Re Jordan’s application; Re an application by serving and retired members of the RUC and PSNI [Court of Appeal of Northern Ireland]
| Jurisdiction | Northern Ireland |
| Judge | Morgan LCJ,Girvan LJ,Higgins LJ |
| Judgment Date | 17 October 2012 |
| Court | Court of Appeal (Northern Ireland) |
| Docket Number | MOR8620, GIR8596 |
| Date | 17 October 2012 |
Neutral Citation: [2012] NICA 47
Court of Appeal of Northern Ireland,
Judges:Morgan LCJ, Girvan LJ, Higgins LJ.
MOR8620, GIR8596
Appearances:Ms Quinlivan QC and Ms Doherty for Mr Jordan, Mr Scoffield QC and Mr O'Hare for the relevant officers, Mr Montague QC and Dr McGleenan QC for the Chief Constable and Mr Simpson QC and Mr Doran for the coroner.
Issues: Whether exceptional circumstances existed so as to justify hearing an appeal against a coroner's procedural ruling during an inquest; whether the level of risk required anonymity to be granted to police officer witnesses pursuant to the state's Art 2 ECHR obligations.
Facts: Mr Jordan had been shot dead by a police officer in 1992. The preparations for his inquest hearing had already provoked more than 20 judicial review applications, several visits to the Court of Appeal, two appeals to the House of Lords and one application to the ECHR.
The inquest had commenced and the jury was now to determine, among other matters, the circumstances of how the fatal shot was fired by the relevant police officer, the planning and control of the police operation regarding the use of lethal force and the extent to which the police debriefing may have impacted upon the truth about the incident emerging.
A number of serving and retired police officers were to give evidence at the inquest and they sought anonymity and screening to protect them against a perceived risk to their lives if they were identified at the inquest as having been involved in the shooting.
In a series of rulings the coroner had the determined that, where giving evidence would lead to a strong possibility of attack, this placed an obligation of the state under Art 2 ECHR to take positive action to protect the individual's life. He granted anonymity and screening to number of police witnesses pursuant to a protocol which had been accepted by all of those participating in the inquest. Anonymity was also given to two officers for medical reasons where the coroner concluded that the common law test for the provision of anonymity and screening was met.
The deceased's father's judicial review application challenging the coroner's rulings had been dismissed. He appealed the first instance judge's decision and submitted that there was a high threshold for the real and immediate risk required to engage Art 2 ECHR which had not been met. Further, he submitted that the grant of anonymity and screening on common law grounds was contrary to the presumption of open justice and in breach of Art 10 ECHR. Additionally, he contended that the process which the coroner had devised, and to which he had assented, for determination of the issues of anonymity and screening was unlawful as it allowed the decision maker to see material not made available to the appellant.
A number of the serving and retired police officers who were not successful in their applications for anonymity had also sought judicial review of the coroner's decision. Those applications had succeeded, resulting either in an order granting anonymity and screening or the case being remitted back to the coroner for determination. Those officers then refused anonymity and screening by the coroner appealed.
Morgan LCJ:
1. These two appeals arise out of rulings by the coroner on procedural issues in relation to an inquest into the death of Patrick Pearse Jordan who was shot dead by a police officer at Falls Road Belfast on 25 November 1992. The areas which the jury will be asked to address include the circumstances in which the fatal shot was fired by the relevant police officer, Sergeant A, the manner in which the police operation was planned and controlled so as to minimise the risk of the use of lethal force, the extent to which the arrangements for debriefing may have prevented individual officers from providing their independent accounts of what occurred and whether that prevented the truth about the incident emerging.
2. The coroner intends to call a number of serving and retired police officers. Those officers sought anonymity and screening to protect them against the risk to their lives if they were identified at the inquest as persons involved in the death of Mr Jordan. In a series of rulings commencing in June 2012 the coroner decided that in some cases the degree of risk was sufficient to engage the threshold established by Art 2 of the ECHR requiring the State to consider positive action to protect the individual. In those cases he ordered anonymity and screening of the witnesses. He also found that in those cases the common law fairness test for the provision of protective measures because of a risk to life was met and on that ground also justified the making of the orders. He also made similar orders in relation to two police officers in respect of whom the risk did not reach the Art 2 threshold but for medical reasons the coroner concluded that the common law test for the provision of anonymity and screening was met. The deceased's father, Hugh Jordan, issued judicial review proceedings to challenge those rulings on 11 July 2012 and that application was dismissed by Deeny J on 17 September 2012.
3. A number of the serving and retired police officers who were not successful in their applications also sought judicial review of the coroner's decision. Those applications succeeded before Deeny J and he made Orders on 18 September 2012 granting anonymity and screening in XX cases and remitting X cases for determination by the coroner in accordance with the law as set out in the judgment. The coroner has now dealt with those cases. The jury for the inquest was sworn on 24 and 25 September and the inquest is now proceeding.
4. The coroner granted anonymity and screening to Officers AA, AB, B, E, F, M and Q. The next of kin opposed all of these with the exception of anonymity for AA. This was an issue which had been the subject of considerable debate at preliminary hearings before the coroner and a protocol which was accepted by all of those participating in the inquest was circulated initially in June 2009. The relevant procedure is:-
(i) A risk assessment in relation to any applicant for anonymity or screening is to be provided by the Security Service;
(ii) A written statement of the grounds of the application is to be provided by the applicant;
(iii) A redacted copy of the written statement is to be prepared by the applicant for transmission to other parties to the inquest;
(iv) Where the coroner concludes that any redaction is unnecessary he can require a revised copy to be prepared after hearing representations from the applicant for anonymity;
(v) Where he is minded to grant the application in whole or in part the coroner is required to ensure that his provisional decision with reasons is made available to interested parties;
(vi) The interested party may make representations in writing and the coroner may confirm, review or amend his provisional decision which is then sent with reasons to each party;
(vii) Any party who disagrees with the decision may make oral representations after which the coroner will issue his reviewed decision with reasons;
(viii) If there are new grounds or grounds that could not reasonably have been advanced the Decision may be reviewed.
5. The coroner made his determinations of these applications taking into account the guidance given by the House of Lords in Re Officer LWLR[2007] 1 WLR 2135, [2007] Inquest LR 214. He indicated that in order to maintain public confidence he considered that the inquests should be as open and transparent as possible within the law. In the cases of B, E, F and M the threat level assessments indicated that should they give evidence openly the potential risk to them would increase from moderate (an attack is possible but unlikely) to substantial (an attack is a strong possibility). The coroner concluded that this was sufficient to engage the Art 2 threshold and that he should order anonymity and screening in order to avoid the risk to their lives. In each case he noted their subjective fears and the objective basis for those fears. He considered that it would be unfair at common law to require them in those circumstances to give evidence without the protection of anonymity and screening.
6. AA suffers from a chronic debilitating illness which originates in his experiences in the course of his work. The threat assessment indicated that his risk would rise from low (an attack is unlikely) to moderate. The coroner concluded that a moderate risk did not meet the threshold for Art 2 but concluded that in light of his illness it would not be fair to require him to give evidence without anonymity and screening. He reached the same conclusion on Art 2 in relation to Q for the same reason but ordered anonymity and screening on the basis of fairness. The applicant had submitted a general practitioner's report diagnosing acute anxiety requiring medication and counselling.
7. The appellants criticised the coroner's reasoning on a number of grounds. It was submitted that the coroner erred in concluding that the assessment by the Security Service that the giving of open evidence would have the potential to give rise to a substantial risk was insufficient to give rise to a real and immediate risk so as to engage Art 2 ECHR. In Re Officer L Lord Carswell at para 20 described this criterion as having a high threshold and as one that should not be readily satisfied.
8. These appellants further submitted that the decision to grant anonymity and screening on common law grounds was contrary to the presumption of open justice which was supported by cases such as AG v Leveller MagazineELR[1979] AC 440. This inquest was the method by which the State had to account for the action of its police...
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