Neutral Citation no.[2001] NIQB 32

Ref: 

KERC3488

Judgment: approved by the Court for handing down

Delivered:

04.09.2001

(subject to editorial corrections)

KERR J

Introduction

            By this application, Hugh Jordan, the father of Pearse Jordan, deceased, challenges a decision of the Chief Constable of the Royal Ulster Constabulary to withhold certain documents (which Mr Jordan had sought for the purpose of an inquest into the death of his son) unless an undertaking is given that the documents will only be used for certain specified purposes.

Background

            On 7 September 1999 Madden & Finucane, acting on behalf of the applicant, wrote to the Chief Constable asking for all documents generated by the police investigation into the death of Pearse Jordan.  Ultimately, on 2 February 2000, the Crown Solicitor's Office replied on behalf of the Chief Constable, stating that he would disclose the statements of those who were to be called as witnesses at the inquest or whose statements were to be read by the Coroner in the course of the inquest.

            The decision to restrict the documents to be disclosed to these categories prompted an application for judicial review by the applicant which came on for hearing on 3 October 2000.  On that date, the applicant was given leave to amend his Order 53 statement so as to rely on rights said to derive from the incorporation of the European Convention on Human Rights into domestic law.  The hearing was adjourned and, on 11 October 2000, an affidavit was filed on behalf of the Chief Constable in which David Mercier, his legal adviser, stated that the Chief Constable had reconsidered his decision in light of the Human Rights Act 1998 and had determined that the documents which the applicant had sought should be disclosed, subject to any claim for public interest immunity. 

            When the hearing of the judicial review application was resumed on 12 October 2000, counsel for the Chief Constable, Mr McCloskey QC, informed the court that, subject to any PII constraints, the documents should be provided to the applicant's solicitors within six weeks.  The application for judicial review was thereupon dismissed by consent. 

            On 19 December 2000 the Crown Solicitor wrote to Madden & Finucane stating that the release of the documents would be subject to the provision of an undertaking that they would not be used for any purpose other than the inquest.  He pointed out that this was a feature of the Home Office circular which governed the disclosure of documents for inquests and on which the applicant's judicial review had been based.  This prompted a number of letters from the applicant's solicitors in which, among other matters, they referred to the fact that the Chief Constable had reversed his earlier decision avowedly because of his consideration of the Human Rights Act and to the fact that in neither Mr Mercier's affidavit nor in Mr McCloskey's submissions to the court was any mention made of the need to provide an undertaking.  On 22 January 2001, the Crown Solicitor's Office replied, asserting that no undertaking had been given, that it was open to the Chief Constable to apply his policy (based on the circular) to the release of these documents and that, at the time of making the second decision, the Chief Constable and his advisers had not considered the decision in Taylor v Serious Fraud Office (1998) 4 All ER 801.  Having done so, they had concluded that the requirement for an undertaking was fully justified.  Finally, the Crown Solicitor pointed out that the only purpose identified by the applicant's solicitors to which the documents might be put other than the inquest was the case then pending in the European Court of Human Rights.  In light of this the Chief Constable was prepared to modify the standard undertaking to the extent that the Jordan family and their legal representatives would be permitted to use the documents for domestic proceedings and for the proceedings before the European Court of Human Rights.

The judicial review application

            On behalf of the applicant, Mr Treacy QC claimed that both in Mr Mercier's affidavit and in Mr McCloskey's submissions to the court, an undertaking had been given that the documents would be provided, subject only to any PII considerations.  Mr Treacy suggested that the applicant had agreed to his application for judicial review being dismissed on that basis.  If the question of an undertaking had been raised, the applicant would not have agreed to the dismissal of those proceedings.

            In any event, Mr Treacy submitted, the applicant was entitled to have unimpeded access to these documents in vindication of his Article 2 rights.  The ECtHR in its decision in the case of Jordan v UK had been critical of the fact that those responsible for the death of Pearse Jordan belonged to the same force (the Royal Ulster Constabulary) as those who investigated the circumstances of his death.  It was inconceivable, Mr Treacy argued, that the head of that force should be permitted to impose conditions on the availability of relevant documents to the applicant.  Such a condition had never previously been required of the applicant's solicitors, Mr Treacy suggested, and no explanation had been given as to why an exception was being made in this case.

Was an undertaking given to release the material unconditionally?

            The averments made by Mr Mercier as to the circumstances in which the documents would be provided were unqualified save for the reference to PII.  Likewise, Mr McCloskey made no reference to the undertaking that might be required of the applicant when he informed the court that the documents would be provided.  I do not consider, however, that these circumstances constitute an undertaking that the documents would be provided without condition.  As has been pointed out, the relevant circular provided for an undertaking to be given that the documents would not be used for a purpose other than the inquest.  If the Chief Constable and his advisers were to release the documents without requiring such an undertaking, they would be acting in a way which did not accord with the Chief Constable's own policy.

            In this context, it does not appear to me to matter greatly whether the Human Rights Act alone dictated the Chief Constable's change of mind or whether other factors played a part.  Even if the new decision was based entirely on the Chief Constable's consideration of the applicant's rights under the Convention, this did not preclude him from following his own policy and imposing an undertaking. 

Article 2

            The applicant claims that he is afforded non-derogable rights by Article 2 of the Convention which include a right to unrestricted access to all documents relevant to the circumstances in which his son died.  It is suggested, therefore, that the imposition of an undertaking in the form required by the Chief Constable violates that right.

            The jurisprudence of ECtHR does not support the applicant's claim to a right cast in such wide terms.  In its judgment in the applicant's case the Court dealt with the question of access to documents in the following way: -

"1.       As regards access to documents, until recently the applicant was not able to obtain copies of any witness statements until the witness concerned was giving evidence. This was also the position in the McCann case, where the Court considered that this had not substantially hampered the ability of the families' lawyers to question the witnesses (cited above, p. 49, § 62). However it must be noted that the inquest in that case was to some extent exceptional when compared with the proceedings in a number of cases in Northern Ireland (see also the cases of McKerr v. the United Kingdom, no. 28883/95, Kelly and Others v. the United Kingdom, no. 30054/96, and Shanaghan v. the United Kingdom, no. 37715/97). The promptness and thoroughness of the inquest in the McCann case left the Court in no doubt that the important facts relating to the events had been examined with the active participation of the applicants' experienced legal representative. The non-access by the next-of-kin to the documents did not, in that context, contribute any significant handicap. However, since that case, the Court has laid more emphasis on the importance of involving the next of kin of a deceased in the procedure and providing them with information (see Ögur v. Turkey, cited above, § 92).

2.         Further, the Court notes that the practice of non-disclosure has changed in the United Kingdom in the light of the Stephen Lawrence Inquiry and that it is now recommended that the police disclose witness statements 28 days in advance (see paragraph 73 above).  Disclosure of the documents has now been made to the applicant in advance of the next stage of the inquest procedures (see paragraphs 50-54 above). This development must be regarded as a positive contribution to the openness and fairness of the inquest procedures. The Court is not prepared to reach any findings concerning the alleged incompleteness of the disclosure at this stage. There is nothing before it to suggest that materials necessary to the examination of the facts have been withheld. It may be observed however that lack of access to the witness statements was the reason for several adjournments in the inquest (see further below, paragraph 136). The previous inability of the applicant to have access to witness statements before the appearance of the witness must also be regarded as having placed him at a disadvantage in terms of preparation and ability to participate in questioning. This contrasts strikingly with the position of the RUC who had the resources to provide for legal representation and full access to relevant documents. The Court considers that the right of the family of the deceased whose death is under investigation to participate in the proceedings requires that the procedures adopted ensure the requisite protection of their interests, which may be in direct conflict with those of the police or security forces implicated in the events. Prior to the recent development in disclosure of documents, the Court is not persuaded that the applicant's interests as next-of-kin were fairly or adequately protected in this respect."

It is clear that the Court did not conclude that access to documents would invariably be required.  Indeed, in the McCann case the Court found that the denial of access to documents did not handicap the proper exploration of the relevant issues by the legal representative of the next of kin.  It is of course true that the Court also acknowledged that, since that case had been decided, more emphasis had been laid on the importance of involving the next of kin of a deceased in the procedure for an inquest and providing them with information.  But the Court was careful not to prescribe the circumstances in which documents must be disclosed, much less the conditions in which disclosure should take place.

            In a somewhat different context, ECtHR, in the case of Ogur v Turkey No 21594/93 considered the right of the next of kin to have access to a police investigation file into their relative's death.  In that case members of the security forces had killed the applicant's son.  According to the Government, the scene of the incident had been used as a shelter by terrorists.  The applicant claimed that her son had been a guard at a mining company's site and he had been shot dead by the security forces without warning.  The Court held that the obligation to protect the right to life under Article 2 of the Convention required that there should be some form of effective official investigation when individuals have been killed as a result of the use of force [Paragraph 88].  It found that no such investigation had been conducted in that case.  At paragraph 92 of the judgment the Court stated: -

"It must be noted, lastly, that during the administrative investigation the case file was inaccessible to the victim's close relatives, who had no means of learning what was in it (see paragraph 15 above). The Supreme Administrative Court ruled on the decision of 15 August 1991 on the sole basis of the papers in the case, and this part of the proceedings was likewise inaccessible to the victim's relatives. Nor was the decision of 15 August 1991 served on the applicant's lawyer, with the result that the applicant was deprived of the possibility of herself appealing to the Supreme Administrative Court."

I had occasion to consider this decision recently in the case of Re A's application (2001) unreported.  There I said: -

"I do not construe this passage as indicating that the Court intended that the relative of a deceased victim should in all circumstances be entitled to have access to the investigation file.  The fact that the applicant in the Ogur case did not have access to information about the investigation was a further illustration of the inadequacy of the inquiry.  It does not follow that, in every instance, in order to be effective, an investigation must be conducted by allowing the victim access to all of the information available to the investigating authorities."

The case of Ogur was also considered by the Court of Appeal in Re Adams [January 2001] unreported.  Delivering the judgment of the court, the Lord Chief Justice said: -

"It will be seen from the portions which we have quoted … that ECtHR does not lay down any ruling that for an investigation to be regarded as effective the claimant must have access to the investigation papers.  It is merely one element among others which may demonstrate the inadequacy of an investigation.  It does not follow that a thoroughly conducted investigation is to be regarded as deficient if the complainant has not been given access to the investigators' documents."

These passages illustrate the principle that what is required in order to vindicate an applicant's Article 2 rights will depend on the circumstances of the individual case.  That has been emphasised by ECtHR in such cases as Velikova v Bulgaria No 41488/98.

                I am satisfied that the applicant's Article 2 rights are not infringed by the requirement that he give the undertaking sought by the Chief Constable.  In Velikova the Court described the nature of the Article 2 rights of the next of kin of a deceased person killed by the use of force in this way: -

"The Court recalls that the State's obligation under Article 2 to protect the right to life, read in conjunction with its general duty under Article 1 of the Convention "to secure to everyone within their jurisdiction the rights and freedoms defined [therein]", requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The investigation must be, inter alia, thorough, impartial and careful (see the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49 §§ 161-163, and the Çakici judgment, cited above,  § 86)."

There is nothing to suggest that, if the applicant complies with the request for an undertaking, that this will involve any compromise of the effectiveness of the investigation.  For reasons that I shall discuss presently, the requirement to give an undertaking in relation to statements made in the course of a police investigation is not unreasonable.  It has not been demonstrated that unrestricted access to these statements is essential in order that a "thorough, impartial and careful" investigation of the circumstances of the death of the deceased's son may take place.

The undertaking

          In advancing the case that the undertaking sought by the Chief Constable was reasonable, Mr McCloskey relied heavily on the decision of the House of Lords in Taylor and others v Serious Fraud Office [1998] 4 All ER 801.  In that case documents generated by a Serious Fraud Office inquiry were disclosed to the solicitors of defendants in a criminal trial.  The solicitors in turn disclosed them to the first plaintiff who issued proceedings for libel.  The House of Lords held that an implied undertaking applied to material disclosed by the prosecution in criminal proceedings. 

          At page 807 Lord Hoffman said: -

"The implied undertaking in civil proceedings is designed to limit the invasion of privacy and confidentiality caused by compulsory disclosure of documents in litigation. It is generated by the circumstances in which the documents have been disclosed, irrespective of their contents. It excludes all collateral use, whether in other litigation or by way of publication to others."

and at page 810: -

"Many people give assistance to the police and other investigatory agencies, either voluntarily or under compulsion, without coming within the category of informers whose identity can be concealed on grounds of public interest. They will be moved or obliged to give the information because they or the law consider that the interests of justice so require. They must naturally accept that the interests of justice may in the end require the publication of the information, or at any rate its disclosure to the accused for the purposes of enabling him to conduct his defence. But there seems to me no reason why the law should not encourage their assistance by offering them the assurance that, subject to these overriding requirements, their privacy and confidentiality will be respected."

As I observed in Re A's application, these passages identify the public interest in maintaining confidentiality for police investigations unless the requirements of justice otherwise dictate.  The need to keep confidential the contents of prosecution files has also been recognised in the United Nations Guidelines on the Role of Prosecutors paragraph 13 (c) of which provides: -

"[In the performance of their duties prosecutors shall] keep matters in their possession confidential, unless the performance of duty or the needs of justice require otherwise."

The material that the applicant sought from the Chief Constable consists of statements made in the course of the police investigation into his son's death.  It is precisely the type of material referred to by Lord Hoffman in the second passage quoted above.  While the interests of justice require that it be released to the applicant, it appears to me to be entirely consistent with the approach recommended by Lord Hoffman that an undertaking be obtained from the person to whom it is released that it should not be used for any purpose other than is necessary to meet the requirements of justice.  I am satisfied, therefore, that the decision to require the applicant to give the undertaking sought in this case is not unreasonable.

Conclusions

I have concluded that no undertaking was given by the Chief Constable's legal adviser or by counsel that the documents would be released unconditionally.  I do not consider that the applicant' Convention rights are infringed by his having to give an undertaking in the terms sought nor do I consider that the decision to require such an undertaking before the documents are released is unreasonable.  The application for judicial review must be dismissed, therefore.