B, N, O, Q, R, U, v (Former Soldiers) v The Chief Constable of the Police Service of Northern Ireland
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MRS JUSTICE CARR,MR JUSTICE OPENSHAW |
| Judgment Date | 26 November 2015 |
| Neutral Citation | [2015] EWHC J1126-2 |
| Docket Number | CO/5494/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 November 2015 |
[2015] EWHC J1126-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
The Strand
London
WC2A 2LL
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
( Lord Thomas of Cymgiedd)
Mr Justice Openshaw
and
Mrs Justice Carr DBE
CO/5494/2015
Mr James Lewis QC and Mr Ben Watson (instructed by Devonshires Solicitors LLP) appeared on behalf of the Claimants
Mr Jonathan Hall QC (instructed by the Government Legal Department) appeared on behalf of the Defendant
PROCEEDINGS
Thursday 26th November 2015
: Mr Lewis?
MR LEWIS: May it please my Lords, I appear with Mr Watson for the claimants, and Mr Hall QC appears for the defendant.
: Yes.
MR LEWIS: Can I first apologise to my Lords and my Lady for putting extra material before you? There is a bundle of authorities.
: Is this it?
MR LEWIS: It is, my Lord.
: Yes, okay.
MR LEWIS: The reason is that after the exchange of skeletons, which was the first indication that the Police Service of Northern Ireland did not accept that Article 26 of the 1989 order regarding necessity applied in relation to section 147 —
: Yes.
MR LEWIS: —I have shown my learned friend the Interpretation Act. I have taken him through sections 17(2)(a) and 22, and, as I understand it at the moment, he concedes that in fact our interpretation is correct.
: I think that is what we were first going to ask you. This case can be done in chunks, and it seemed to me — we have discussed this. We did not know whether there was a dispute about Article 26, but if it is common ground — and you can go through it with us in a moment — that it does apply and the question is: is it necessary? — then that can be dealt with and maybe we can make a decision on that and not go into the other issues, some of which are quite complicated. If Article 26 is incorporated, the test of necessity arises. That is a judgment that we can make on the evidence —
MR LEWIS: Yes.
: —and then the other issues would be best followed if we decided the matter on that basis, unless you wanted us to go into all the other issues, some of which are really quite difficult. That must be a matter for you to consider. But at the moment — and providing Mr Hall is agreeable — can we deal with it by considering this point first?
MR LEWIS: Certainly, my Lord. My Lord, may I —
: Begin in the ordinary way. Outline the case to us — because one understands that this is a case of some considerable public interest — and then let us move and deal with the question of Article 26 and necessity, and then we can turn to the evidence of that. Then we can hear Mr Hall, and we can then take stock on where we want to go.
MR LEWIS: I am obliged.
: Is that a sensible way, Mr Hall?
MR HALL: Yes, thank you.
: Because some of the other issues do involve the inter-jurisdictional issues — and I am not sure that there is much authority upon the interrelationship between how this court in an extradition to a different jurisdiction within the United Kingdom operates, and the constraints that we should adopt, which you might not adopt on an extradition case to a member of the European Union. There are different considerations. I believe it is a matter where there is not a lot of authority.
MR LEWIS: My Lord is right. May I just check with my Lords and my Lady that you have — there should be two volumes of evidence and two volumes of authorities?
: Yes.
MR LEWIS: The court will see from the order of Mr Justice Ouseley that, in effect, this is a rolled-up hearing.
: Yes.
MR LEWIS: If my Lords or my Lady needs it, the order is at tab 12 in volume 2.
: Yes.
MR LEWIS: And can I take it that the court has had an opportunity to look at the witness statements of both Mr Bardon and Mr Harrison?
: Yes.
MR LEWIS: I am obliged. That will shorten matters. The heart of the application before the court today is that the defendant wishes to interview the claimants. We have no issue with that. He is entitled to do so and we will co-operate. However, the defendant seeks to exercise his power of arrest in order to interview the claimants under caution in Northern Ireland. He has already made a decision to arrest all the claimants, but has undertaken not to put that into effect pending the challenge before this court. It is his decision to arrest for that purpose that we challenge.
Can I just initially take my Lords and my Lady to the amended relief we seek? It is set out in our skeleton argument at paragraph 2.
: Paragraph 2?
MR LEWIS: Precisely, my Lord. My Lords and my Lady will see that the relief sought by the claimants is amended to the following. We have instructions to give an undertaking to the court that the claimants will voluntarily attend for an interview under caution, and remain for the duration of that interview, to be carried out by the defendant at a police station, or other acceptable location to the defendant, in England and Wales in relation to the offence of 13 th January 1972.
Consequential upon that undertaking, we would seek an order from this court prohibiting the defendant from arresting the claimants in order to interview them under caution.
: Yes.
MR LEWIS: My Lord, given the indications my Lord has given earlier, I will leave the declaration at the moment.
: Well, let us just see where we get to, because if the interviews take place within the jurisdiction of England and Wales, as opposed to the jurisdiction of Northern Ireland, then, of course, this court can exercise any control over any process that occurs within our jurisdiction.
MR LEWIS: My Lord, yes.
: And we can come back to that.
MR LEWIS: I am obliged, my Lord. So, we do say that the relief we have sought is carefully drafted and it allows arrest for other reasons. So if a decision was taken to charge any of the claimants, and a summons was inappropriate, arrest is not prohibited. It is purely limited to the purpose which has been set forth by the defendant, namely, to interview.
: I just want to clarify what you are saying. What you are saying is that had a decision been made to charge them, arrest for that purpose would be permitted?
MR LEWIS: My Lord, that is right.
: And then, of course, any decision to charge is ultimately, no doubt, subject to the controls of the Northern Ireland Courts, similar to the controls that we exercise here?
MR LEWIS: My Lord, that is right.
: Because ultimately a decision to prosecute is subject to judicial review. One would hope that it would be — I do not know, and you will have to explain to us if we get to this area, how the accountabilities work in Northern Ireland, the independence of the DPP and the position of the Attorney General. But ultimately, it is this court here — and one assumes it is the same in Northern Ireland, but as it is not this jurisdiction one cannot be sure — but in this jurisdiction this court has the ultimate power to stop any prosecution.
MR LEWIS: My Lord has set it out precisely. We could not responsibly say they could not be arrested if they were to be charged —
: Yes.
MR LEWIS: —because that is a different matter, and here no decision has been made on that point. The only decision which has been made, and which we therefore say is challengeable, is the decision to arrest in order to interview in Northern Ireland.
: And that would be consistent with the ordinary processes of extradition —
MR LEWIS: Precisely, my Lord.
: —because obviously this is a quasi-extradition, because normally a court will retain — if a decision has been made in a different jurisdiction — and let us just look at this in the context of the EU, where there is a single area for justice — if a decision is made to charge, then, subject to the protections in the Extradition Act and in the European Convention, essentially someone is taken. But you cannot take someone — a decision has not been made to charge —
MR LEWIS: That is exactly right, my Lord.
: This is very important. If there is a doubt about all this, one has to go back to look at what is involved between jurisdictions.
MR LEWIS: At the moment it is quite clear that the evidence only involves an investigative process involving interview — no decision to prosecute and no decision to charge has yet been made.
: And the only other decision one could identify is a decision not to charge without interview —
MR LEWIS: My Lady, that is right.
: —inferentially.
MR LEWIS: As I understand it, that is not a decision which is before the court —
: No, absolutely.
MR LEWIS: —on the evidence.
: It was decided that a charge would not be made until the persons in question had been interviewed.
MR LEWIS: My Lord,...
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