In the matter of an application by Brenda Downes for Judicial Review
| Jurisdiction | Northern Ireland |
| Judge | Girvan J |
| Judgment Date | 2006 |
| Neutral Citation | [2006] NIQB 77 |
| Date | 05 July 2006 |
| Court | Queen's Bench Division (Northern Ireland) |
Neutral Citation no. [2006] NIQB 77
Ref:
GIRC5669
Judgment: approved by the Court for handing down
Delivered:
9/11/2006
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY BRENDA DOWNES
FOR JUDICIAL REVIEW
________
GIRVAN J
Introduction
[1] In this application the applicant seeks an order of certiorari quashing
the appointment of the Interim Victims Commissioner ("the IVC") and or
alternatively, a declaration that her appointment by the Secretary of State was
illegal. The application is based on five grounds. Firstly, it is contended that
the Secretary of State did not have legal authority to make the challenged
appointment. Secondly, it is alleged that in making the appointment the
Secretary of State failed to take account of a relevant consideration, namely
that there was no evidence that the appointee would command cross
community support. Thirdly, the Secretary of State made the appointment for
an improper purpose, namely for a political purpose in response to a demand
for “confidence building measures” by the Democratic Unionist Party ("the
DUP"). Fourthly, the applicants claimed to have a legitimate expectation that
any such post would be subject to advance consultation due to the practice
that had arisen of extensive consultation on victims' issues generally and the
need for a Victims Commissioner specifically. Finally, the case is made that
the involvement of the DUP in the process leading to the appointment of the
IVC and the failure to involve any other political party was contrary to
Section 76 of the Northern Ireland Act 1998.
[2] The five grounds referred represent the final pleaded case made by the
applicant. Initially Hart J at the leave stage granted leave only on the
legitimate expectation ground. On appeal the Court of Appeal on 22 May
2006 granted leave on the additional grounds referred to above save the last
ground which was added by leave of this court on an application by the
applicant subsequent to the Court of Appeal judgment.
2
[3] Mrs Bertha McDougall was appointed as the IVC on 24 October 2005.
She is the widow of a part-time member of the RUC who was shot dead in
January 1981 while on duty in Belfast. The applicant is a widow of John
Downes who was killed by a plastic bullet fired by an RUC Reserve Constable
on 12 August 1984. Both have thus suffered grievously as a result of the
Troubles.
[4] The applicant in her affidavit referred to the circumstances of her
husband’s death. This occurred just over a year after they married. She has
one child of the marriage. An RUC officer who was charged with his murder
was acquitted. The applicant feels aggrieved that she was not informed or
consulted by the prosecution in relation to the criminal proceedings or the
prosecution in general. As a victim of the Troubles she welcomed the
government victim strategy for people affected by the Troubles or who had
had relatives and friends injured or killed throughout that period. She
welcomed the concept of a Victims Commissioner as a move towards
recognising the impact of the legacy of the Troubles provided that the
Commissioner is independent and representative of the views of all victims
and is fairly appointed. She feels aggrieved that she only learned of the
appointment of the IVC through the media and did not know that such an
appointment could be made. It appears to her that Mrs McDougall could not
be seen as independent and impartial as she appears to be aligned with party
politics.
The Issues Relating to Victims Interests
[5] Issues relating to reconciliation and to the victims of violence were
touched on in the Good Friday Agreement in April 1998. In Section 6 of the
Agreement dealing with Rights, Safeguards and Equality of Opportunity
under the subheading Reconciliation and Victims of Violence paragraph 11
and 12 recorded:
“11. The participants believe that it is essential to
acknowledge and address the suffering of the
victims of violence as a necessary element of
reconciliation. They look forward to the results of
the work of the Northern Ireland Victims
Commission.
12. It is recognised that victims have a right to
remember as well as to contribute to a changed
society. The achievement of a peaceful and just
society would be the true memorial to the victims
of violence. The participants particularly
recognise that young people from areas affected by
the Troubles face particular difficulties and will
3
support the development of special community
based initiatives based on international best
practice. The provision of services that are
supportive and sensitive to the needs of victims
will also be a critical element and that support will
need to be channelled through both statutory and
community based voluntary organisations
facilitating locally based self-help and support
networks. This will require the allocation of
sufficient resources including statutory funding as
necessary to meet the needs of victims and to
provide for community based support
programmes.”
[6] In April 1998 Sir Kenneth Bloomfield the designated Commissioner for
Victims published his report “We Will Remember Them”. The intention of
establishing a Commission to look at possible ways to recognise the pain and
suffering felt by victims of violence arising from the Troubles of the last 30
years including those who had died or been injured in the service of the
community was announced by the Secretary of State in Belfast on 24 October
1997. Sir Kenneth’s terms of reference were to lead the Commission and to
examine the feasibility of providing greater recognition for those who have
victims in the last 30 years as a consequence of the events in Northern Ireland
recognising that the events had also had appalling repercussions on many
people outside Northern Ireland. The report, the product of painstaking and
sensitive investigation, contained a wide range of recommendations relating
to helping victims to deal with the trauma they had suffered and the practical
difficulties faced by them. One of the recommendations was that in the
longer term the interests of victims should be made the concern of a Standing
Commission or Protector or Ombudsman for Victims.
[7] The Government accepted the report and this led to the creation of the
Victims Liaison Unit in the Northern Ireland Office whose remit was to
progress work in that area. In the Office of First Minister and Deputy First
Minister (“OFMDFM”) a Victims Unit was established to raise awareness of
and coordinate activity affecting victims across the devolved administration.
This latter unit replaced the Victims Liaison Unit.
[8] In August 2001 a consultation paper on a victims' strategy was
published by the devolved administration and the Ministers with joint
responsibility for victims Dennis Haughey MLA and Dermot Nesbitt MLA.
This reflected the Northern Ireland Executive’s Programme for Government
which included a commitment to cross departmental strategy which would be
put in place during 2001-2002 to meet the needs of victims through effective,
high quality help and services. The Ministerial Foreword to the Consultation
Paper stated that the consultation would be valuable in developing a strategy.
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