that it creates uncertainty and vagueness which in
essence should be anathema to legal principle. One must be
mindful however of what Lord Reid said in Ridge v
Baldwin (1964) AC 40 at page 64/65:
"In modern times opinions have sometimes been
expressed to the effect that natural justice is so vague
as to be practically meaningless. But I would regard these
as tainted by the perennial fallacy that because something
cannot be cut and dried or nicely weighed or measured
therefore it does not exist".
24. Judicial review, therefore,
will naturally search for precision as an aid to the
prediction and prescription of administratively fair and
correct procedures but it cannot afford to abandon
flexibility as a principle. The evolving nature of the
standards of fairness and the trend in favour of openness
was illustrated to me by Mr Treacy with two further
current examples. First, in a Home Office circular of 28
April 1999 entitled "Deaths in police custody:
guidance to the police on pre-inquest disclosure".
This circular recognises the need in such inquests for
pre-inquest disclosure to the family of the deceased
including in some instances, where it is in the public
interest, even the investigating officer's report.
Secondly, the Review of the Criminal Justice System in
Northern Ireland. Whilst this is not a legal document and
without standing as a precedent, it espouses the need for
a prosecutor to give as full an explanation as possible to
someone with a proper and legitimate interest in a case as
to why there has been no prosecution "without
prejudicing the interests of justice or the public
interest". It recommends that the presumption should
shift towards giving reasons where appropriate (see
paragraph 4.167).
6. International standards
25. As a general proposition there
is merit in the suggestion that the common law or public
law standards, the boundaries of which are not immutable
and which do tend to evolve with the passage of time,
should be open to guidance from relevant international
standards and principles where there is uncertainty,
ambiguity or incompleteness in the law. Insofar as the
concept of fairness is an evolving one, that evolution can
take these standards into account in the course of a
restrained review at domestic as well as at the
international level.
26. In this context the Northern
Ireland Human Rights Commission(“HRC”) sought and
obtained leave from Kerr J to intervene in the above
proceedings. Mr Harvey QC, who appeared on behalf of the
respondent, indicated that he wished to adopt the
arguments of the HRC as part of his case and did not
intend himself to deal with this aspect. For this reason I
permitted the HRC to make oral representations in addition
to their written submissions. My ruling therefore should
not be taken as a precedent for similar applications to
intervene in future cases. In normal circumstances written
submissions may well suffice to fulfil the role of an
intervener where leave has been granted. Mr Treacy BL, who
appeared on behalf of the HRC, invited the court to take
into account a number of European and international
standards. In a well presented argument it was his
submission that whilst the court was not bound in each
instance to take them into account they ought to provide
appropriate guidance in my approach to current common law
or public law standards. His submissions were:-
1. That the European Convention for the Protection of
Human Rights and Fundamental Freedoms (1953) (hereinafter
called "the Convention") is a source of such
guidance. He relied on Article 2 of the Convention which
guarantees the right to life. In McCann and others
v UK (1996) 21 EHRR 97 there is authority for the
proposition that Article 2 had to be applied so as to make
the safeguards practical and effective. The obligation to
protect the right to life under this provision, read in
conjunction with the State's general duty under Article 1
of the Convention "to secure to everyone within their
jurisdiction the rights and freedoms defined in the
Convention", required by implication that there
should be some form of effective official investigation
when individuals had been killed as a result of the use of
force by, inter alios, agents of the State. Mr Treacy
argued that Article 2 was a fundamental right which,
together with Article 3 which provides that no-one shall
be subjected to torture or to inhuman or degrading
treatment or punishment, enshrines some basic values of
democratic societies making up the Council of Europe. He
drew to my attention that unlike most provisions of the
Convention, Article 3 is not subject to any
exceptions under Article 15 of the Convention.
2. That Articles 2 and 3 embodied procedural safeguards
intended to ensure that the substantive rights guaranteed
by these provisions are practical and effective. He
outlined examples of this as follows:
(a) Aydin v Turkey (1998)
25 EHRR 251 (" Aydin's case"), Aksoy
v Turkey (1997) 23 EHRR 553, para 95 (" Aksoy's
case") and Assenov v Bulgaria (1999) 28 EHRR 652
(" Assenov's case") were authority for
the proposition that a notion of an effective remedy for a
breach of Article 3 entails, in addition to payment of
compensation, a thorough and effective investigation
capable of leading to the identification and punishment of
those responsible.
(b) Aydin is authority for the proposition that
effective access on the part of the complainant to the
investigatory procedure is also necessary. It is
noteworthy at this stage however to observe that Aydin's
case does not appear to define what the nature of that
access to the investigatory procedure should be.
(c) Gulec v Turkey (1999) 28 EHRR 121 paras 77 and
78 and Ogur v Turkey Application No 21594/93
judgment of the court 20 May 1999 (" Ogur's
case") were authorities for the proposition that
investigations must be independent and public and that the
victim's family should have a role in the investigation
including access to the case file. In particular in the Ogur
case, pages 6, 7, 10 and 12 of that judgment reveal that
the court at least had been given access to incident
reports signed by members of the security forces who had
been engaged in the shooting of the applicant's son, plans
of the scene, investigations of the scene by the
Prosecutor, reports of the senior police officer and a
schedule of the documents in the case file prepared by the
Public Prosecutor together with documents from the
investigation carried out by the investigating officer.
3. That in the instant case, where he submitted the
applicant had been subjected to torture or inhuman or
degrading treatment by police officers, the notion of an
effective remedy should include a thorough and effective
investigation capable of leading to identification and
punishment of those responsible including effective access
to the whole investigatory procedure (see p 654 of Assenov's
case). It was his submission that this had not been done
and that the investigation process by the Director of
Public Prosecutions had been lacking in transparency.
4. That the applicant was entitled in common law to and
had been deprived of an effective redress and remedy, an
effective review process, access to an independent process
of investigation, a prompt and impartial investigation and
proper treatment as a victim. He drew my attention to, and
I have read, the following international instruments:
(a) Article 13 of the Convention.
(b) Principles 22-24 of the United Nations Basic
Principles on the Use of Force and Firearms by Law
Enforcement Officials.
(c) Principle 4 of the United Nations Body of Principles
for the Protection of All Persons under Any Form of
Detention or Imprisonment.
(d) The United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment,
Articles 2(1), Article 12, Article 13 and Article 14.1.
(e) The United Nations Declaration of Basic Principles for
Justice for Victims of Crime and Abuse of Power (1985).
(f) The United Nations Declaration on the Right and
Responsibility of Individuals, Groups and Organs of
Society to Promote and Protect Universally Recognised
Human Rights and Fundamental Freedoms (1996).
(g) The United Nations International Covenant on Civil and
Political Rights and the Declaration on the Police.
(h) The Moscow Declaration.
27. Mr McCloskey QC, who appeared
on behalf of the respondent with Mr Smith QC, in
an equally well presented argument, submitted that Mr
Treacy’s case was implausible in that it amounted to an
invitation to give effect to these rights by way of back
door incorporation. In essence Mr McCloskey’s argument
is that a national court in our legal system is not
competent to give effect to any of the international
instruments or treaties on which the respondent relies
unless they have been incorporated by legislation.
28. The genesis of the
respondent’s argument in this regard is Regina v Secretary of State
for the Home Department ex parte Brind and others (1991)
1 AC 696 (" Brind's case"). In this case,
the applicants sought to invoke Article 10 of the European Convention
in the face of a bar by the Home Secretary on the
broadcasting of the direct spoken words of members of
certain terrorist organisations in Northern Ireland.
The House of Lords however held that the
presumption that legislation complies with a treaty
obligation only applies in the case of a true ambiguity
and does not apply to limit the meaning of clear general
words. At page 747G, Lord Bridge said:
“It is accepted of course by the applicants that like
any other treaty obligations which have not been embodied
in the law by statute, the Convention is not part of the
domestic law, that the courts accordingly have no power to
enforce convention rights directly and that, if domestic
legislation conflicts with the Convention, the courts must
nevertheless enforce it. It is already well settled that,
in construing any provision in domestic legislation which
is ambiguous in the sense that it is capable of a meaning
which either conforms to or conflicts with the Convention,
the courts will presume that Parliament intended to
legislate in conformity with the Convention, not in
conflict with it. Hence, it is submitted, when a statute
confers upon an administrative authority a discretion
capable of being exercised in a way which infringes any
basic human right protected by the Convention, it may
similarly be presumed that the legislative intention was
that the discretion should be exercised within the
limitations which the Convention imposes. I confess that I
found considerable persuasive force in this submission.
But in the end I have been convinced that the logic of it
is flawed. When confronted with a simple choice between
two possible interpretations of some specific statutory
provision, the presumption whereby the courts prefer that
which avoids conflict between our domestic legislation and
our international treaty obligations is a mere canon of
construction which involves no importation of
international law into the domestic field. But where
Parliament has conferred on the executive an
administrative discretion without indicating the precise
limits within which it must be exercised, to presume that
it must be exercised within the Convention limits would be
to go far beyond the resolution of an ambiguity. It would
be to impute to Parliament an intention not only that the
executive should exercise the discretion in conformity
with the Convention, but also that the domestic courts
should enforce that conformity by the importation into
domestic administrative law of the text of the Convention
and the jurisprudence of the European Court of Human
Rights in the interpretation and application of it ....
When Parliament has been content for so long to leave
those who complain that the Convention rights have been
infringed to seek the remedy in Strasbourg, it would be
surprising suddenly to find that the judiciary had,
without Parliament’s aid, the means to incorporate the
Convention into such an important area of domestic law and
I cannot escape the conclusion that this would be a
judicial usurpation of the legislative function.”
29. It was Mr McCloskey’s
argument that only where there was ambiguity in English
primary or subordinate legislation could Convention or
treaty rights be deployed for the purpose of the
resolution of an ambiguity. Accordingly it was
impermissible to import such standards into the common law
even if, contrary to his assertion, the concept of
procedural fairness applied in this instance to the
Director’s decision. He argued that the principles of
fairness in the common law were settled and accordingly
ambiguity did not arise in their interpretation. Insofar
as there was text book authority and judicial authority to
the contrary, Mr McCloskey argued that such authority
either ignored Brind or betrayed a misunderstanding
of it. In his submission, the most recent opportunity for
the House of Lords to have modified Brind, if that
was their wish, arose in R v Director of Public
Prosecutions ex parte Kebeline and others (1999) 4 AER
801. This case considered the DPP’s continuing consent
to prosecute the applicants for offences under Section 16A
of the Prevention of Terrorism (Temporary Provisions)
Act 1989 in light of Article 6(2) of the European
Convention and pending the coming into force of Section
22(4) of the Human
Rights Act 1998. The applicants' argument was rejected
and Lord Steyn said at page 833B:
“There is a clear statutory intent to postpone the
coming into effect of provisions of the 1998 Act. A
legitimate expectation, which treats inoperative statutory
provisions as having immediate effect, is contradicted by
the language of the statute.”
30. Accordingly, Mr McCloskey
borrows this quotation to fuel his argument that
Parliament has now entered into this field and that in
this twilight period until the Human
Rights
Act 1998 is brought into effect, the boundaries are
clearer than ever between domestic law as it now applies
and the new law when it comes into effect. Finally, Mr McCloskey
argues that many of these international instruments relied
on by Mr Treacy do not even have the status of
treaties in international law and are therefore even
further removed from creating any guiding principles.
31. I consider that the
respondent’s argument imposes too great a constraint on
the development of the common law and too restrictive an
interpretation upon the view of the majority in Brind’s
case. In Derbyshire CC v Times Newspapers (1992) 1
QB 770, in a case dealing with the entitlement of a local
authority at common law to sue for libel to protect its
governing reputation, the Court of Appeal considered the
impact of Brind. At page 812B, dealing with Article
10 of the European Convention, Balcombe LJ said:
“Article 10 has not been incorporated into English
domestic law. Nevertheless it may be resorted to in order
to help resolve some uncertainty or ambiguity in municipal
law: per Lord Ackner in Reg v Secretary of State for
the Home Department, ex parte Brind (1991) 1 AC 696
... Article 10 may be used when considering the principles
upon which the courts should act in exercising a
discretion e.g. whether or not to grant an interlocutory
injunction per Lord Templeman and Lord Ackner in Attorney
General v Guardian Newspapers Limited (1987) 1 WLR
1248 ... Article 10 may be used when the common law (by
which I include the doctrines of equity) is uncertain. In Attorney General
v Guardian Newspapers Limited (No. 2) (1990) 1 AC 109
the courts at all levels had regard to the provisions of
Article 10 in considering the extent of the duty of
confidence. This did not limit the application of Article
10 to the discretion of the court to grant or withhold an
injunction to restrain a breach of confidence. Even if the
common law is certain the courts will still, when
appropriate, consider whether the United Kingdom is in
breach of Article 10.”
32. Later Balcombe LJ said at page
813B:
“In my judgment, therefore, where the law is uncertain,
it must be right for the court to approach the issue
before it with a predilection to ensure that our laws
should not involve a breach of Article 10.”
33. I do not consider that such an
approach does depart from the authority of Brind. I
am reinforced in this view by the judgment of Sedley J in
the case of R v Secretary of State
for the Home Department, ex parte McQuillan (1995) 4
AER page 400. This case involved the review of an
exclusion order under Section
5 of the Prevention
of Terrorism (Temporary Provisions) Act 1989
prohibiting the applicant from being in or entering Great Britain
on the ground that he was or had been involved in acts of
terrorism. The question arose as to whether the Secretary
of State’s decision contravened Articles 2 and 3 of
the European Convention recognising the right to life and
the right not to be subjected to inhuman treatment. Sedley
J said at page 42F:
“The principles and standards set out in the Convention
can certainly be said to be a matter of which the law of
this country now takes notice in setting its own
standards. ... Once it is accepted that the standards
articulated in the Convention are standards which both
march with those of the common law and inform the
jurisprudence of the European Union, it becomes
unreal and potentially unjust to continue to develop
English public law without reference to them.”
34. This appears to have been the
approach adopted by Kerr J in R v McMullan and others (unreported
4 October 1994). In that case, one of the issues before
the court, was whether the existence of a violation of the
European Convention was a factor within the embrace of the
broad discretion vested in the court by Section 11(3) of
the Northern Ireland (Emergency Provisions) Act 1973.
Having reviewed all the authorities, Kerr J said at page 12:
“In my judgment, therefore, where the law is uncertain,
it must be right for the court to approach the issue
before it with a predilection to ensure that our law
should not involve a breach of Article 10 (of the
Convention).”
35. These propositions have found
respectable support from a number of leading text books,
namely:
(a) De Smith, Woolf and Jowell, Judicial Review of
Administrative Action 5 th Edition at page
329/330.
(b) Brownlie on Principles of Public International Law 5 th
Edition at page 49.
(c) Lester and Pannick on Human Rights Law and Practice
1999 Edition at page 9 paragraph 1.31. At page 15 the
authors state:
"Prior to the coming into force of the Human Rights Act 1998,
the European Convention on Human Rights, although an
international treaty which binds the United Kingdom (and
obliges the United Kingdom as a matter of international
obligation to amend our laws and procedures where they are
found to have breached the Convention), therefore has a
limited, albeit important, effect in domestic law in
creating rights and duties. In particular:
´(1) Courts seeks to interpret ambiguous legislation
consistently with the Convention.
(2) Courts seek to apply the common law (where it is
uncertain, unclear or incomplete) and exercise judicial
discretions, consistently with the Convention.
(3) Although public authorities such as Ministers of the
Crown, exercising discretionary powers have no duty to
exercise such powers consistently with the Convention, the
human rights context is relevant to whether the Minister
or other public authority acted reasonably and had regard
to all relevant considerations.'"
(d) Harris, O’Boyle and Warbrick on the Law of the
European Convention on Human Rights 1995 Edition at
page 452.
(e) D J Harris “Cases and Materials in International
Law” 5 th Edition 1998 at page 91
paragraph 4.
36. Two basic tenets govern the
operation of these principles in this sphere. First, as
Lord Wilberforce said in Balthwayt v Baron Cawley (1976)
AC page 426:
“I do not doubt that conceptions of public policy should
move with the times and that widely accepted treaties and
statutes may point the direction in which such
conceptions, as applied by the courts, ought to move.”
37. Secondly, however, this must
be tempered by what Lord Simon said in the same case at
page 427:
“I must not be taken thereby to be implying that it is
for the courts of law to embark on an independent and
unfettered appraisal of what they think is required by the
public policy on any issue. Courts are concerned with
public policy only in so far as it has been manifested by
Parliamentary sanction or embodied in rules of law having
binding judicial force. As of such rules of law, Your
Lordships have the same power to declare, to bind and to
loose as in regard to any other judicial precedent. Rules
of law expressing principles of public policy therefore
fall to be treated with the same respect and
circumspection, the same common sense and regard to
changing circumstances, as any other rules of law.”
38. I conclude therefore that to
permit international standards to serve as a useful guide
rather than as a prescriptive rule in those areas where
procedural fairness is uncertain, ambiguous or incomplete
is not to adopt forbidden reasoning. I consider that to do
so where appropriate shows a proper sensitivity to the
limits of permissible judicial creativity and to be no
less than constitutional propriety requires.
39. I must now consider how these
general principles are applicable to the particular
circumstances of this case:
1. The first matter to be determined is whether or not
there is a duty on the DPP in the instant case to give
reasons to Mr Adams for the decision not to direct a
prosecution against all or any police officers involved in
the arrest, assault and detention of the applicant.
Applying the criteria that I have set out earlier in this
judgment, my views are:
(a) I find nothing in the statutory function of the
Director that imposes a duty to furnish reasons for a
decision not to prosecute in these circumstances. The
functions of the Director are defined in Article 5(1)(a)
of the Prosecution of Offences (Northern Ireland)
Order 1972 ("the 1972 Order"):
"Without prejudice to the operation of the succeeding
provision of this Article, it shall be the functions of
the Director -
(a) to consider or cause to be considered with a view to
his initiating or continuing in Northern Ireland any
criminal proceedings or the bringing of any appeal or
other proceedings in or in connection with any criminal
cause or matter in Northern Ireland, any facts or
information brought to his notice, whether by the Chief
Constable acting in pursuance of Article 6(3) of this
Order or by the Attorney General or by any other
authority or person.
(b) to examine or cause to be examined all documents that
are required under Article 6 of this Order to be
transmitted or furnished to him and where it appears to
him to be necessary or appropriate to do so to cause any
matter arising thereon to be further investigated.
(c) where he thinks it proper to initiate, undertake and
carry on, on behalf of the Crown, proceedings for
indictable offences and for such summary offences or
classes of summary offences as he considers should be
dealt with by him."
40. Under Article 5(2) he is
responsible to the Attorney General for the due
performance of the functions of the Director under the
Order. Article 6 deals with the delivery of information to
the Director and at Article 6(3) the Order states:
"It shall be the duty of the Chief Constable, from
time to time, to furnish to the Director facts and
information with respect to -
(a) indictable offences alleged to have been committed
against the law of Northern Ireland;
(b) such other alleged offences as the Director may
specify;
and at the request of the Director, to ascertain and
furnish to the Director information regarding any matter
which may appear to the Director to require investigation
on the ground that it may involve an offence against the
law of Northern Ireland or information which may
appear to the Director to be necessary for the discharge
of his functions under this Order."
41. Clearly therefore there is no
statutory obligation to provide reasons.
(b) I find nothing in the statute which implies that any
additional procedural standard by way of a requirement to
give reasons in these circumstances is imposed. The Order
is entirely silent in this matter and having read through
the Order in its entirety I find nothing that implies such
a duty.
(c) Does the common law impose such a duty? There is no
general duty to give reasons for administrative decisions.
Following Lord Clyde's admonition in Stefan's case
at page 1300E, I must now determine whether this case is
one of the exceptions where the giving of reasons will be
required as a matter of fairness and openness. This may
occur through the particular circumstances of the case or
if it falls into a class of case where the duty to give
reasons exists eg because of the particular character or
quality of the decision. I have considered, per Sedley J
in the Higher Education case, whether there is
a trigger factor causing me to recognise this as being in
one of the classes referred to Stefan's case. In
looking at this issue I must have regard not only to the
character of the decision of the Director but also the
character and jurisdiction of the Director as a
decision-making body.
42. The function of the DPP is a
complex one. It is not that of an adjudicator between two
parties and to that extent alone it is immediately
distinguishable from cases such as those of Doody, Higher Education,
Murray and Cunningham. Moreover the DPP has
to consider and weigh a number of disparate and at times
even competing interests eg the general public interest at
any particular time, the interest of the putative accused,
the victim, the supplier of information such as an
informant, the various disinterested and interested
witnesses. It is a complex and almost unique function. I
consider that Parliament has invested him with the
discretion to weigh up those disparate and often competing
interests and then to make a decision. It is a reflection
of this complex function that has led to the conclusion in
a number of authorities that judicial review should be
sparingly exercised when dealing with the office of the
Director of Public Prosecutions. The position is well
summarised in the judgment of Kennedy LJ in R v DPP ex
parte C (1995) 1 CAR 136 (" ex parte
C (1995)"). This case considered the decision of
the Director not to prosecute in a case of alleged
buggery. Having reviewed all the authorities, Kennedy LJ
said at page 141:
"From all of those decisions it seems to me that in
the context of the present case this court can be
persuaded to act if and only if it is demonstrated to us
that the Director of Public Prosecutions acting
through the Crown Prosecution Service arrived at the
decision not to prosecute:
(1) because of some unlawful policy (such as the
hypothetical decision in Blackburn not to prosecute
where the value of goods stolen was below £100);
(2) because the Director of Public Prosecutions failed to
act in accordance with his own settled policy as set out
in the code; or
(3) because the decision was perverse. It was a decision
in which no reasonable prosecutor could have arrived.
Mr Supperstone sought to satisfy us under all three heads
but he did not suggest anything like improper motive or
bad faith."
43. More recently in R v
Director of Public Prosecutions ex parte Treadaway ,
The Times, 31 October 1997 (" Treadaway's
case"), at page 8, Rose LJ said:
"Mr Burnett accepted that, in light of recent
authorities ... this court has a reviewing function in
relation to the decisions of the Director. But it is ´very
limited indeed' (see per Steyn LJ in Elguzouli v DAF
Commissioner for Police (1995) QB 335 at 346H of the
former report) and must be exercised sparingly and only
when the decision challenged is wholly irrational or
perverse or such as no reasonable prosecutor could
make."
44. This was a case involving the
decision of the DPP not to prosecute a number of police
officers in the West Midlands Police Serious Crime Squad
and the issue arose as to whether or not reasons for that
refusal ought to have been given. At page 14 Rose LJ
said:
"Whether or not reasons ought to have been given in
this case does not arise for determination if the primary
challenge based on breaches of the code succeeds. For
present purposes it suffices to say that the authorities
on which Mr Owen relies are in our judgment wholly
distinguishable. They all relate to cases where the body
which is required to give reasons has an adjudicating
function in relation to the person seeking reasons and
therefore must act fairly to him so that, according to the
circumstances, reasons may be necessary. The role of the
DPP however is not an adjudicating role between two
parties. Her function is to decide, in the public
interest, whether a prosecution should be brought. And, as
all the authorities make plain, the nature of the
decision-making process is crucial when deciding whether
fairness requires the giving of reasons. As Mr Burnett
for the DPP pointed out, a duty to give reasons arises
from a duty to act fairly. If the public confidence in the
criminal justice system is to be maintained, a decision by
the Director not to prosecute can properly be the subject
of scrutiny by judicial review. But it does not follow
that reasons for such a decision must be given, even in
the limited class of case for which Mr Owen so
contends."
45. A similar approach to the
Office of the Director of Public Prosecutions had been
adopted outside this jurisdiction. In H, applicant
v Director of Public Prosecutions and the Commissioner of
Garda Sicohana (1994) 2 IR 589 the case
concerned an application to compel the DPP to institute a
prosecution or to give reasons for not doing so and to
supply the applicant with such statements and
documentation. In the Supreme Court O'Flaherty J said
at page 602:
"I would also uphold the submissions made on behalf
of the Director of Public Prosecutions that certainly as
far as this case is concerned he was not obliged to give
his reasons for not bringing a prosecution and I would in
general uphold the appropriateness of that course of
action for the reasons submitted on his behalf before us
... In deciding whether to bring or not to bring a
prosecution the Director is not settling any question or
dispute or reciting rights or liabilities; he is simply
making a decision on whether it is appropriate to initiate
a prosecution. If he does, it is afterwards for the courts
to decide whether a conviction may be sustained. The
stance taken by the Director of Public Prosecutions is
that he should not, in general, give reasons in any
individual case as to why he has not brought a prosecution
because if he does so on one case he must be expected to
do so in all cases. I would uphold this position as being
a correct one."
46. Mr Smith submits that given
the nature of the DPP's functions, procedural fairness is
not the criterion to be applied where a victim seeks
review of a decision not to prosecute or a failure to
provide reasons for not instituting a prosecution. Whilst
I consider this is too absolute a position, I am persuaded
that it is only in the exceptional circumstances
postulated by Lord Clyde in Stefan's case that such
an obligation would arise. The recent decision in the
Divisional Court in England in R v Director
of Public Prosecutions ex parte Patricia Manning and
Elizabeth Melbourne (unreported 17 May 2000) is a good
example of such a circumstance. In that case a prisoner
had died in the course of a struggle with prison officers
whilst he was in custody. Death was a result of fatal
force to the neck which had been applied by one particular
officer. An inquest was held with a jury into the death
and a verdict of unlawful killing on the basis of an
unlawful act of manslaughter was returned. The DPP issued
a decision not to prosecute. A judicial review of that
decision was instituted by relatives of the deceased on
the grounds, inter alia, that no adequate reasons for the
decision were given. At page 22 Lord Bingham LCJ
said:-
"It is not contended that the Director is subject to
an obligation to give reasons in every case in which he
decides not to prosecute. Even in the small and very
narrowly defined class of cases which meet Mr Blake's
conditions set out above, we do not understand domestic
law or the jurisprudence of the European Court of Human
Rights to impose an absolute and unqualified obligation to
give reasons for a decision not to prosecute. But the
right to life is the most fundamental of all human rights.
It is put at the forefront of the Convention. The power to
derogate from it is very limited. The death of a person in
the custody of the state must always arouse concern, as
recognised by section 8(1)(c), 3(b) and (6) of the Coroners'
Act 1988, and if the death resulted from violence
inflicted by agents of the State that concern must be
profound. The holding of an inquest in public by an
independent judicial official, the coroner, in which
interested parties are able to participate must in our
view be regarded as a full and effective inquiry (see McCann
v. United Kingdom [1996] 21 EHRR 97, paragraphs 159
to 164). Where such an inquest following a proper
direction to the jury culminates in a lawful verdict of
unlawful killing implicating a person who, although not
named in the verdict, is clearly identified, who is living
and whose whereabouts are known, the ordinary expectation
would naturally be that a prosecution would follow. In the
absence of compelling grounds for not giving reasons, we
would expect the Director to give reasons in such a case:
to meet the reasonable expectation of interested parties
that either a prosecution would follow or a reasonable
explanation for not prosecuting be given, to vindicate the
Director's decision by showing that solid grounds exist
for what might otherwise appear to be a surprising or even
inexplicable decision and to meet the European Court's
expectation that if a prosecution is not to follow a
plausible explanation will be given."
47. Mr McCloskey urged on me that
this case had been wrongly decided. I do not agree. I
consider it is no more and no less than a working
illustration of that exceptional class of case where even
a Director of Public Prosecutions will be required to
furnish reasons to a victim for failing to prosecute.
48. Moreover there may well be
occasions when the Director may furnish reasons in
specific cases for example on foot of a policy adopted, a
code drawn up, the public interest, or even as part of the
gathering momentum of transparency and openness in public
affairs. Ultimately the DPP is accountable to the Attorney
General and to Parliament and it would be strange if
current public concern for victims was not reflected to
some degree in the Director's approach to his functions. I
was referred to two decisions of Kerr J namely In the
matter of an Application by Margaret Laverty for Leave to
Apply for Judicial Review (unreported, 28 April 1998)
and In the matter of an Application by Chalmers Brown
for Judicial Review (unreported, 13 December 1996) and
to R v The Crown Prosecution Service ex parte Maureen Hitchins
(unreported 13 June 1997) in England where reasons had
been provided by the Director for a decision not to
prosecute. Such cases however in my view do not
necessarily spring from a duty to act with procedural
fairness but as a result of a case by case consideration
by the Director and as a consequence of the discretion
vested by Parliament in him to act in the public interest.
In my view, so long as in this case the Director has
looked at the matter on an individual basis, in light of
the policy he has adopted, has considered in terms if this
is one of the exceptional cases such as Manning and
has not fallen foul of the principles set out by Kennedy
LJ, then he is not bound to adopt the same approach to the
giving of reasons in this case as he may have adopted in
other individual instances.
49. Mr Harvey rightly
concedes that there can be no general rule that the
Director must give reasons in every case. Rather he
argues, relying on the principles to which I have referred
in the cases of Doody, Murray, Cunningham
and Higher Education , that this is one of those
trigger cases requiring reasons or alternatively one of
those cases that "cries out" for reasons. In
essence the circumstances which he argues triggers the
need for reasons are as follows:
(a) The public hearing of the civil action before Kerr J
which he argues amounted to a finding of a serious attack
by police officers with sectarian overtones upon the
applicant. The judge's findings as to the medical
evidence, the evidence of independent civilian witnesses
and the substantial award of damages are all said to fuel
the strength of this point.
(c) The conduct of the police officers constitutes serious
breaches of international human rights standards.
(d) There has been widespread concern on the part of the
public and human rights organisations about the need to
make the offending police officers accountable for their
actions.
(e) It is a unique case in that an independent police
force was brought in to carry out an investigation. The
Independent Commission for Police Complaints has been
involved in the case and had issued a public statement on
6 March 1998 in which it said, inter alia:
"We would like to assure the public and all those
directly involved in the case that the Commission
supervising member and his team will ensure that the
inquiry is conducted in a thorough, impartial and
efficient manner."
50. The chairman of the ICPC had
also indicated that the Commission had considered an
external officer should be appointed because of the
specific nature of the case and the need for an
investigation which was "transparently
independent".
(f) He argued that the conduct of the Director, the Chief
Constable and the ICPC and all the other circumstances
specified above gave rise to a legitimate expectation on
the part of the applicant that reasons for any decision of
the Director would be provided in the interests of
transparency and accountability.
51. I am not persuaded that these
factors, individually or cumulatively, do constitute a
trigger requiring reasons to be furnished to Mr Adams
beyond those already given in general terms by the DPP.
Whilst undoubtedly serious assaults such as this by the
police on members of the public are matters of profound
concern, I cannot see why, without more , victims
in such instances should have a more compelling case or
should enjoy greater rights than a plethora of other
victims. The potential category is endless. Victims of
rape, child abuse, bombing outrages and the relatives of
murder victims and children killed by joyriders are but
examples of an endless list of high profile outrageous
offences which have all individual claims for special
treatment especially where the victim's and the public's
perception may be that the perpetrators are well known to
the police. I consider it would be invidious and indeed
illogical for a Director to be obliged to draw a line
between those victims whose cases were in a special
category justifying reasons being given and those which
were not when the line is based solely on the identity of
the offender and the publicity given to the offence. Such
a division itself would constitute a potent stimulus for
judicial review. Where however there are additional
factors, such as are found in Manning's case, the
fact that servants of the State were involved may be an
important matter but by itself I do not consider it to
constitute a sufficient trigger. In this case, unlike many
other victims, and the family in Manning's case, Mr Adams
has had his assault thoroughly investigated not only by
the police but also by the DPP, an independent police
force supervised by the Independent Commission for Police Complaints,
an independent senior counsel and a full public hearing
before a High Court judge. It is not without note
that the Independent Commission for Police Complaints for
Northern Ireland wrote to the Chief Constable on 8
December 1998 stating, inter alia:
"In addition to my view of the quality of the
investigation which is covered formally in the statement,
I would like to add that I consider this to have been the
most thorough and comprehensive investigation that I have
been involved in since the Commission came into being in
1988. I am particularly pleased that this was the case in
this the first occasion that we have required the
appointment of an investigating officer from outside the
RUC."
52. However Mr Harvey argues that
the additional factor in this case is that there was a
full and effective inquiry before Kerr J and that in light
of his finding the decision not to prosecute was so
inexplicable and aberrant that the ordinary expectation
would be that the Director would vindicate his decision by
giving intelligible reasons. Accordingly I must consider
this proposition in the present context of procedural
fairness although I consider precisely the same reasoning
will be applied when considering whether or not the
decision not to prosecute was irrational under the
Wednesbury principles to which I will turn later in this
judgment. I do not consider that one can characterise the
decision of the Director in this case as being
inexplicable or aberrant. In the first place, the Director
had before him a number of matters which were not before
the learned trial judge. These included forensic medical
evidence, additional witness statements and information
provided by Assistant Chief Constable Orr. One of the
witness statements included an eye-witness undercover
police officer allegedly at the scene. This evidence was
not only subjected to the scrutiny of the Director, but
also to that of an independent senior counsel as well as
that of the Assistant Chief Constable Orr and the ICPC.
The standard of proof in a criminal matter would of course
be different from that in the civil proceedings before
Kerr J. It must be appreciated that whilst there
obviously was clear evidence before Kerr J that Mr
Adams had been assaulted by police officers for which the
Chief Constable was vicariously liable (the injuries
virtually speak for themselves in this regard), a wholly
new process has to be considered when ascertaining if
there is sufficient evidence for specific criminal
proceedings to be preferred against individual officers.
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