JR131's Application
| Jurisdiction | Northern Ireland |
| Judge | Scoffield J |
| Judgment Date | 31 August 2021 |
| Neutral Citation | [2021] NIQB 74 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 31 August 2021 |
1
Neutral Citation No: [2021] NIQB 74
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: SCO11601
ICOS No: 19/110290/01
Delivered: 31/08/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY ‘JR131’ FOR JUDICIAL REVIEW
AND IN THE MATTER OF A DECISION OF THE
DOMESTIC PROCEEDINGS COURT
___________
David Heraghty (instructed by Higgins Hollywood Deazley, Solicitors) for the applicant
Laura McMahon BL (instructed by the Departmental Solicitor’s Office) for the respondent
___________
SCOFFIELD J
Introduction
[1] This is an application in which I granted leave to apply for judicial review (see
[2021] NIQB 2) in relation to the question of whether, and in what circumstances, it is
open to a district judge to hold an inter partes hearing in relation to an application for
a non-molestation order (NMO) in cases where the factual circumstances giving rise
to the application are also the subject of an ongoing criminal investigation or of
extant or anticipated criminal proceedings.
[2] The applicant was represented by Mr Heraghty, of counsel; and the
respondent district judge by Ms McMahon, of counsel. I am grateful to each of them
for their written submissions and their economical oral submissions.
Factual Background
[3] The background to the applicant’s case is set out in my ruling on leave but,
for convenience, is replicated below. It arises out of a number of offences alleged to
have been committed by the applicant against his wife, including a number of
allegations of rape, one of sexual assault and an allegation of administering a poison
in April 2019. The applicant was arrested in late June 2019 and interviewed on
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suspicion of a number of these offences. His evidence is that he “answered all
questions with respect to all allegations” in interviews with police. He was granted
pre-charge police bail to return to the police station on a later date. However, no
further PACE interviews were in fact held. Further interview was a live possibility
given that, in particular, at the time of his release on bail the results of toxicology
testing were awaited. Presently, the applicant’s case is with the Public Prosecution
Service for a decision in relation to charging. That was the position when the
decision of the district judge which the applicant seeks to impugn in these
proceedings was taken.
[4] Since allegations of rape and sexual assault have been made against the
applicant, I have anonymised him in this judgment – not to protect his own interests
but in light of the prohibition on the publication of matters likely to identify a
complainant (here, his wife) who alleges that she is the victim of a sexual offence,
pursuant to section 1 of the Sexual Offences (Amendment) Act 1992.
[5] A number of days after the incident in April 2019, the applicant’s wife made
an application for a NMO on an ex parte basis. The application was made on 2 May
2019 and the order was made on that date, to last until 29 May 2019. The case was
listed for hearing at Belfast Domestic Proceedings Court on 29 May 2019, with the
applicant summonsed to attend. An inter partes hearing did not proceed on that date
and the applicant’s solicitor has said that she would have advised the court that she
needed time to apply for legal aid and to take instructions. A further order was
granted on 29 May 2019 (in similar terms to the order which had been made on
2 May 2019), without any objection on the applicant’s behalf, and was made “until
further ordered”.
[6] The matter was then before the Domestic Proceedings Court (DPC) again on
3 July, 21 August and 16 October 2019. On the third of these dates, the district judge
listed the matter for an inter partes hearing to be held on 27 November 2019. It was
initially common case that, also on 16 October 2019, the earlier NMO which had been
granted came to an end; and no further interim order was granted. The applicant’s
evidence suggests that this was because he had been granted police bail, the
conditions of which included that he have no contact, directly or indirectly, with his
wife. The proposed respondent’s skeleton argument at the leave stage suggested
that it was because the district judge took the view that he had no power to extend
the interim order.
[7] At any rate, notwithstanding some further contention there then was about
this, it appeared to me when I considered the matter at the leave stage that the
interim order in favour of the applicant’s wife came to an end on 16 October 2019
and had not been revived thereafter, unless and until the matter was brought back
before the district judge and a further order made: see paragraphs [65]-[67] of the
leave ruling. The position was that there was therefore no ongoing protection for the
applicant’s wife (save for that provided by any relevant condition of the applicant’s
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McDade's (Ashleigh) Application and in the matter of a decision of Belfast Domestic Proceedings Court
...to police bail, including a condition precluding contact with the applicant. This is an issue which I addressed in Re JR131’s Application [2021] NIQB 74, at paras [41]-[44] and [47](e). A considerable focus of the applicant’s pre-action correspondence, sent on 2 March 2022, was on the guida......