McCord's Application
| Jurisdiction | Northern Ireland |
| Judge | Morgan LCJ,Stephens LJ,Treacey LJ |
| Judgment Date | 18 January 2019 |
| Neutral Citation | [2019] NICA 4 |
| Docket Number | MOR1087 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 18 January 2019 |
Neutral Citation: [2019] NICA 4
Court and Reference: Court of Appeal in Northern Ireland
Judges: Morgan LCJ, Stephens LJ, Treacey LJ
MOR1087
Appearances: Mr O'Rourke QC and Mr Moriarty for the applicant; Mr Coll QC and Mr Robinson for the PSNI; Mr McAteer for the Department of Justice.
Facts: The applicant's son had been murdered by loyalists in 1997. An inquest had never taken place as criminal investigations into the death were still ongoing. The applicant had sought leave to bring judicial review proceedings against the Police Service Northern Ireland (PSNI), the Department of Justice and the Coroner's Service seeking a declaration that the delay in conducting his son's inquest amounted to a breach of Art 2 ECHR. The judicial review had initially been brought to seek disclosure of non-sensitive investigations material, and was then varied to include allegations regarding delay. At a case management hearing, McCloskey J ordered a stay of the proceedings on grounds that “it would be pointless and disproportionate to adopt a course which would involve any further investment of finite public resources at this stage”. The Judge's reasoning was partly based on the proposition that forthcoming appellate decisions in cases regarding the retrospectivity of Art 2 ECHR would be relevant to the case, and partly because the Judge considered the decision in Jordan's Application[2015] Inquest LR 257, to be material. In that case, the Court of Appeal had postponed an award of damages for delay until the inquest proceedings had been finalised. The applicant now sought permission to appeal against a Judge's decision not to remove that stay.
Morgan LCJ (delivering the judgment of the Court)
1. This is an application for leave to appeal from a case management decision of McCloskey J given on 21 June 2018 when he refused the application for the removal of a stay on the hearing of the applicant's leave application to issue judicial review proceedings against the Police Service of Northern Ireland (“PSNI”), the Department of Justice and the Coroners Service, seeking a declaration that the delay in conducting an inquest into the death of his son violated his rights under Art 2 of the ECHR. Mr O'Rourke QC and Mr Moriarty appeared for the applicant, Mr Coll QC appeared with Mr Robinson for the PSNI and Mr McAteer appeared for the Department of Justice. We are grateful to counsel for their helpful written and oral submissions.
2. On 9 November 1997 the applicant's son was murdered by loyalists. The inquest was listed for a preliminary hearing before the coroner on 4 June 2001. On 2 September 2002 the Police Ombudsman for Northern Ireland (“PONI”) advised the applicant's solicitors that he was continuing to investigate complaints about whether a police informer had been involved in the murder but that he was unable to disclose any material under s63 of the Police (Northern Ireland) Act 1998.
3. On 22 January 2007 the PONI provided her report. The report stated that police information indicated that the applicant's son had brought cannabis into Northern Ireland on behalf of a person known as Informant 1. On 8 November 1997 the applicant's son went with others to the Maze prison to visit a prisoner. Information gathered by police suggested that the applicant's son was taken away by other men that night and killed. Informant 1 was suspected of ordering his killing following a dispute over the drugs for which the applicant's son had previously been arrested.
4. On 21 January 2011 the applicant's solicitors received correspondence from the Coroners Service which stated that the coroner was unable to list the matter as a Police Service of Northern Ireland (“PSNI”) investigation was ongoing. A preliminary hearing before the senior coroner on 30 April 2012 was adjourned until 5 September 2012 to ascertain what progress had been made in respect of that investigation. On 14 January 2013 the Crown Solicitor's Office indicated that an assisting offender had been entered into bail and that a preliminary enquiry had been set for May 2013. The letter stated that the assisting offender's criminal trial would have to conclude before any further investigative action could be undertaken by the PSNI and that it would be early 2014 before such investigations would be concluded.
5. On 6 June 2013 the Crown Solicitor's Office wrote to the applicant's solicitor to indicate that the preliminary hearing scheduled for 23 May 2013 had been adjourned by the Public Prosecution Service (“PPS”) and would be relisted at some stage in the autumn. On 27 January 2016 this case was reviewed by the Presiding Coroner, Weir LJ, as part of a review of...
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