Jordan's (Theresa) Application
| Jurisdiction | Northern Ireland |
| Judge | Stephens LJ |
| Judgment Date | 2018 |
| Neutral Citation | [2018] NICA 34 |
| Date | 15 October 2018 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation: [2018] NICA 34 Ref:
STE10611
Judgment: approved by the Court for handing down Delivered:
15/10/2018
(subject to editorial corrections)*
IN THE COURT OF APPEAL IN NORTHERN IRELAND
________
IN THE MATTER OF AN APPLICATION BY THERESA JORDAN
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
________
Before: STEPHENS LJ, DEENY LJ and COLTON J
________
STEPHENS LJ (delivering the judgment of the court)
Introduction
[1] On 25 November 1992, shortly after 5.00pm, Patrick Pearse Jordan, then aged
22, (“the deceased”) was shot and killed at Falls Road, Belfast, by an officer of the
Royal Ulster Constabulary (“the RUC”) later identified as Sergeant A, a member of
the RUC’s Headquarters Mobile Support Unit (“HMSU”). This is an appeal against
the refusal by Keegan J to grant leave to the applicant, Theresa Jordan, the mother of
the deceased to apply for judicial review in respect of the verdict of the Coroner,
Horner J (“the Coroner”), which verdict was delivered on 7 November 2016
following an inquest into the death of the deceased. Previous judicial review
proceedings have been brought by Hugh Jordan, the father of the deceased, but due
to an unfortunate deterioration in his health he has been unable to bring this
application. The Coroner is the proposed respondent and the Chief Constable of the
PSNI (“the Chief Constable”) is a proposed notice party.
[2] Prior to the hearing before Keegan J and in accordance with Practice Note
1/2008 revised on 10 October 2013, notice of the leave hearing was given to the
Coroner and to the Chief Constable. The applicant, the Coroner, and the
Chief Constable all submitted detailed skeleton arguments and appeared by counsel
to make oral submissions before Keegan J.
[3] The appeal initially came before us as an appeal against the refusal by
Keegan J to give leave to apply for judicial review. The test for leave to apply for
judicial review is “the demonstration of an arguable case with a reasonable prospect
of success,” see paragraphs [5] and [43] of Omagh District Council v The Minister with
2
responsibility for Health Social Services and Public Safety [2004] NICA 10 and paragraph
[9] of the Chief Constable PSNI’s application [2008] NIQB 100. There may be an
enhanced arguability threshold in some circumstances, see the observations of
Gillen J in Colin Armstrong’s Application for leave to bring Judicial Review [2007] NIQB
20, the decision of the Court of Appeal in England and Wales in Mass Energy Limited
v Birmingham City Council [1994] ENV LR 298 and the observations of Keene J in
R v Cotswold District Council ex parte Barrington [1998] 75 P and Cr 515. However,
absent an enhanced arguability threshold and if the applicant demonstrated an
arguable case with a reasonable prospect of success the situation would arise of
allowing the appeal with a further hearing at first instance to be followed by the
prospect of a further appeal back to this court. Each of the parties has confirmed
that all the material on which they wish to rely for a substantive hearing was before
this court. In circumstances where this court has to consider all the material in order
to determine whether there is an arguable case with a reasonable prospect of success
which in itself involves a considerable degree of analysis and a consideration of the
relevant authorities we considered that if we were of the view that there was such an
arguable case then we should proceed to hear and determine the substantive
application under Order 53 Rule 5(8) of the Rules of the Court of Judicature
(Northern Ireland) 1980, see Re Rice’s Application [1998] NI 265 at 268 and Re SOS’s
Application [2003] NIJB 252 at 254 paragraph [5]. Therefore in the event the hearing
before us was a rolled up hearing of both the appeal against the refusal of leave and
if then appropriate a determination of the substantive application.
[4] The appearances in this Court are the same as before Keegan J. Mr McDonald
QC SC and Ms Quinlivan QC appeared on behalf of the applicant. Mr Doran QC
and Mr Skelt appeared on behalf of the Coroner in accordance with the guidance of
this court in Jordan’s (Hugh) Applications [2014] NICA 36 as to the role of the Coroner
where his decision is the subject of judicial review proceedings. Mr McGleenan QC
and Mr Colmer appeared on behalf of the Chief Constable.
[5] We have had the benefit of a 54 page skeleton argument on behalf of the
applicant dated 27 February 2018, a 19 page skeleton argument on behalf of the
Coroner dated 6 March 2018 and an 18 page skeleton argument on behalf of the
Chief Constable dated 7 March 2018. We have also been provided with and have
considered 3 small and 6 large lever arch files of documents and 2 lever arch files of
authorities. We have had the benefit of oral submissions on behalf of the applicant,
the Coroner and the Chief Constable. We are grateful for the assistance which has
been provided to us.
The first two inquests
[6] The first inquest into the death of the deceased commenced on 4 January 1995
but was adjourned, part heard, without a verdict.
[7] The second inquest into the death of the deceased was heard before the
Coroner, Mr Sherrard, with a jury between 24 September 2012 and 26 October 2012.
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On 31 January 2014, sitting in the High Court, I quashed the verdict in relation to
that inquest, see Jordan’s Applications [2014] NIQB 11. The order which I made was
affirmed on appeal under citation [2014] NICA 76.
The third inquest
[8] The third inquest into the death of the deceased, which is the subject of this
application for judicial review, was heard by Horner J, an independent High Court
judicial officer sitting as a Coroner without a jury. There is discretion under Section
18(2) of the Coroners Act (Northern Ireland) 1959 not to summons a jury. At
paragraph [4] of his verdict the Coroner set out the position that there was no
request by any of the parties for a jury. At paragraphs [64] he set out an observation
as to two different and distinct narratives arising on the facts as being:
“On the one hand, a young man, unarmed, running away
following a car chase is shot in the back three times by an
armed police officer. On the other there is a terrorist
escaping from a car which is suspected of carrying
munitions and which has had to be stopped forcibly by
the police, and who is suspected of being armed. He is
shot in the back when he acts in a way that the police
officer considers places him and his colleagues in mortal
danger.”
The Coroner considered that in this inquest a “jury in Northern Ireland is likely to
display the divisions which disfigure this society.” He exercised his discretion not to
summons a jury.
[9] The hearing took place in public and occupied a total of 16 days over the
period 22 February 2016 to 21 April 2016. In addition there were also other hearing
days devoted to the issues of public interest immunity, anonymity and screening.
[10] The next of kin were represented throughout the inquest by two highly
experienced and capable senior counsel instructed by an extremely competent firm
of solicitors. All the legal representatives had through their prior involvement in
relation to this death and also by virtue of their involvement in other legacy cases a
vast repository of knowledge. In short throughout the inquest the next of kin were
able to contribute to the proceedings and actively participate in them with the
benefit of highly experienced and capable legal representatives.
[11] The Coroner listed at paragraph [12] of his verdict the 17 main police and
military witnesses who made statements and/or gave evidence at the inquest.
Those witnesses who gave evidence included Sergeant A. The legal representatives
of the next of kin were able to cross-examine every witness including the key
witnesses.
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Re Jordan's Application for Judicial Review
...Rights upheld Mr Jordan's complaint and awarded him £10,000 in respect of non-pecuniary damage, together with costs and expenses: Jordan v United Kingdom (2003) 37 EHRR 3 A fresh inquest into Pearse Jordan's death commenced on 24 September 2012, and a verdict was delivered on 26 October 201......
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In the matter of a series of deaths that occurred in August 1971 at Ballymurphy, West Belfast
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...Re Rice’s Application [1998] NI 265 at 268, Re SOS’s Application [2003] NIJB 252 at 254 paragraph [5] and Jordan's (Theresa) Application [2018] NICA 34 at paragraph [3]. On that basis the hearing before us was a rolled up hearing. [3] Mr Hutton appeared on behalf of the appellant. Mr Sayers......
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