In the matter of an application by David Wright for Judicial Review of a decision of the Secretary of State for Northern Ireland

JurisdictionNorthern Ireland
JudgeDeeny J
Judgment Date21 December 2006
Neutral Citation[2006] NIQB 90
CourtQueen's Bench Division (Northern Ireland)
Date2006
Year2006
1
Neutral Citation no. [2006] NIQB 90
Ref:
DEEF5579
Judgment: approved by the Court for handing down
Delivered:
21/12/2006
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION
________
IN THE MATTER OF AN APPLICATION BY DAVID WRIGHT FOR
JUDICIAL REVIEW OF A DECISION OF THE SECRETARY OF STATE
FOR NORTHERN IRELAND
________
DEENY J.
[1] The applicant herein brings this application to challenge the
compatibility of the Inquiries Act 2005 with Article 2 of the European
Convention on Human Rights and to challenge the decision of the Secretary
of State for Northern Ireland on 23 November 2005 converting an inquiry into
the death of Billy Wright under the Prison Act (Northern Ireland) 1953 into an
inquiry under the Inquiries Act 2005. The applicant is the father of the said
Billy Wright who was shot dead on 27 December 1997 while a serving
prisoner in H. M. Prison The Maze.
[2] On 21 October 1998 three members of the Irish National Liberation
Army, who were also serving prisoners at HMP The Maze, were convicted of
the murder of Billy Wright. On 1 August 2001 the Governments of the United
Kingdom and the Republic Ireland reached an agreement at Weston Park in
England. Among other matters both Governments agreed to appoint a judge
of international standing to undertake “a thorough investigation of
allegations of collusion (by the security forces) in the cases of the murders of
Chief Superintendent Harry Breen and Superintendent Bob Buchanan, Pat
Finucane, Lord Justice and Lady Gibson, Robert Hamill, Rosemary Nelson
and Billy Wright”. (In the event the family of Lord Justice and Lady Gibson
did not wish the matter to be pursued in regard to them.) Subsequently the
Honourable Peter Cory, a retired judge of the Canadian Supreme Court,
accepted this task and delivered reports on the six remaining cases on 7
October 2003. Her Majesty’s Government published these reports on 1 April
2004 with some redaction of passages relating in particular to the names of
those involved. On that occasion the then Secretary of State announced that
2
the inquiry into the death of Billy Wright would be established under the
Prison Act (NI) 1953. On 8 July 2004 the Secretary of State made a statement
on the governing principles for the inquiry and on 16 November 2004 he
announced the names of the Chairman and panel members of the inquiry and
what the terms of reference would be. The inquiry panel consists of Lord
MacLean, a Senator of the College of Justice in Scotland, 1990-2005, sitting
with Professor Andrew Coyle and the Right Reverend John Oliver. At a
preliminary hearing held in Belfast on 22 June 2005 Lord MacLean announced
that he proposed to ask the Secretary of State to convert the inquiry to an
inquiry under the Inquiries Act 2005 as the “list of issues requires
examination of matters that go beyond the provisions of the Prison Act.”
Such a request was formally made on 13 July 2005. The Secretary of State
issued his decision to convert the Billy Wright inquiry to an inquiry under the
2005 Act on 23 November 2005. It is that decision and its surrounding
circumstances which the applicant seeks to challenge, alongside his challenge
to the Inquiries Act 2005 itself.
[3] Before turning to the two principal areas of contention I touch on one
preliminary matter.
[4] Section 38 of the Inquiries Act 2005 imposes a time limit for applying
for judicial review of a decision made by the Minister in relation to an
enquiry. Such an application must be brought within 14 days after the day on
which the applicant became aware of the decision, "unless that time limit is
extended by the court". The applicant herein was approximately five weeks
outside that time limit. It would appear that this point on delay was taken
before Weatherup J. I am satisfied on seeing a transcript of his remarks that
he intended to and did extend the time for bringing the application in the
light of all the circumstances, including an application for legal aid by the
applicant. I am inclined to the view that, whatever might sometimes be the
practice in judicial review applications made under Order 53 generally, that
ends the matter and I need not deal with it at this substantive hearing. It was
not pursued by the respondent at that hearing although it had been included
in the skeleton argument. For completeness, however, I would take the same
view as Weatherup J on that issue. Indeed reference to the digital audio
recording of the Court of Appeal reveals that this view was upheld by the
court when asked to consider it at the same time as an application for
additional grounds of leave. No application was made to declare the fourteen
day time limit in Section 38 as incompatible with Article 6 of the European
Convention on Human Rights so that I need not arrive at any considered view
upon that point.
[5] It is helpful to begin by referring to Article 2 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms
which deals with the Right to Life. It provides that:
3
“1. Everyone’s right to life shall be protected by law.
No one shall be deprived of his life intentionally save
in the execution of a sentence of a court following his
conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded as
inflicted in contravention of this Article when it
results from the use of force which is no more than
absolutely necessary:
a. in defence of any person from unlawful
violence;
b. in order to effect a lawful arrest or to prevent
the escape of a person lawfully detained;
c. in action lawfully taken for the purpose of
quailing a riot or insurrection.”
[6] One notes from the Article that this is not an unqualified right to life. It
does not prevent those charged with the custody of prisoners from using
force which is no more than absolutely necessary to prevent their escape, even
if it proves fatal. It does not expressly confer a right on any person to have
deaths, whether in the circumstances outlined in Article 2 or otherwise,
investigated but given the circumstances outlined in which life can be taken it
is scarcely surprising that the European Court of Human Rights has
concluded that such a right exists. Thus in McCann and Others v The United
Kingdom [1996] 21 E.H.R.R. 97, the European Court held that a general legal
prohibition of killing by the agents of the State would be ineffective, in
practice, if there existed no procedure for reviewing the lawfulness of the use
of lethal force by State authorities. The obligation to protect the right to life
under this provision, read in conjunction with the State’s general duty under
Article 1 of the Convention to “secure to everyone within their jurisdiction the
rights and freedoms defined in [the] Convention” requires by implication that
there should be some form of effective official investigation when individuals
have been killed as a result of the use of force by, inter alios, agents of the
State. It was not necessary to decide the form of investigation in the McCann
case as a lengthy public inquest had in fact taken place in Gibraltar following
the deaths of three persons at the hands of members of the Special Air
Services Regiment.
[7] Mr Seamus Treacy QC, who appeared for the applicant with Mr Alan
Kane, relied on the decision of the House of Lords in R (on the application of
Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2003] 4
All ER 1264. That was a case where a prisoner serving a sentence in a young
offenders institution was murdered by his cell-mate who had already

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3 cases
  • Finucane’s (Geraldine) Application
    • United Kingdom
    • Queen's Bench Division (Northern Ireland)
    • 26 Junio 2015
    ...that there was any promise that such a public inquiry would be of the kind recommended by Judge Peter Cory. I note that in Re David Wright[2006] NIQB 90 the same factual conclusion was reached by Deeny J who said ‘The second contention under the ground was that there was legitimate expectat......
  • Finucane (Geraldine) v The Secretary of State for Northern Ireland
    • United Kingdom
    • Court of Appeal (Northern Ireland)
    • 21 Febrero 2017
    ...this very substantial remedy existing at law and available to the applicant. [9] Stephens J found (citing in support In Re Wright [2006] NIQB 90) that the Government was not obliged to establish a public inquiry of the kind recommended by Judge Peter Cory; that had never been promised. But ......
  • Finucane v Secretary of State for Northern Ireland
    • United Kingdom
    • Court of Appeal (Northern Ireland)
    • 21 Febrero 2017
    ...overlooks this very substantial remedy existing at law and available to the applicant. 9. Stephens J found (citing in support In re Wright[2006] NIQB 90) that the Government was not obliged to establish a public inquiry of the kind recommended by Judge Peter Cory; that had never been promis......

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