Rights NI is delighted to welcome this guest post from Christopher Stanley. Christopher Stanley is Legal Officer with Rights Watch (UK) and can be reached at cstanley@rwuk.org.
“The inquest into the death of Pearse Jordan has been dogged by severe delay.”
(Lord Bingham Jordan v. Lord Chancellor [2007] NI 217 at [2])
The Jordan judgment was delivered by Mr Justice Stephens in the High Court in Belfast on 31 January 2014. It is reported as Jordan’s Applications (13/002996/1) (13/002223/1 (13/03/037869/1) [2014] NIQB 11. The judgment is available at Jordan. There were three joined judicial review applications in relation to the proceedings of a Northern Ireland coroner’s inquest into the killing of Patrick Pearse Jordan in 1992. The applications were bought by his father Hugh Jordan. As in many legal cases it is too easy to see that Patrick Pearse Jordan, the victim of an historical killing during the conflict in Northern Ireland, can disappear as the subject of his own inquest and that his bereaved family also can appear remote to the proceedings of the High Court. One of the problems is that with the course of time the images of all the victims of the conflict in Northern Ireland begin to fade and the circumstances of their lives become the current circumstances of how to deal with their deaths.
In this instance the significance of this important judgment on the proceedings of the coronial process in Northern Ireland was rapidly over shadowed by events. First, it came after the intense activity including the fall out after the failure of the Panel of Parties (Haass) to secure political support for its Proposed Agreement over Christmas (see: Haass) which included proposals on how to contend with the past in Northern Ireland. Second, this judgment became overshadowed by the political ramifications of the John Downey ‘On the Run’ (OTR) trial which could not be prosecuted because of processes and concurrences around the implementation of the Belfast/Good Friday Agreement 1998 and subsequent events and negotiations (see: Downey) . As ever in Northern Ireland when dealing/contending with the past and its consequences for the present, Jordan, Haass and the OTRs are all linked with legal and political implications.
Paragraph 32 of Mr Justice Stephens 360 paragraph judgment states: “On 25 November 1992 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. Sergeant A was a member of the RUC’s Headquarters Mobile Support Unit.” The deceased, Patrick Pearse Jordan, had been identified by the RUC as a member of the IRA. An initial inquest took place one year after his killing; this was stopped because of alleged inconclusive evidence despite contradictory RUC witness statements. In 2001 the European Court of Human Rights (ECtHR) held that the killing of Patrick Pearse Jordan has breached the UK government’s duty toward him in violating his right to life under Article 2 of the European Convention on Human Rights (ECHR). The ECtHR expected the UK government to have held an investigation into the killing of Patrick Pearse Jordan by state agents in compliance with the investigatory procedural obligations which arise when there has been a human rights violation of Article 2 (See Jordan1).
There was then a ten year hiatus between the judgment of the ECtHR in Jordan v UK and the start of a second inquest in 2012 through which period the Police Service of Northern Ireland (PSNI) resisted attempts to proceed with a second inquest on the basis of issues around the disclosure of material to the coroner and to the family of Patrick Pearse Jordan. This material included information linking those involved in killing Patrick Pearse Jordan with other conflict related killings including the shootings of Gervaise McKerr, Eugene Toman and Sean Burns 11 November 1982, the shooting of Michael Tighe and wounding of Martin McAauley 24 November 1982, and the killing of Seamus Grew and Roddy Carroll 12 December 1982 and the shooting of Neil McConville in 2003. The latter killing was referred to the Office of the Police Ombudsman for Northern Ireland (OPONI) who conducted her own investigation. The earlier killings were subject to investigation by two senior police officers from outside of Northern Ireland: John Stalker and then Colin Sampson. There was a further judicial review application before the House of Lords in 2007 (see Jordan2) concerning the unavailability of a verdict of unlawful killing in Northern Ireland but that an inquest jury may make relevant factual findings pertinent to the killing of Patrick Pearse Jordan.
The three judicial review applications made by Hugh Jordan in relation to the second inquest into the murder of his son Patrick Pearse Jordan concerned the following issues. First, non-disclosure of the Stalker/Sampson Reports, non-disclosure of material from the OPONI investigation into the killing of Neil McConville, the coroner’s decision to sit with a jury, aspects of the coroner’s directions to the jury and his failure to discharge a juror who considered the inquest unfair and the coroner’s response to the involvement of former RUC Special Branch officers in the disclosure process of the PSNI to the inquest. Second, this related to the OPONI material and the failure of the PSNI to provide this to the bereaved family in violation of the Article 2 procedural obligations. Third, this related to the involvement of the former RUC Special Branch Officers in the disclosure process from the PSNI to the coroner.
Mr Justice Stephens found that the Stalker/Sampson Reports were both potentially relevant (paragraph 159) and he quashed the decision of the coroner not to permit disclosure to the next of kin contrary to the requirements of Article 2 (the requirement of victim participation in the investigation into the Article 2 breach). He found similarly in relation to the OPONI Report in relation to the killing of Sean McConville (paragraph 222). Regarding the coroner’s decision to sit with a jury the judge made a declaration that in this inquest the coroner should not have sat with a jury (paragraph 246) on the basis that because this inquest involved security and terrorist issues there was a real risk that a jury would bring in perverse verdict (paragraph 246). Nevertheless he found that the domestic legislative scheme of the inquest process in Northern Ireland was not incompatible with Article 2 of the Convention (paragraph 256) but that the decision of the Coroner to proceed with a jury under a discretionary power was wrong. In relation not to dismiss a particular juror, again the judge quashed this decision in the circumstances. Again, he also quashed the decision of the coroner to accept the jury verdict that they could not agree on a verdict (paragraph 284). Regarding the role of former RUC Special Branch Officers in the disclosure process, the judge declined to make an order finding that the public interest immunity and Article 2 redactions were not independent given the safeguards in place (paragraph 339).
In conclusion, Mr Justice Stephens made an order quashing the verdict of the inquest. The consequences of this judgment for the families involved remains to be seen.
This judgment contributes to the controversy in Northern Ireland regarding the issue of delay in delivering truth, justice and accountability in the conflict related deaths and injuries. Patrick Pearse Jordan was killed in 1992. The Attorney-General for Northern Ireland has ordered fresh inquests into a number of conflict related killings including those 11 civilians killed in the Ballymuprhy Massacre of 1971. There is now a backlog of historical inquest pending in the coronial system in Northern Ireland. The inquest into the Kingsmill Massacre of 5 January 1976 is proceeding. Mr Justice Stephens addresses the issue of delay in the Patrick Pearse Jordan at length in the following terms relying in part on the judgment of Mr Justice Hart in an earlier judicial review application made by Hugh Jordan in 2009 (see: Jordan3)
- “There has been delay. The Article 2 requirement of promptness and reasonable expedition has not been met. The question is whether one or other or both of the notice parties is responsible.” (paragraph 341)
- Between paragraphs 122 – 125 the judge lays out the legal principles in relation to the requirement of promptness and reasonable expedition in the investigation/inquest system.
- Rule 3 of the Coroners (Practice and Procedure) (NI) Rules 1963 states that an inquest shall be held as soon as practicable after the coroner has been notified of the death (paragraph 122)
- A requirement of promptness and reasonable expedition is also implicit in an Article 2 compliant inquest. He notes the judgment of the ECtHR in Jordan v UK (see above) that a prompt response by the authorities in investigating a use of lethal force may be regarded as essential to public confidence in maintaining their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.
- In outlining at length the legal principles of promptness and reasonable expedition in the inquest process the judge noted that “If it is established on a prima facie basis than an inquest has not been conducted either promptly or with reasonable expedition then it for the state authorities to satisfy the court that there were obstacles or difficulties which prevented progress” (paragraph 125 (c)) and that a particular state authority should not itself create obstacles or difficulties to the progress of an investigation (paragraph 125 (g)).
- On considering whether a declaration should be made against a state authority in relation to delay in holding an inquest the judge specifically comments on resources “The fact that further litigation seeking to establish delay and the pursuit of individual awards of damages and costs may divert resources and limited personnel and expertise to handling public law challenges rather than organising inquest is another factor that may be taken in to account in the exercise of discretion.” (paragraph 125 (o) (v)).
Mr Justice Stephens concluded in relation to the delay in conducting an Article 2 compliant inquest into the killing of Patrick Pearse Jordan that it was the PSNI that was culpable for the delay in “creating obstacles and difficulties which have prevented progress in the inquest and have also not reacted appropriately to other obstacles and difficulties” (paragraph 349). The PSNI is a state authority responsible for much of the delay in contributing to the inquest into the killing of Patrick Pearce Jordan. It remains to be seen if further litigation can be bought against the Northern Ireland Assembly or the Secretary of State for Northern Ireland or other state authority as responsible for the PSNI in terms of an application for damages or against the PSNI itself. Any award of damages would further strain the resources of the relevant authority and the logic of circularity would, as Mr Justice Stephens noted, need to be placed in the juridical balance in any further litigation (paragraph 125 (v) “The strength of this factor might be influenced by whether the State authorities have established that resources applied at an earlier stage will not conserve resources overall and in the long term”
Aside from an application for damages a point can be made that with the Attorney-General for Northern Ireland ordering fresh inquests into conflict related deaths as far back as 1971 this is putting an increasing strain on the coronial process in Northern Ireland. Complicated cases such as that of Patrick Pearse Jordan, complicated and unsatisfactory coronial law and the Strasbourg jurisprudential demand that inquests are Article 2 compliant place increasing pressure on the coronial process in Northern Ireland.
The Haass Proposed Agreement made it explicit that inquests would remain a separate institution of investigation into the conflict related deaths. Therefore, the demand of promptness and reasonable expedition remains only to be defeated by continued patterns of delay in the process of coronial investigation. It is a question of both resources and compliance.
The PSNI must be resourced to investigate and cooperate with the coronial process into the conflict related legacy cases and the coronial process itself must be resourced so as to be able to conduct Article 2 compliant inquests. Therefore, within the devolved administration of criminal justice in Northern Ireland, delay due to resourcing would be a challenge to the Department of Justice. Following the judgment in the Patrick Pearse Jordan judicial review application, there might now have arisen a legitimate expectation that to fulfil domestic legislation and the Article 2 jurisprudence an application could now be made against the Department of Justice in failing to resource its responsibilities for dealing with the past in Northern Ireland. As the Department of Justice now wrestles with the fall out of the OTR issue it may have further complications when challenged with its failure to contribute to the coronial process relating to the conflict related deaths as a mechanism to deliver truth, justice and accountability to the bereaved of the conflict.
In the meantime both the Coroner and the Chief Constable have lodged appeals against this judgment so the litigation continues whilst the family wait for justice and closure.