Eilish Morley (on her own behalf as personal representative of the estate of Eoin Morley (deceased)) and The Ministry of Defence and Peter Keeley and The Chief Constable of the Police Service of Northern Ireland and The office of the Police Ombudsman for Northern Ireland

JurisdictionNorthern Ireland
JudgeHorner J
Judgment Date13 February 2020
Neutral Citation[2020] NIQB 77
CourtQueen's Bench Division (Northern Ireland)
Date13 February 2020
1
Neutral Citation No: [2020] NIQB 77
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: HOR11062
Delivered: 13/02/2020
2011/047304/03/A01
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION
________
BETWEEN:
EILISH MORLEY
(ON HER OWN BEHALF AS PERSONAL REPRESENTATIVE OF THE ESTATE
OF EOIN MORLEY (DECEASED)) Plaintiff/Appellant;
and
THE MINISTRY OF DEFENCE First Defendant;
and
PETER KEELEY Second Defendant;
and
THE CHIEF CONSTABLE OF THE POLICE SERVICE OF
NORTHERN IRELAND Third Defendant;
and
THE OFFICE OF THE POLICE OMBUDSMAN FOR NORTHERN IRELAND
Respondent.
________
Daniel Friedman QC with Stephen Toal for the Plaintiff/Appellant (Instructed by
KRW Law)
Fiona Doherty QC with Steven McQuitty and Michael Maguire for the
Ombudsman
________
2
HORNER J
A. INTRODUCTION
[1] Eilish Morley (“the plaintiff”) is the personal representative of Eoin Morley
(Deceased) (“the Deceased”). She sues in respect of the Deceased’s death on 15 April
1990. She claims he was murdered by Peter Keeley (“PK”), the second-named
defendant, ██who, it is alleged, was working for the Force Research Unit (“FRU”),
part of the Ministry of Defence, the first defendant, at the time. It is alleged that PK
had infiltrated the Provisional IRA (“PIRA”) and was acting as an informant for the
first defendant when he, along with another man, shot and killed the Deceased who,
it is alleged, was a member of the Irish People’s Liberation Organisation (“IPLO”), a
proscribed terrorist organisation. The Deceased had previously been a member of
PIRA. █ █ █ █ █ █ █ █ █ █ █ █ █ █ . It is essential that the full background against
which this application is made is fully understood. I will provide further
information later in the judgment.
[2] The plaintiff has recently amended the Statement of Claim to include
paragraphs 24A and 25A. The allegations raised by these amendments will not be
heard in open court (“OPEN”) but because of the sensitive and secret issues they
raise they will be heard in a closed material procedure (“CMP”). A CMP takes place
when it is not possible for the case to be tried fairly and in accordance with the
principle of open justice. In 2013 Parliament legislated in the form of the Justice and
Security Act 2013 (“JSA”) to permit a CMP which allows “imperfect justice” instead
of requiring the State to claim public interest immunity (“PII”). This means that a
trial can proceed rather than having to be aborted because of the PII, that result
being “no justice at all”: see Belhaj v DPP [2018] 3 WLR 435. I will discuss this in
more detail later on in the judgment.
[3] The plaintiff seeks disclosure of two categories of documents, Category A and
Category B, which she alleges are in the possession, custody and control of the Office
of the Police Ombudsman for Northern Ireland (“PONI”) who carried out an
investigation into the conduct of the third defendant, his servants and agents, arising
out of the death of the Deceased. She says that they are relevant to the issue of
liability in respect of her claim against the defendants for compensation for the
Deceased’s death and whether there has been a breach of various obligations owed
by the State including the right to life under Article 2 of the European Convention on
Human Rights (“ECHR”). The documents in both Categories are considered
sensitive by PONI and the court was told that any of them that are relevant would,
absent a CMP, be the subject of a claim for PII. PII was originally called “Crown
privilege”. PII may be: an objection to disclose whether a person has documents; or
an objection to producing those documents; or both. It was originally considered
that a claim for PII was a duty, not a right, and could not be waived by the court.
This view has been somewhat watered down with the passing of the years. In
R v Chief Constable of West Midlands ex p Wiley [1995] 1 AC 274 Lord Woolf MR
3
doubted whether a court would intervene should the Minister decide that he had no
objection to production of a document. It is thought that the only scenario where a
court might impose immunity which was not claimed is when documents “were
held by an individual who might not be well placed to reach a decision on what was
in the public interest: see Savage v Chief Constable of Hampshire [1997] 1 All ER 631
and Hollander on Documentary Evidence (13th Edition) at 22.10. When a claim for PII is
made, the court has to determine whether disclosure ought to take place and, if so, in
what form. On the one hand there is a general public interest in open justice and a
fair trial and on the other there is the public interest in, for example, protecting
national security and safeguarding material leading to the identity or activities of
informers. The trial judge does not have to treat a claim for PII as being conclusive.
The judge may examine the document or documents and try and balance the
competing interests for disclosure and non-disclosure. The judge can refuse
disclosure of the document(s) or order the disclosure of certain parts only of the
document or documents, or order disclosure only to solicitors and counsel or require
a gist to be provided; for further discussions: see Valentine on Civil Proceedings - The
Supreme Court 13.46-59 and Hollander on Documentary Evidence (13th Edition) at 22.09.
The purpose of imposing terms in the discovery process is to protect the public
interest but still ensure that disclosure, even though that disclosure may be limited,
takes place.
[4] It is important to understand that the plaintiff does not want the Category A
or Category B documents to be produced to her or her solicitors. She wants them to
be produced to the CMP hearing, but with the further prospect that at least some of
the documents will be transmitted onwards into the OPEN.
[5] PONI has sought to take a constructive attitude to the plaintiff’s application
for disclosure. The court was told that it was not the intention of PONI to frustrate
this application. Indeed, PONI has stated that it “remains committed to the
provision of all legally disclosable documents”: see letter of 21 February 2019. But
PONI does have certain real reservations about making disclosure and is keen to
ensure, according to Louisa Fee, the Director of Legal Services at PONI, that:
(i) The integrity and operational effectiveness of PONI’s office and any extant
investigations are not compromised by any disclosure;
(ii) PONI protects sensitive, confidential or secret information that is in his
possession, custody or power and seeks to protect the human rights and the
interests of others and further that he does no harm to the human rights and
interests of others, so far as is possible;
(iii) PONI operates within the law at all times; and
(iv) PONI does not make disclosure unless a legal justification has been
established and further that there is a lawful means or mechanism by which

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