IN THE HIGH COURT OF JUSTICE IN NORTHERN
IRELAND QUEEN'S BENCH DIVISION
(JUDICIAL REVIEW) -----
IN THE MATTER OF AN APPLICATION BY 'E' FOR
JUDICIAL REVIEW -----
KERR J
[1]
This is an application by the mother of one of the
children affected by what has become known as 'the Holy
Cross dispute'. The applicant seeks judicial review in the
form of a declaration that the Chief Constable of the
Royal Ulster Constabulary and the Secretary of State for
Northern Ireland failed to secure the effective
implementation of the criminal law and to ensure safe
passage for her and her daughter to the Holy Cross primary
school for girls on Ardoyne Road, Belfast.
[2]From September 2001 until mid-November 2001
children and their parents and relatives who walked along
Ardoyne Road to and from the school were the target of
attacks and intimidation from individuals some of whom
were local residents; others have been described as
loyalists. This campaign is said to have been prompted by
the avowed failure of the government to provide proper
services to the local community. It was claimed that the
protest was designed to secure better provision for the
area. The judicial review application challenges the
manner in which the protest was policed.
[3]
The respondents have raised a preliminary point about the
viability of the application. They say that the protest no
longer takes place; that a change in the policing strategy
was introduced in November 2001. This, the respondents
claim, is more acceptable to the applicant and others
affected by the protest. It is therefore argued that the
issues raised in the application are entirely academic.
Any incidents related to the protest that have occurred
latterly are, the respondents contend, sporadic. The
manner in which these incidents have been dealt with is
entirely unrelated to any examination of what occurred
previously. They suggest that the application for judicial
review should not be allowed to continue.
[4]
In R v Secretary of State ex parte Salem [1999] AC
450 the House of Lords considered an appeal by a claimant
for asylum whose benefit had been discontinued after the
Home Office, without informing the appellant, told the
Benefits Agency that he had been refused asylum. The
appellant had sought judicial review of the decision of
the Home Office to communicate with the Benefits Agency
without notifying him. By the time the case came before
the House of Lords, following an appeal to a special
adjudicator, the appellant had been granted refugee status
and his benefit had been restored. The question arose
whether the appeal should be allowed to continue. The
House of Lords decided that it should not. At page 456/7,
Lord Slynn of Hadley said: -
"My Lords, I accept, as both counsel agree, that in
a cause where there is an issue involving a public
authority as to a question of public law, your Lordships
have a discretion to hear the appeal, even if by the
time the appeal reaches the House there is no longer a
lis to be decided which will directly affect the rights
and obligations of the parties inter se. …
The discretion to hear disputes, even in the area of
public law, must, however, be exercised with caution and
appeals which are academic between the parties should
not be heard unless there is a good reason in the public
interest for doing so, as for example (but only by way
of example) when a discrete point of statutory
construction arises which does not involve detailed
consideration of facts and where a large number of
similar cases exist or are anticipated so that the issue
will most likely need to be resolved in the near
future."
Perhaps the most significant statement in this passage
(in relation to the present case) is that academic
disputes should not be heard unless there is a good
reason in the public interest to do so.
[5]
For the applicant Mr Treacy QC has submitted strongly that
there is a compelling public interest in allowing the case
to proceed. He suggested that this protest campaign had
excited intense attention and that controversy continues
to rage about the manner in which it was handled. He
contended that if the police actions were amenable to
judicial review it must be right that they should be
subject to the scrutiny that the continuation of these
proceedings will provide even though the dispute is no
longer active.
[6]
In Salem Lord Slynn cited two examples of cases
which the courts continued to deal with although the
issues that arose had been rendered academic.
In Reg. v. Board of Visitors of
Dartmoor Prison, Ex parte Smith [1987] QB 106 a
prisoner was charged with an offence under prison rules of
doing gross personal violence to a prison officer. It was
found by the board of visitors that there was no case to
answer, but it was directed that a lesser offence of
assault be preferred. On judicial review, the judge held
that that direction was made without jurisdiction and
prohibited the board from inquiring into the assault
charge. The prisoner was no longer at risk from further
disciplinary proceedings. Despite opposition from the
prisoner, the Court of Appeal ruled, at p. 115:
"It seemed to all the members of this court that
the fact that the prisoner was no longer at risk of
further disciplinary proceedings did not deprive the
court of jurisdiction to hear this appeal; that there
were in it questions of general public interest; and
that, even if the prisoner is rightly to be regarded as
having no interest in the outcome, the court should, in
the exercise of its discretion, hear the appeal on the
merits."
In Reg. v. Secretary of State for the Home
Department, Ex parte Abdi [1996]
1 W.L.R. 298 two Somalian nationals were refused
asylum when they sought to challenge a decision rejecting
their claim that to be sent to Spain would be contrary to
the United Kingdom's obligations under the Convention
relating to the Status of Refugees. Following applications
for judicial review the Secretary of State agreed to
review their cases on the merits so that by the time the
matter came before the House of Lords, the outcome of the
appeals would not directly affect the applicants. The
House of Lords nevertheless heard the appeals because they
raised "a question of fundamental importance".
[7]
Unsurprisingly, no attempt is made in the authorities to
state definitively what might qualify as a matter of
general public interest or a question of fundamental
importance. This is something that must be decided
according to the particular facts of the individual case.
It seems to me, however, that the mere engagement of the
public's interest will not of itself warrant the continued
litigation of an academic dispute. One may perhaps draw an
analogy with the question whether an issue is one of
public law. An issue may be considered to be one of public
law where it involves a matter of public interest in the
sense that it has an impact on the public generally and
where the outcome of the particular dispute is one in
which the public has a legitimate interest. It does not
become one of public law simply because it generates media
interest or controversy – see, for instance Re
McBride's application [1999] NI 299, 310.
[8]
Adopting this approach to the question whether a matter of
general public interest arises in the present case, it
appears to me that one must conclude that the issue of
whether police action in relation to the Holy Cross
dispute is amenable to judicial review is one which, even
if it is academic, should be decided by the courts. This
is not because of the wide coverage that the episode
received in the media or because of the intense
controversy that it generated but because the
reviewability of police actions in these circumstances and
the propriety of such actions are matters in which the
public has a legitimate interest.
[9]
An anterior question requires to be addressed, however. Is
the dispute between the parties academic? In this context,
'academic' must mean of purely theoretical or speculative
interest. It appears to me that the onus of establishing
that the dispute is now of academic interest must rest
with the party who asserts it – in this case the
respondents. It is therefore for the respondents to
persuade the court that a decision on the application will
carry no practical benefit.
[10]
It is true that the protest has been quiescent since
November 2001. The protesters have not stated that it has
ended, however; merely that it is suspended. From time to
time incidents have occurred which are clearly related to
the dispute although they do not amount to a resumption of
the protest on anything like the scale that previously
existed. On the available evidence I have concluded that
the possibility of a further flare-up of the protest is by
no means remote. In that event, the debate about the
manner in which a full-blooded protest is policed would
once again become pertinent. I do not consider, therefore,
that the respondents have established that the litigation
of the issues that arise in this judicial review are
bereft of practical benefit. I have concluded that the
application should be allowed to proceed.
[11]
Mr Treacy criticised the application of the principles
outlined in Salem by courts in this jurisdiction in
the cases of Re McConnell's application [2000] NIJB
116 and Re Nicholson's application [2003] NIJB 30.
In view of my conclusion about the exceptional nature of
the present case it is strictly speaking unnecessary for
me to deal with these criticisms. But this case provides
the opportunity to say something further about both cases.
In McConnell Carswell LCJ said: -
"It is not the function of the courts to give
advisory opinions to public bodies, but if it appeared
that the same situation was likely to recur frequently
and the body concerned had acted incorrectly they might
be prepared to make a declaration, to give guidance
which would prevent the body from acting unlawfully and
avoid the need for further litigation."
Mr Treacy suggested that the test propounded in this
passage was "a material move from the Salem
test". The reference to the 'body concerned' acting
incorrectly could not, he said, be right, for this would
require a review of the merits of any case at a time when
the correctness of the decision-maker's actions was still
in dispute. I do not consider that there is any substance
in this criticism. In my judgment, where a dispute is
plainly academic, it is entirely appropriate for a court,
where it is invited to entertain the application, to
examine the merits of the claim (insofar as they can be
determined) before deciding whether to allow the
application to proceed. If it is possible to conclude that
there is no merit in the claim even if it were allowed to
proceed, this must be a potent factor in deciding to halt
the proceedings in limine.
[12]
In Nicholson I said: -
"Generally, it will be necessary to demonstrate
that such a ruling [on an academic issue] would not
require a detailed consideration of facts; it should
also be shown that a large number of cases are likely to
arise (or already exist) on which guidance can be given;
that there is at least a substantial possibility that
the decision-maker had acted unlawfully and that such
guidance as the court can give is likely to prevent the
decision maker from acting in an unlawful manner."
Mr Treacy suggested that nothing in the Salem
decision justified "the assertion that generally the
consideration of facts, or the number of cases or the
possibility of unlawfulness was a requirement".
[13]
It should be made clear that Nicholson does not
prescribe that where a detailed examination of facts is
required or where it cannot be shown that a large number
of cases depend on the outcome of the application, it will
automatically not be allowed to proceed. Equally, it is
not invariably incumbent on the applicant to show (at the
interlocutory stage where an application to stay the
proceedings is made) that the decision-maker has plainly
acted unlawfully. If a detailed examination of the facts
is required or if the outcome of the application is clear,
these are considerations to be taken into account. Their
presence will tend to militate against allowing the
application to proceed. Even if these factors are present,
however, in appropriate cases (of which the instant case
is an example) an application for judicial review may be
allowed to proceed provided the case raises a point of
general public interest.
[14]
For the reasons given above I consider that this is an
exceptional case and one that should be adjudicated upon
by the courts. I therefore refuse the respondents'
application.
