JR216, Raymond Fitzsimons and The Police Federation for Northern Ireland; Applicant A, Applicant B and Raymond Fitzsimons and The Police Federation for Northern Ireland and JR217’s Applications and in the matter of decisions of The Police Ombudsman for Northern Ireland (Leave stage)
| Jurisdiction | Northern Ireland |
| Judge | Scoffield J |
| Judgment Date | 29 November 2022 |
| Neutral Citation | [2022] NIKB 28 |
| Court | King's Bench Division (Northern Ireland) |
| Date | 29 November 2022 |
1
Neutral Citation No: [2022] NIKB 28
Judgment: approved by the court for handing down
(subject to editorial corrections) *
Ref: SCO11996
ICOS No: 22/031234/01;
22/037209/01;
22/047365/01
Delivered: 29/11/2022
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
KING’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF APPLICATIONS BY
(1) JR216, RAYMOND FITZSIMONS (AS CHAIRMAN OF THE
NORTHERN IRELAND RETIRED POLICE OFFICERS’ ASSOCIATION) and
THE POLICE FEDERATION FOR NORTHERN IRELAND;
(2) APPLICANT A, APPLICANT B and RAYMOND FITZSIMONS (AS
CHAIRMAN AND REPRESENTATIVE OF THE NORTHERN IRELAND
RETIRED POLICE OFFICERS’ ASSOCIATION); and
(3) JR217;
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS OF
THE POLICE OMBUDSMAN FOR NORTHERN IRELAND
___________
David McMillen KC and Richard Smyth (instructed by Edwards & Co, Solicitors) for the
applicants in the first and third cases
David McMillen KC and Andrew Brown (instructed by McCartan Turkington Breen,
Solicitors) for the applicants in the second case
Simon McKay (instructed by the Legal Directorate of the Office of the Police
Ombudsman) for the proposed respondent in the first and second cases
Neasa Murnaghan KC and Steven McQuitty (instructed by the Legal Directorate of the
Office of the Police Ombudsman) for the proposed respondent in the third case
Karen Quinlivan KC and Leona Askin (instructed by Madden & Finucane) for two
interested parties in the first case
Sean Devine (instructed by KRW Law) for interested parties in the first and second cases
___________
2
SCOFFIELD J
Introduction
[1] There are three applications for leave to apply for judicial review before the
court which raise the same or similar issues. In each case, the challenge is directed
towards a public statement made by the Police Ombudsman for Northern Ireland
(PONI) (“the Ombudsman”) under section 62 of the Police (Northern Ireland) Act
1998 (“the 1998 Act”):
(a) In the first case, there are three applicants: JR216, a retired police officer;
Mr Raymond Fitzsimons, acting as Chairman of the Northern Ireland Retired
Police Officers’ Association (NIRPOA); and the Police Federation for
Northern Ireland (“the Federation”). They seek to challenge the decision of
the proposed respondent to publish a statement on 13 January 2022 relating to
the investigation into police handling of certain paramilitary murders and
attempted murders in the North West of Northern Ireland during the period
1989 to 1993. The statement related to the Ombudsman’s investigation known
as ‘Operation Greenwich.’ The first applicant in this case worked as a
detective in the RUC’s North Region at the time of the policing activities there
which were the subject of the Ombudsman’s investigation.
(b) In the second case, there are three applicants: Applicant A, a retired police
officer; Applicant B, a retired police officer; and Mr Fitzsimons, again acting
as Chairman and representative of NIRPOA. They seek to challenge the
decision of the proposed respondent to publish a statement on 8 February
2022 relating to the investigation into police handling of loyalist paramilitary
murders and attempted murders in South Belfast during the period 1990 to
1998. The statement related to the Ombudsman’s investigation known as
‘Operation Achille.’ The first applicant in this case is a retired Chief Inspector
and was also the officer in charge of the Weapons and Explosives Research
Centre (WERC) during the period covered by the Ombudsman’s
investigation. The second applicant is a retired Detective Constable who was
tasked as an agent handler in South Belfast during a significant period
covered by the Ombudsman’s investigation, who has particular concern
about the Ombudsman’s conclusions and determinations which are relevant
to Special Branch.
(c) In the third case, the applicant (JR217) is a retired police officer who seeks to
challenge a statement published by the Ombudsman on 10 June 2022 in
relation to complaints about the arrest and detention of four persons detained
at Strand Road Police Station in Derry/Londonderry between 26 February
1979 and 1 March 1979. This was in relation to the Ombudsman’s
investigation known as ‘Operation Farrier.’ The applicant was one of the
officers involved in the questioning of the complainants whilst they were in
detention and about whose conduct they complained.
3
[2] Mr McMillen KC appeared for all three applicants, with Mr Smyth in the first
and third case and with Mr Brown in the second case. Mr McKay KC appeared for
the Ombudsman in the first and second cases. Ms Murnaghan KC appeared with
Mr McQuitty for the Ombudsman in the third case. Ms Askin appeared (led by
Ms Quinlivan KC) for family members of two of the deceased whose murders were
considered in the Ombudsman’s statement in the first case; and Mr Devine appeared
for a family member of one of the deceased whose murder was considered in the
statement which is the subject of each of the first and second cases respectively. I am
grateful to all counsel for their helpful written and oral submissions.
[3] In several respects, these cases are a sequel to the decision of the Court of
Appeal in Re Hawthorne and White’s Application [2020] NICA 33, which is discussed in
greater detail below. Each side relies upon that judgment as support for their
position. Unfortunately, it seems clear that, notwithstanding the determination of
the Court of Appeal in that case and the guidance which its judgment co ntains, the
precise nature of the Ombudsman’s role in relation to legacy investigations, and the
extent of her powers in respect of statements issued by her following such
investigations, remains a running sore between her office on the one hand and
former officers who are or may be the subject of such investigations and their
representative bodies on the other.
[4] Colton J, who was previously case managing these proceedings, listed the
three leave applications in succession and allocated one day to each hearing. I have
heard extremely detailed argument over four days in the course of the leave
hearings and do not purport that the following ruling does full justice to all of the
points which have been explored to greater or lesser degrees. The purpose of this
written judgment is to express my conclusions on the main points in issue between
the parties at this stage and to give clarity on which aspects of each case is being
permitted to proceed and why. It is longer than one might expect for a ruling on
applications for leave; but this reflects the breadth and depth of argument deployed
on each side in each case.
[5] The purpose of the leave stage in judicial review proceedings is to weed out
cases (or sometimes individual grounds within cases) which ought not be permitted
to proceed because there is some ‘knock-out blow’ which renders it inappropriate for
the court to proceed to determine the issue substantively. The knock-out blow may
relate to the substance of the case, where it is hopeless or does not raise an arguable
ground with a realistic prospect of success; or may relate to procedural objections,
such as the applicant’s lack of standing or their delay in commencing proceedings.
In the present cases, the proposed respondent has raised objections on all of these
fronts. I consider that there is merit in some of the objections she has raised.
However, my ultimate conclusion is that each case raises some ground or grounds
which can appropriately, and should, be considered in substance by the court. In
part, this is in order to provide an opportunity for further argument on, and for the
court to provide further guidance in relation to, the nature and extent of the
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