THE JORDAN JUDGMENT IN THE COURT OF APPEAL: THE LCJ STEPS INTO THE DEBATE ON THE PAST

by Guest Post on November 21, 2014

Rights NI is delighted to welcome this guest post from Christopher Stanley of KRW  LAW LLP

The Northern Ireland Court of Appeal has now handed down judgment in Hugh Jordan’s application to quash the verdict of the Coroner in the inquest into the killings of son Patrick Pearse Jordan on 25 November 1992 by an officer of the RUC. The full judgment is available here Jordan (1).

The importance of this judgment within the context of the debate on Dealing/Contending/Policing (and Paying for) the Past in the North of Ireland has already been subject to comment, see for example the statement of Relatives for Justice at RFJ. The Court of Appeal upheld the judgment of Mr Justice Stephens quashing the verdict of the Coroner. I have previously commented on the Stephens J judgment here Jordan (2). The appeal against the judgment had been bought by the Coroner and the Chief Constable of the PSNI. It is the closing remarks of the Lord Chief Justice Sir Declan Morgan that are particularly interesting as he steps into the debate on The Past.

In his concluding remarks the LCJ offers the following critique of the coronial process in the North of Ireland in investigating the Conflict related Legacy cases. First, he notes the analysis of his colleague Lord Justice Girvan in Jordan v Senior Coroner [2009] NICA 64:

“The current state of coronial law is extremely unsatisfactory.  It is developing by means of piecemeal incremental case law.  It is marked by an absence of clearly drafted and easily enforceable procedural rules.  Its complexity, confusion and inadequacies make the function of a coroner extremely difficult. He is called on to apply case law which does not always speak with one voice or consistently.  One must sympathise with any coroner called on to deal with a contentious inquest of this nature which has become by its nature and background extremely adversarial.”

Second, on the basis of the lamentable state of affairs of the Conflict related Legacy inquests, the LCJ comments:

“This court returned to that theme in Re C and others [2012] NICA 47 in October 2012. Despite the unsatisfactory nature of the present coronial system no material step has been taken to address this lamentable state of affairs and there is no realistic prospect of the present Assembly legislating to resolve this situation before the expiry of its present mandate in May 2016. In those circumstances it may well be close to 2020 before appropriate legislation which reflects the impact of the European Convention on Human Rights is put in place.

The absence of a satisfactory coronial system adversely affects the work of the Coroner’s Service particularly in the conduct of inquests. The theory is that the Coroner should conduct an investigation designed to establish the truth, identify wrongdoing and learn lessons for the future. It is, however, impossible to effect such an inquisitorial role in the absence of coroners’ officers to assist with the investigation, powers to take statements and secure documents and appropriate procedural rules to govern public hearings.

The impact of these deficiencies has been most pronounced in the conduct of legacy inquests. This is the group of historical inquests in which there are allegations of state involvement in the deaths and issues including murder of suspected terrorists, collusion, planning and control, individual error and cover-up. There are at present 51 such cases involving 78 deaths. The oldest of the cases relates to a death in February 1971 and the most recent to a death in July 2005. This number may increase as a result of future referrals by the Attorney General.

The absence of adequate powers for Coroners and procedures suitable for investigation and hearings has resulted in the inquests becoming an adversarial battleground instead of a Coroner led inquiry. The adversarial nature of the proceedings is evidenced by the fact that in the case of the death of Pearse Jordan alone there have been 24 judicial reviews, 14 appeals to the Court of Appeal, 2 hearings in the House of Lords and one hearing before the European Court of Human Rights. The issues in dispute have included questions of scope, relevance and disclosure of materials. If the existing legacy inquests are to be brought to a conclusion under the present system someone could easily be hearing some of these cases in 2040.”

The LCJ is clear that each Conflict related Legacy Inquest must satisfy the investigatory procedural discharge obligation that arises when there has been a breach/violation of Article 2 of the ECHR. He cites at length paragraph 20 of his judgment the relevant extracts from Jordan v UK (2003) 37 EHRR 2 paragraphs 106 – 109 which describes how this obligation should be discharged. Following this analysis, the LCJ offers for consideration thoughts on a way through this impasse prefacing his comments by remarking that failure to make progress will continue to leave the UK government in breach of the obligations under the ECHR.  He notes that the on-going Historical Institutional Abuse Inquiry (HIA) could be developed as model: the Conflict related Legacy Inquests would be placed within a time bound HIA Inquiry chaired by a senior. This model would need powers to investigate including powers to compel documents and witnesses. PII would need to be approached through redaction and gisting so that ‘families would have a proper opportunity to comment on the evidence and be involved to the appropriate extent.’ The LCJ notes that Common themes might be identified.

At paragraph 125 the LCJ concludes thus: “Although we recognise that it is for the executive and the legislature to find a solution to this issue it is abundantly clear that the present arrangements are not working. Unless a solution is achieved we will continue to incur considerable public expense in legal challenges and claims for compensation such as those arising in this case and the subject of further hearing. We hope that these observations are of assistance to those charged with finding a solution.”

The thoughts of the senior law officer in this jurisdiction bear serious consideration and I venture the following commentary:

  • It is important that the LCJ has again described the lamentable state of the Conflict related Legacy inquests in this jurisdiction.
  • It is important that he has reminded the UK government that it continues to be in breach of its obligations under the ECHR and this underscores the recent comments made in Belfast by the European Human Rights Commissioner.
  • It is important that the LCJ returns to the ECtHR judgement in Jordan in describing the Article 2 compliance mechanism and how this can be discharged through a Middleton type inquest.
  • The LCJ proposed a statutory based inquiry mechanism of investigation which would deal with all the Conflict related Legacy Inquests. Such a mechanism, he considers, could be based on the on-going HIA Inquiry model.
  • The identification of Common themes has already been alluded to in remarks by the present Chief Coroner John Leckey; there is a mass of compelling evidence regarding forensic, ballistic and procedural/prosecutorial linkages in many Conflict related killings (see for example the inquest into the murder of Roseann Mallon and linkages to the Cappagh killings and many others) and these need to be dealt with holistically.
  • It is clear that the Attorney General for Northern Ireland in his public pronouncements on the Legacy of the Conflict in speeches as recently as 6 November 2014 is steadfastly opposed to ordering fresh inquests under section 14 of the Coroner’s Act (Northern Ireland) 1959 and that the LCJ proposal would relieve him of this decision.
  • The HIA is one of several models available but not addressed by the LCJ. These include the Legacy Commission proposed by the Consultative Group on the Past (Eames/Bradley) and the recent Proposed Agreement of the Panel of Parties (Haass/O’Sullivan) of a Historical Inquires Unit. In addition reference can be made to the remarks of Silber J in the on-going litigation in Ali-Zaki Mousa (No 2) v SS for Defence on the model to investigate the deaths and injuries sustained by Iraqi civilians during the occupation of Southern Iraq during and after 2003. See: Ali-Zaki Mousa (No 2).
  • It is clear that the Package of Measures offered by the UK government to the Committee of Ministers following the McKerr group of judgments of the ECtHR has effectively collapsed and this includes the coronial process and the LCJ accepts this. The Chief Coroner John Leckey has written to both the Minister of Justice and Secretary of State for Northern Ireland blaming the inadequacy of resources on the failure of the Legacy inquest process. The Minister of State has in turn in his evidence to the Committee of Justice of the Northern Ireland Assembly on 01, October 2014, suggested that resourcing the matter of Policing the Past must come from Whitehall and not through the devolved policing and criminal justice budget provided to Stormont by the Treasury. I have recently commented on this at Resources.
  • The disclosure of sensitive material and the compellability of witnesses have plagued the Legacy inquests in this jurisdiction with the UK government and its agencies (the PSNI, the MOD, MI5) blocking disclosure and protecting witnesses on a constant basis in order to conceal its role as the third combatant in the Conflict and mired in allegations of collusion with Loyalist paramilitary organisations.
  • The HIA model is worth considering but the out-working of it as Article 2 compliant mechanism to investigate the Conflict related Legacy Inquests (and all Conflict related deaths and injuries currently pending the PSNI following the demise of the HET and out-with OPONI?) needs to be fully explored.
  • In line with RFJ what I fear is that to subsume the Legacy Inquests into a HIA model will encounter the same problems that the present coronial system faces from the forces of the State in terms of prevarication, obfuscation, delaying tactics and the destruction of evidence.
  • Most importantly is the issue of victim participation as required under the ECtHR Article 2 jurisprudence. Any model which is adopted must provide for victim participation and legal representation at the expense of the State in order to protect the interests of victims and to ventilate their needs before any form of tribunal of inquiry. This will include legal representation and participation status of witnesses. I note here the litigation being pursued by a witness to the Kingsmill Massacre who is requesting legal representation and participant status at the Kingsmill Massacre Inquest. Similarly litigation is being pursued on the same issue in relation to witnesses before the HIA regarding the Kincora Boys’ Home.
  • The HIA is time bound and only has limited powers of compellability of evidence within this jurisdiction. This is why there is currently a challenge to its powers in relation to the allegations regarding MI5 and RUC Special Branch and the Kincora Boys’ Club. The HIA cannot investigate matters of National Security as these are not devolved. In addition, the HIA was legislated for from Stormont and is therefore funded from Stormont.
  • If a statutory inquiry model into all Conflict related deaths and inquiries, fully resourced including legal representation of victims and witnesses to ensure participation and with robust powers of compellability backed up by rigorous independence structures in relation to intelligence and legislated for from Westminster then this might be a way forward.
  • Such a model would need the endorsement of London and Dublin (re: the Dublin/Monaghan Bombings and other cross-border murders). It would need to address individual, familial and thematic concerns in laying out a quest for truth, justice and accountability. It would need powers to provide narrative accounts of is findings and to make recommendation for prosecutions or to engage within the thorny matrix of suite impunity in exchange for truth. This is what I mean by the out-workings of any model including that proposed by the LCJ.
  • The HIA is in operation and some of its limitations have been identified; the resource issue needs to be confronted; the issue of suite immunity and amnesty similarly needs tackling; the avoidance of the current blocks raised by the British government and its agencies similarly need tackling and exposing as the Chief Coroner has begun to recognise and as noted by the LCJ.

In light of the comments of the LCJ there may now be a glimmer of a new emphasis that the present state of Dealing/Contending/Policing the Legacy of the Conflict of the Past in the North Ireland cannot be tolerated any longer by the victims, survivors and families, like Hugh Jordan, waiting and waiting and waiting for truth, justice and accountability.

 

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