Re an application by Officer O for Judicial Review
| Jurisdiction | Northern Ireland |
| Judge | Gillen J |
| Judgment Date | 14 May 2008 |
| Neutral Citation | [2008] NIQB 52 |
| Court | Queen's Bench Division (Northern Ireland) |
| Year | 2008 |
| Date | 14 May 2008 |
1
Neutral Citation No. [2008] NIQB 52 Ref:
GIL7152
Judgment: approved by the Court for handing down Delivered:
14/5/08
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
RE AN APPLICATION BY OFFICER O FOR JUDICIAL REVIEW
________
GILLEN J
Application
[1] The applicant in this case is a police officer who is to be known in these
proceedings as Officer O (“the applicant”). The Respondent is the Police
Ombudsman for Northern Ireland (“the Respondent”/”PO”). The Office of
the Police Ombudsman for Northern Ireland derives powers from Part VII of
the Police (Northern Ireland) Act 1998 (“the 1998 Act”). That part of the 1998
Act confers certain powers and duties upon the Police Ombudsman with
reference to the investigation of complaints against members of the police
force.
[2] In this matter the applicant challenges the decision of the Respondent
to require the Chief Constable pursuant to Section 66 of the Police Act
(Northern Ireland) 2000 (“the 2000 Act”) to provide all medical and
occupational health records relating to the applicant’s medical condition on
the grounds that it breaches the applicant’s rights under Article 8 of the
European Convention of Human Rights and Fundamental Freedoms (“the
Convention “) Secondly the applicant asserts that the decision is flawed on
the grounds of procedural impropriety. Thirdly, the applicant asserts that
Section 66(1) of the 2000 Act is incompatible with the requirements of Article
8 of the Convention and the Human Rights Act 1998.
[3] The Secretary of State appears in this matter as an intervener in light of
the applicant’s assertion that s.66 of the 2000 Act is incompatible with Article
8 of the Convention.
2
Background
[4] In 2006 the applicant shot dead a member of the public named Stephen
Colwell using his police service personal protection weapon whilst he was on
duty as a police officer at Ballynahinch (“the incident”).
[5] The Chief Constable has referred the matter to the Respondent as
required by Section 55(2) of the 1998 Act and a formal investigation was
commenced by the Respondent.
[6] In accordance with Section 56(1) of the 1998 Act, Paul Holmes, Senior
Investigating Officer employed by the Respondent, was appointed to conduct
this investigation. In the course of the investigation Mr Holmes has utilised
the power afforded by Section 66(1) of the 2000 Act to require information
from the Chief Constable for the purposes of pursuit of his investigation. The
information sought and obtained from the Chief Constable included details
relating to the training, conduct, complaints and personnel history of the
applicant. The applicant was interviewed twice as part of the investigation
namely on 28 April 2006 and 24 August 2006. Thereafter the Respondent
sought from the Occupational Health and Welfare Branch of the Police
Service (“OHW”) access to records held by them in relation to the applicant.
Mr Holmes asserts that he sought information in respect of the applicant’s
history relating to health, conduct and complaints in view of the information
he received in the investigation and the applicant’s assertion that his ability to
recollect the events of the incident was hampered by post incident treatment
from OHW. By letter dated 21 September 2006 the respondent asked for the
said records from Deputy Chief Constable Leighton of the Police Service. A
letter dated 28 September 2006 to the Chief Constable indicated that he was
minded to release the records but was giving the applicant an opportunity to
express his views on the proposed release of the documents to the
Respondent.
[7] The applicant asserts that at this stage, no request had been made to
him for his consent to obtain this information about him nor had any notice
been given to him of the request. The request to the Deputy Chief Constable
included the exact nature of any counselling or therapy received by the
applicant since the date of the incident as well as the nature of any
complaints, diagnoses or assessments recorded in relation to him prior to the
incident. The applicant asserts that this information was provided by the
applicant in confidence to OHW and inevitably touched upon questions
central to his private life.
[8] On 28 September 2006 the Deputy Chief Constable responded to the
Respondent’s letter indicating that he was minded to release the requested
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