McQuillan's (Margaret) Application
| Jurisdiction | Northern Ireland |
| Judge | Maguire J |
| Neutral Citation | [2018] NIQB 99 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 13 April 2018 |
1
Neutral Citation No: [2018] NIQB 99
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: MAG10571
Delivered: 13/04/2018
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
No. 15/57619/02
IN THE MATTER OF AN APPLICATION BY MARGARET McQUILLAN
FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS AND ON-GOING FAILURES
OF THE SECRETARY OF STATE FOR NORTHERN IRELAND,
THE MINISTER OF JUSTICE FOR NORTHERN IRELAND
AND THE CHIEF CONSTABLE OF THE POLICE SERVICE
OF NORTHERN IRELAND
________
SUPPLEMENTARY JUDGMENT
________
MAGUIRE J
Introduction
[1] The court delivered its judgment in this case on 3 March 2017 following a
three day hearing of the substantive judicial review.
[2] The judgment and order of the court was made the subject of an appeal by the
Police Service of Northern Ireland (“PSNI”) and the appeal was listed for hearing on
6 December 2017.
[3] As a result of a hearing on that date the Court of Appeal made an order after
hearing from the parties.
[4] This order, in its material part for present purposes, reads:
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“The Court –
(1) ALLOWS the appellant to withdraw the
concessions made in the lower court.
(2) ALLOWS the respondent to amend the Order
53 Statement by 13 December 2017.
(3) LISTS the matter before Mr Justice Maguire on
18 December 2017 … Mr Justice Maguire is to hear
any additional points in the amended Order 53
statement and any points arising from the
withdrawal of the concession.”
[5] In the light of the above, the court on 18 December 2017 set a day for a further
hearing which took place on 5 February 2018.
[6] It is as a result of this further hearing that the court produces this
supplementary judgment which it will add to its original judgment.
The withdrawal of the concession
[7] This is no dispute between the parties that at the substantive hearing of the
applicant’s judicial review the PSNI made a concession that Article 2 ECHR applied
to the circumstances of the applicant’s case and that this was, accordingly, not an
issue the court had to determine. The basis for the concession was alluded to at
paragraph [52] of the court’s original judgment where it is recorded that:
“Whether or not Article 2 could enter the case by
other routes, it entered it by means of the operation of
the approach adopted by the European Court of
Human Rights in Brecknell v United Kingdom (2008)
46 EHRR 957.”
[8] The court, in the following paragraphs, went on to explain what the Brecknell
approach was. It is not necessary to set out here all of what the court said but the
pith of the matter is referred to at paragraph [54] where it is noted that:
“In the present case the parties all accept that Article 2
has been revived because of the uncovering of the
military logs. The consequence is that the authorities
found themselves under an obligation to investigate.”
[9] There was no dispute, further, that in any Brecknell type case, where there
had been a revival of the Article 2 obligation, this gives rise to the need for any
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McQuillan, Re Application for Judicial Review
...NI 583) the court had allowed an appeal by Margaret McQuillan, sister of the late Jean Smyth, against the order of Mr Justice Maguire([2018] NIQB 99)dismissing her judicial review claim for a new investigation into her sister's death to be carried out by independent investigators. In the se......