Re Jordan's Application for Judicial Review

 
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[2019] UKSC 9

Supreme Court

Hilary Term

On appeal from: [2015] NICA 66

before

Lady Hale, President

Lord Reed, Deputy President

Lord Carnwath

Lord Lloyd-Jones

Lady Arden

In the matter of an application by Hugh Jordan for Judicial Review (Northern Ireland)

Appellant

Karen Quinlivan QC

Fiona Doherty QC

(Instructed by Madden and Finucane Solicitors)

1 st Respondent

Sean Doran QC

Ian Skelt

(Instructed by Coroners Service for Northern Ireland)

2 nd Respondent

Tony McGleenan QC

Martin Wolfe QC

Adrian Colmer

(Instructed by Crown Solicitor's Office (Belfast))

3 rd Respondent

Peter Coll QC

Philip McAteer

(Instructed by Departmental Solicitor's Office)

Respondents:

(1) Coroners Service for Northern Ireland (written submissions only)

(2) Chief Constable of the Police Service for Northern Ireland

(3) Department of Justice

Heard on 23 October 2018

Lord Reed

( with whom Lady Hale, Lord Carnwath, Lord Lloyd-Jones and Lady Arden agree)

1

The central issue in this appeal is whether the Court of Appeal in Northern Ireland was entitled to order that a claim for damages under section 8 of the Human Rights Act 1998, for breach of the requirement under article 2 of the European Convention on Human Rights that an investigation into a death should begin promptly and proceed with reasonable expedition, should not be brought until an inquest has been concluded, or if already brought should be stayed until after that date.

The facts
2

The appellant's son, Pearse Jordan, was shot and killed by a member of the Royal Ulster Constabulary on 25 November 1992. In 1994 the appellant's husband, Hugh Jordan, made an application to the European Court of Human Rights, complaining that the failure to carry out a prompt and effective investigation into his son's death was a violation of article 2. An inquest commenced on 4 January 1995 but was adjourned shortly afterwards. On 4 May 2001 the European Court of Human 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 2.

3

A fresh inquest into Pearse Jordan's death commenced on 24 September 2012, and a verdict was delivered on 26 October 2012. Hugh Jordan then brought proceedings for judicial review of the conduct of the inquest, which resulted in the verdict being quashed: In re Jordan's application for Judicial Review [2014] NIQB 11. A subsequent appeal against that decision was dismissed: [2014] NICA 76.

4

In 2013 Hugh Jordan brought the present proceedings for judicial review, in which he sought declarations that the Coroner and the Police Service of Northern Ireland (“PSNI”) had been responsible for delay in the commencement of the inquest in violation of his rights under article 2, together with awards of damages under section 8 of the Human Rights Act in respect of the delay from 4 May 2001 until 24 September 2012. Stephens J upheld the claim against the PSNI, finding that there had been a series of failures to disclose relevant information until compelled to do so, and also a delay in commencing a process of risk assessment relating to the anonymity of witnesses: [2014] NIQB 11, paras 350–359. Following a further hearing in that case and five other similar cases, he made a declaration that the PSNI “delayed progress of the Pearse Jordan inquest in breach of article 2 of the European Convention on Human Rights and contrary to section 6 of the Human Rights Act 1998”, and awarded damages of £7,500: [2014] NIQB 71.

5

The Chief Constable of the PSNI appealed against the declaration and award of damages, contending that although the PSNI might have been responsible for part of the delay, they should not have orders made against them where other state authorities had also been responsible for the delay but were not party to the proceedings. Hugh Jordan cross-appealed against the dismissal of his claim against the Coroner. The Department of Justice was joined as a respondent to the proceedings.

6

It is a matter of agreement before this court that, at the hearing of the appeal, the Court of Appeal raised a preliminary issue relating to the timing of the application for judicial review, and heard argument on that issue only. The judgment itself states that the issue of timing was raised by counsel for the PSNI, who argued that the application was time-barred under section 7(5) of the Human Rights Act, since there was no finding that delay in breach of article 2 had occurred within the period of 12 months immediately prior to the commencement of the proceedings, and there was no reason why the court should exercise its discretion to extend the period for bringing proceedings under section 7(5)(b).

7

Judgment was handed down on 22 September 2015: [2015] NICA 66. That judgment was subsequently withdrawn and a revised judgment, also dated 22 September 2015, was issued on 12 May 2017. The resultant orders, also dated 22 September 2015, were made on 10 June 2017. The judgment and orders are discussed below. The immediate result of the orders was a stay of proceedings.

8

A further inquest into Pearse Jordan's death commenced on 22 February 2016 and a verdict was delivered on 9 November 2016. That verdict was challenged in judicial review proceedings brought by Pearse Jordan's mother, the present appellant, but without success: In re Jordan's application for Judicial Review [2018] NICA 34. She also took over the conduct of the present proceedings from her husband as his health had deteriorated so as to prevent him from taking part.

9

On 23 October 2017, following a hearing which it had convened of its own motion in the exercise of its case management functions, the Court of Appeal lifted the stay on the present proceedings. It had been in place for a period of two years and one month.

10

Both the Chief Constable's appeal and the claimant's cross-appeal were heard during 2018. The cross-appeal was dismissed: [2018] NICA 23. The appeal has not yet been decided.

11

The delays in the investigation into Pearse Jordan's death, and the repeated litigation which has characterised that process, are a common feature of what have come to be known as “legacy” cases: that is to say, cases concerning deaths occurring in Northern Ireland during the “Troubles”. In his recent judgment In re Hughes' application for Judicial Review [2018] NIQB 30, Sir Paul Girvan found that there was systemic delay in these cases, arising from a lack of resources to fund inquests of the length, complexity and contentiousness involved. There were at that point 54 inquests pending in relation to 94 deaths. Only one inquest was heard during 2018. In an effort to address this problem, reforms have been proposed by the Lord Chief Justice of Northern Ireland which, it is hoped, will enable all the outstanding cases to be heard within five years. The proposed reforms have not however been implemented, as the necessary funding has not been provided.

The judgment and order of the Court of Appeal
12

In its judgment the court considered how section 7(5) of the Human Rights Act applies to complaints of delay in relation to the holding of inquests. Section 7(1)(a) provides that a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) (ie has acted in a way which is incompatible with a Convention right) may bring proceedings against the authority under the Act. Section 7(5) provides:

“(5) Proceedings under subsection (l)(a) must be brought before the end of —

(a) the period of one year beginning with the date on which the act complained of took place; or

(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances …”

13

The court observed that it was apparent from the history of this case and other legacy cases that delay as a result of failures to disclose evidence had been a recurring problem. Where there had been a series of failures of disclosure, was it necessary, the court asked, for the applicant to issue proceedings within one year of the end of a particular failure to disclose, or was the applicant entitled to include periods of delay resulting from earlier failures where proceedings were issued within 12 months of the latest failure? Might the answer to that question depend upon whether there was a finding that all of the failures of disclosure were part of a policy or practice to cause delay?

14

The court did not answer these questions, but it observed that in the light of these issues, and the very long delays occurring in legacy cases, those who wished to avoid being captured by the primary limitation period under section 7(5)(a) might well feel obliged to issue proceedings separately in relation to each and every incident of delay. That might involve separate proceedings against different public authorities allegedly contributing to periods of delay which might or might not overlap. If each case had to be pursued within one year of the end of each particular element of delay, that would introduce a proliferation of litigation in respect of which periods of delay justified an award of damages against which public authorities. Practicality and good case management pointed towards ensuring that all of those claims against each public authority should be heard at the same time. In the present case a fresh inquest had been ordered (ie the inquest which began on 22 February 2016 and had already been completed when the substituted judgment was delivered). If it did not take place within a reasonable time, that would constitute a fresh breach of the Convention for which a remedy, including damages, might be available. It was when the inquest was completed that it would be possible to examine all the circumstances surrounding any claim for delay, and the court would then be in a position to determine whether adequate redress required an award of damages...

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