Chief Constable of Police Service of Northern Ireland’s Application
| Jurisdiction | Northern Ireland |
| Judgment Date | 27 May 2010 |
| Date | 27 May 2010 |
| Court | Queen's Bench Division (Northern Ireland) |
High Court, Northern Ireland; GIL7855
Gillen J
Mr Simpson QC and Mr McGleenan for the applicant, Mr O'Donoghue QC and Mr Daly for the coroner, Ms Quinlivan and Mr Moriarty, for some of the interested parties, Mr McDonald QC and Ms Doherty for the other interested parties
Whether a coroner could disclose redacted documents to interested persons before determining the scope of an inquest and the documents' direct relevance, where the Chief Constable wished to bring an application for public interest immunity (PII) in respect of those documents.
The coroner was considering resuming a number of inquests into deaths that occurred during the Northern Ireland "Troubles" in which an issue would be whether or not any of the deaths had been caused as a consequence of an intention to kill on the part of the security forces. The PSNI had provided the coroner with two internal investigation reports which contained information that the coroner deemed "potentially relevant" to the circumstances of the deaths. The coroner intended to disseminate redacted copies of those reports to the interested persons inviting them to make submissions as to (1) the scope of the inquests and (2) what constituted core relevant material in the light of those reports; he would then determine those matters having heard those submissions. The Chief Constable wished to apply for public interest immunity in respect of some of the material but considered that he could not do so unless the coroner first ruled on the relevance of the material in respect of which PII was to be sought.
The Chief Constable applied to quash the coroner's determination and for declaratory relief that the coroner's approach to disclosure was unlawful, contending that he could not require dissemination of a redacted version of the reports by deeming that material to be "generally relevant" without having determined the specific relevance of the material and that he had failed to have due regard to Art 2 ECHR
rights of third parties who might be identified in the reports in circumstances where a PII application could not be made unless the coroner had already determined the relevance of the material in question.
Application
[1] The applicant in this matter is the Chief Constable of the Police Service of Northern Ireland ("the applicant"). He seeks primarily declaratory relief with respect to the correct approach to be adopted to the disclosure of materials in coronial inquests where an application for public interest immunity ("PII") is to be brought.
[2] All of the deaths relevant to this application are described by the Senior Coroner for Northern Ireland in the course of his affidavit of 25 February 2010 ("the first affidavit") as deaths which "might be labelled as controversial deaths occurring during the course of the height of the Troubles. An issue that may arise is whether or not any of the deaths were caused as a consequence of an intention to kill on the part of the security forces, including the Royal Ulster Constabulary, the Army or their state agencies."
[3] The applicant is challenging the decision of HM Senior Coroner for Northern Ireland ("the coroner") on 15 January 2010 whereby he directed the applicant to make available to him redacted copies of the "Stalker" and "Sampson" reports for onward dissemination to the other interested parties in relation to the proposed resumption of inquests into the deaths of the persons named in the title to this application (the notice parties). The applicant objects to the coroner's refusal to first rule on the relevance of the said materials which thereby allegedly impedes the Chief Constable's application for a PII certificate for proposed redactions to the reports.
Background
[4] The background information and history of this matter is set out by Detective Chief Superintendent McCombe in an affidavit of 11 February 2010 wherein at para 8 et seq he avers as follows:
"8. The inquests into the deaths of Sergeant Quinn and Constables McCloy and Hamilton were concluded on 4 March 1983. These police officers were killed by a covert explosive device at Kinnego Embankment, Lurgan on 27 October 1982. The deaths of these officers formed part of an investigation conducted by the Stalker/Sampson investigative teams. Notwithstanding the fact that these inquests
concluded in March 1983 the Senior Coroner has requested the Attorney General to permit the re-opening of these inquests.
9. The inquests into the deaths of Gervaise McKerr, Eugene Toman and John Frederick Burns were abandoned by the Senior Coroner on 8 September 1994. He also indicated that he would not convene inquests into the deaths of Michael Tighe, Peter James Martin Grew and Roderick Martin Carroll in light of the limited access he was afforded to the Stalker/Sampson reports.
10. On 9 October 2007 the Senior Coroner convened a preliminary hearing into those deaths where he indicated that the ruling of the House of Lords in Jordan and McCaugheyUNK[2007] UKHL 14, [2007] Inquest Law Reports 44 may now provide a catalyst for the re-opening of these inquests. The coroner stated that he would not be able to make any final decisions on who would be a witness until he had read and considered both the Stalker and Sampson reports and their totality of evidence available to him. The coroner also indicated that he had not reached the conclusion that the resumption of these inquests was a viable exercise."
I pause to observe that this is still the coroner's position.
[5] In the coroner's first affidavit he confirmed that he has now read the Stalker report and the Sampson report though he had not read any of the underlying materials or appendices at that time ("the underlying material").
[6] It is common case that on 29 October 2008 the coroner convened a preliminary hearing in relation to these inquests. In his first affidavit at para 5 he avers:
"On that date I gave a written ruling in which I indicated that for inquest purposes not all of the contents of the reports were relevant. I also indicated at that time that access to the parts that I considered to be relevant would enable properly interested persons, particularly the bereaved families, to participate effectively in the inquest proceedings. Thus, I intended at that time, upon receipt of the redacted copies of the reports, to disseminate such material to the interested persons as I anticipated relevant to the issues arising within the inquest proceedings. Though there are no statutory provisions, instruments or rules relating to disclosure, such an approach was in accordance with the general practice of coroners at that time and also accorded with my general practice."
[7] The coroner went on to record that in light of
- the inquest into the deaths of Princess Diana and Dodi Al Fayed ("the Diana inquests") held in London before Scott Baker LJ from early 2007 until Spring 2008,
- correspondence with Martin Smith, solicitor to the Diana inquest as to the nature and extent of the disclosure of material given to properly interested persons in that inquest,
- the approach of Lord Hutton in the David Kelly Inquiry to the effect that "generous disclosure consistent with the principle of transparency was made to interested persons",
he had altered the view that he had taken previously on 29 October 2008.
[8] At para 11 of his first affidavit the coroner avers:
"In the letter of 25 November 2008 (to the Crown Solicitor) I advised that unless I was directed by a higher court that I am in error, I propose to follow the approach taken by Lord Hutton and Scott Baker LJ in relation to disclosure. I advise that I made the decisions that I did on 29 October in ignorance of their approach and the process that each followed."
[9] On 30 November 2009 a further preliminary hearing was convened into these inquests. In his first affidavit the coroner avers at para 19:
"I thus believe following this hearing, as indeed I believe did everyone, that redacted copies of the Stalker and Sampson reports would be made available by the PSNI (subject to the mechanics of it being sorted out in terms of copying) to all interested parties at the end of February 2010."
[10] In a second affidavit of 27 April 2010 the coroner has set out again his approach to the issue of disclosure in these inquests in the following paragraphs:
"6. In re-opening the present inquests, I have yet to determine whether any or all of the inquests will be viable. To a very large extent this depends on the amount of disclosure that I am able to obtain. This matter remains under review. Further in the event that inquest/inquests is/are considered viable, I have to determine the scope of the inquests.
7. As I explained in my earlier affidavit … I have read the...
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