Jordan's Application
| Jurisdiction | Northern Ireland |
| Judgment Date | 17 July 2009 |
| Date | 17 July 2009 |
| Court | Queen's Bench Division (Northern Ireland) |
[2009] NIQB 76
High Court, Northern Ireland HAR7581
Hart J
Mr McDonald QC and Ms Quinlivan for the applicant; Mr O'Donoghue QC and Mr Daly for the respondent; Mr McGleenan for the notice party, the Chief Constable of the Police Service of Northern Ireland.
Whether the coroner should recuse himself because of actual bias or an appearance of bias
The deceased was shot and killed by a police officer in 1992. There were several applications for judicial review in relation to the holding of the inquest (including Jordan v Lord ChancellorWLR[2007] 2 WLR 754, [2007] Inquest Law Reports 44; re Jordan's applicationIQLR[2009] Inquest Law Reports 24) and the applicant, the father of the deceased, successfully applied to the ECtHR (Jordan v UKIQLR[2001] Inquest Law Reports 101). The applicant
sought the coroner's recusal on the grounds of both apparent and actual bias demonstrated by his handling of pre-inquest issues including applications for disclosure, because of alleged predetermination of the outcome of applications for the granting of anonymity and/or screening of a number of witnesses, and because of delay.
1. Pearse Jordan was shot dead by a police officer described as Sergeant A in Belfast on 25 November 1992. The inquest into his death has been fixed for 4 January 2010, and this is an application by Hugh Jordan, the father of Pearse Jordan, that the Senior Coroner be removed from hearing this inquest on the grounds of both apparent and substantive (that is actual) bias, and because it is alleged that the Senior Coroner has predetermined the outcome of applications for the granting of anonymity and/or screening of a number of witnesses.
2. As Lord Bingham observed in Jordan v Lord ChancellorWLR[2007] 2 WLR 754, [2007] Inquest Law Reports 44, [2007] NI 217 at [2] "The inquest into the death of Pearse Jordan has been dogged by severe delay". A number of causes have contributed to this, and there have been several applications for judicial review and a successful application by Mr Jordan in the European Court of Human Rights against the UK. The judgment of the European Court at [2001] Inquest Law Reports 101, (2003) 37 EHRR 52 sets out the earlier procedural history at [11] to [54], and Lord Bingham has described the history of the proceedings that resulted in Mr Jordan's appeal to the House of Lords at [2], [3] and [32] of his speech in Jordan v Lord Chancellor.
3. As Mr McGleenan (who appears for the Chief Constable of the PSNI who is a notice party to this application) pointed out, in the last year there have been no fewer than six applications for judicial review relating to this inquest. Two were brought by the Chief Constable against the Senior Coroner, one by Mr Jordan against the Chief Constable, and two were brought by Mr Jordan against the Senior Coroner in February of this year. The present application is therefore the sixth application for judicial review in that time, and it will be necessary to refer to some of these applications later in the judgment.
4. It is common ground that the test to be applied in determining whether the Senior Coroner has displayed bias is that laid down by the House of Lords in Porter v MagillELR[2002] 2 AC 357 by Lord Hope when he said that:
"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
As Lord Bingham pointed out in Davidson v Scottish MinistersUNK[2004] UKHL 34 when considering actual bias:
"The expression is not a happy one since "bias" suggests malignity or overt partiality, which is rarely present. What disqualifies the judge is the presence of some factor which could distort the judge's judgment."
5. The Senior Coroner does not accept that he has displayed bias. As Lord Hope observed in Porter v Magill at [104]:
"… looking at the matter from the standpoint of the fair-minded and informed observer, protestations of that kind are unlikely to be helpful."
Referring to the decision of the European Court of Human Rights in Hauschildt v DenmarkHRC(1989) 12 EHRR 266 he pointed out that the Court emphasised "that what is decisive is whether any fears expressed by the complainer are objectively justified".
6. It is in the light of these principles, which I shall simply refer to for the sake of brevity and to avoid needless repetition as the Porter v Magill test, that the court must consider the criticisms of the Senior Coroner made by the applicant. Mr Barry Macdonald QC (who appears for the applicant with Miss Karen Quinlivan) relies upon eight separate matters as indicative of apparent or actual bias, and I shall consider those in turn. He also relies upon the cumulative effect of each of these matters and I shall return to this in due course. When dealing with the respective submissions of Mr Macdonald QC and Mr O'Donoghue QC (who appears for the Senior Coroner with Mr Ronan Daly) I do not propose to refer to every point made in their comprehensive and detailed written and oral submissions. Whilst it will be necessary on occasion to consider the evidence in some detail, I do not propose to refer to every detail in the voluminous documentation exhibited, which runs to over 600 pages of correspondence and other documents. I have carefully
considered all of the evidence and the submissions made to me.
(1) The Senior Coroner's conduct in relation to notes of consultations between Emmerson Callendar and three police witnesses
7. In September 2007 the Senior Coroner directed Mr Callendar of Forensic Science Northern Ireland (FSNI) to prepare a computer simulation of the collision which occurred between police vehicles and the car driven by Pearse Jordan prior to his being shot by Sergeant A. The Senior Coroner facilitated a demonstration by Mr Callendar of his simulation at the FSNI laboratory on 17 December 2008. It became apparent to the applicant's counsel and solicitor who were present that Mr Callendar had made notes of conversations which he had with a number of police officers in the course of the preparation of his simulation, and at [68] of the affidavit of Fearghal Shiels of the applicant's solicitors it is stated that:
"During that consultation Mr Callendar stated that he had prepared different simulations based on the instructions given by the drivers of the two police vehicles and one of the passengers. It was apparent that there was a difference in the accounts of the various officers. He also advised that he had had more than one consultation with each officer and that he had taken notes."
8. A request was made by Mr Macdonald about access to the notes, and it is the Senior Coroner's attitude towards this request and events which followed it that is described by Mr Shiels at [68] of his affidavit as "a significant factor in the applicant's decision" to apply to the Senior Coroner that he recuse himself from hearing this inquest. The applicant argues that the Senior Coroner's attitude towards this request when compared with his attitude towards the actions of the police in relation to the same file demonstrate either double standards on the part of the Senior Coroner, or the appearance of double standards. In his closing submissions Mr Macdonald submitted that the coroner's attitude implied a lack of trust in the applicant's representatives, and said that the submissions on behalf of the Senior Coroner imputed virtually dishonest motives to the applicant's legal representatives and further reinforced concern about the Senior Coroner's attitude. These are serious allegations and clearly indicate that the applicant's legal advisers are considerably exercised about this matter. It is therefore necessary to consider the sequence of events relating to this matter in detail. Whilst Mr Callendar has not made an affidavit, there is a lengthy email containing his account of what occurred which is one of the exhibits to the affidavit of Jackie Moore. She is now a solicitor in the Crown Solicitor's office, but until March 2009 was a legal adviser employed by the PSNI and was acting in the latter capacity at the time when these events occurred. There is also an affidavit from Robert Trevor McFarland who is an assistant investigator with the PSNI Legacy Inquest Unit based at Seapark at Carrickfergus. I have also had regard to the transcript of a hearing before the Senior Coroner on 22 January, as well as various letters exhibited by Mr Shiels. From these accounts it appears that what happened was as follows.
9. At this time there were applications for anonymity and screening for police officers who were listed as witnesses in the inquest before the Senior Coroner for him to determine, and when Mr Boyd of the Crown Solicitor's office contacted Jackie Moore on or about 18 or 19 December she realised that Mr Callendar's notes may contain information which would identify some or all or the officers involved, and that dissemination of these could compromise the anonymity and screening exercise.
10. Mr Boyd communicated this concern to the Senior Coroner, who then wrote to him on 19 December 2008 in the following terms:
"Following our conversation this morning I am writing to confirm that I have written to Mr Emmerson Callendar advising him that an officer from the PSNI will be making contact to view all the documentation he has in his possession relating to the computer simulation. I have said that access should be provided."
11. On 19 December 2008 Jackie Moore asked John Middlemiss, Head of the Public Inquiry Liaison Unit (presumably of the PSNI) to access the notes made by Mr Callendar
"to determine whether there was any such compromising material which could be subject to redaction prior to the disclosure of the notes to the coroner, and, possibly the next of kin."
12. On 7 January 2009 when Mr Callendar returned from...
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