McGowan's (Elizabeth) Application
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Judgment Date | 19 March 2019 |
| Neutral Citation | [2019] NICA 12 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 19 March 2019 |
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Neutral Citation No: [2019] NICA 12
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC10796
Delivered: 19/03/2019
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN
NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY ELIZABETH McGOWAN
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
-v-
THE CHIEF CONSTABLE OF THE PSNI
________
Before: Stephens LJ, Deeny LJ and McCloskey J
________
Glossary
ACC: Assistant Chief Constable
CS: Custody Sergeant Brian McKenna
DCC: Deputy Chief Constable
DOJ: Department of Justice
DS: Detective Sergeant
ECHR: European Convention of Human Rights and
Fundamental Freedoms
ECtHR: The European Court of Human Rights
HRA 1998: Human Rights Act 1998
NIPB: Northern Ireland Policing Board
PAP: Pre- action Protocol
PONI: Police Ombudsman for Northern Ireland
PPS: Public Prosecution Service
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SP9/2012: PSNI Service Procedure 9/2012: Misconduct
Procedures for Police Officers
The Victims Charter: “A Charter for Victims of Crime” (DOJ)
PSNI: Police Service of Northern Ireland
The 1998 Act: Police (NI) Act 1998
The 2000 Act: Police (NI) Act 2000
The 2003 Act: Police (NI) Act 2003
The 2000 Regulations: The Royal Ulster Constabulary (Conduct)
Regulations 2000
McCLOSKEY J (delivering the first judgment at the invitation of Stephens LJ)
Introduction
[1] The Applicant is the mother of David McGowan deceased (hereinafter
“the deceased”) who died in police custody on 30 May 2014, having been arrested
and placed in a cell. A police officer performing the duties of custody sergeant at
the material time (known and described hitherto in these proceedings as “CS”),
was suspended from duty by a decision of the Deputy Chief Constable of PSNI
with effect from June 2014. This was followed by a further decision, made by an
Assistant Chief Constable, in November 2014 whereby the suspension of CS was
revoked, prompting his return to work whereupon he was redeployed, being
assigned to administrative duties at Police HQ.
[2] The Applicant challenges this latter decision. She appeals to this court
against the judgment and order of Maguire J dated 21 December 2017 whereby
her application for judicial review was dismissed.
Anonymity Issues
[3] Attention is drawn to the following procedural matters:
(i) From the outset of these proceedings the Applicant was described
as XY, while the cipher CS was applied to the custody sergeant
concerned. These measures were stimulated by the fact of an
uncompleted investigation into the fatality and the related
possibility of a prosecution giving rise to a jury trial. Possible
prejudice to the latter eventuality was the driving consideration.
(ii) In accordance with rules of court and case management directions,
CS and his legal representatives have been on notice of these
proceedings, both at first instance and appeal, throughout. CS has
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not sought to participate actively. As the chronology in the next
succeeding paragraph demonstrates, CS was indeed prosecuted,
his trial was completed recently and the outcome was a judicially
directed jury verdict of not guilty.
(iii) In light of this latter development this court, on notice to and
without objection from CS, has ruled that there is no basis for
perpetuating either of the foregoing anonymity measures. While
the cipher CS continues to appear in this judgment, this is
essentially on convenience grounds, given that it has become so
ingrained in these proceedings. “CS” is Police Sergeant Brian
McKenna. There is no anonymity or publicity restriction of any
kind.
Chronology of Proceedings
[4] The Applicant’s legal challenge was initiated and progressed during a
substantial part of the period to which the above chronology belongs.
Proceedings were initiated in October 2015. In January 2016 leave to apply for
judicial review was granted. Following appropriate case management steps and
the accumulation of the Respondent’s evidence, Maguire J delivered a reserved
judgment on 21 December 2017. This was followed by the Applicant’s Notice of
Appeal, which is dated 30 January 2018. The substantive hearing in this court
was conducted on 24 September and 12 November 2018 and was followed by
further written submissions and certain additional evidence.
Agreed Factual Matrix
[5] The Court acknowledges the parties’ compliance with its direction to
provide a comprehensive schedule of agreed facts, which is hereby reproduced
with some minor modifications:
(i) 29 May 2014: The Applicant’s son is detained by the PSNI in
Lisburn PSNI station.
(ii) 30 May 2014: The Applicant’s son dies in a police cell. While the
precise cause of his death is not agreed the Report of Autopsy
states that it was due to the combined effects of alcohol and drugs,
recording that he was moderately intoxicated with alcohol and had
ingested at least three prescription drugs before being taken into
custody
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Re JR168 and Another’s Application (Suspension of police constable)
...of Stephens LJ, in the particular context of policing in Northern Ireland, in his concurring judgment in Re McGowan’s Application [2019] NICA 12 at para [105], that “it should also be recognised that when there is a public outcry it is likely that public confidence of at least a part of our......