Owen's (Irene) Application
| Jurisdiction | Northern Ireland |
| Judge | Morgan LCJ |
| Judgment Date | 27 June 2017 |
| Neutral Citation | [2017] NICA 43 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 27 June 2017 |
1
Neutral Citation No: [2017] NICA 43
Ref:
MOR10361
Judgment: approved by the Court for handing down
Delivered:
27/6/17
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL 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 IRENE OWENS
FOR JUDICIAL REVIEW
________
Before: Morgan LCJ, Weatherup LJ and Keegan J
________
MORGAN LCJ (delivering the judgment of the court)
[1] This is an appeal against the decision of Treacy J on 14 April 2015 to dismiss
the appellant’s application for judicial review of decisions of the Secretary of State
for Northern Ireland (“the respondent”) to refuse to disclose material relating to the
murder of the appellant’s brother, Bobby Moffett, to the Senior Coroner for Northern
Ireland (“the Coroner”). The material forms part of the archive of the International
Monitoring Commission (“the IMC”). Mr Scoffield QC and Ms Doherty QC
appeared for the appellant and Mr McGleenan QC and Ms Murnaghan QC appeared
for the respondent. We are grateful to all counsel for their helpful written and oral
submissions.
Background
[2] The statutory and factual background was helpfully set out by the learned
trial judge and for convenience we largely repeat it here. Mr Moffett was shot dead
on Shankill Road, Belfast on 28 May 2010. No one has been prosecuted in relation to
his murder. The appellant’s belief is that her brother’s murder is one of a number of
cases where some of those responsible for the murder may have been state agents
and/or been given some measure of protection from prosecution by state
authorities. The PSNI indicated in April 2014 that the police investigation remained
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open but there were no active lines of enquiry being pursued at that time. In 2012
family members of Mr Moffett made a complaint about the investigation to the
Police Ombudsman. By letter dated 6 November 2014 the Ombudsman indicated
that the allegations made by the appellant were the subject of an extremely
complicated and sensitive investigation spanning many years. He anticipated that
the investigation would take some considerable time to conclude.
[3] The IMC reported on the murder, following “extensive enquiries”, in its 24th
Report published on 15 September 2010. It concluded that the leadership of the UVF
was implicated in the murder and that the murder was committed by members of
the UVF acting as such. The Coroner decided to hold an inquest into the death and
on 20 September 2010 wrote to the IMC requesting provision of the material
grounding the 24th Report. A response, dated 15 October 2010, from solicitors for the
IMC outlined the international agreement and domestic legislation governing the
IMC and indicated that it would not be releasing any material to the Coroner. It
stated:
“Our clients have carefully considered your request
and do not consider that it is appropriate in the
circumstances to waive any of the said immunities or
privileges. This decision is based upon our client’s
policy that, to enable them to carry out their legal
functions, the confidences they receive must be
maintained.”
The Coroner sought senior counsel’s opinion, which was provided on 5 January
2011, and he concluded that “the Commission is effectively immune from any
attempt on the part of the coroner to compel it to produce the documents and/or
information sought”.
[4] The IMC ceased operations on 31 March 2011 and its archive passed to the
joint control of the UK and Irish governments. By letter dated 29 October 2012 the
Coroner wrote to the appellant’s solicitor in connection with the proposed inquest,
enclosing the correspondence with the IMC. Under cover of a letter dated 8
November 2012 the Coroner provided a copy of the opinion from senior counsel that
he had obtained. The appellant’s solicitor then wrote to the respondent seeking
release to the Coroner of the IMC material relevant to Mr Moffett’s murder. That
request was refused by letter from the respondent dated 13 February 2013 which
stated:
“… Article 4 of the Northern Ireland (Monitoring
Commission etc.) Act 2003 (Cessation of Provisions)
Order 2011 confers inviolability on the IMC archive
until such time as Her Majesty’s Government with the
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