In the matter of an application by Hugh Jordan for Judicial Review (Northern Ireland) - (06 Mar 2019)

Delay itself constitutes a breach of claimant’s Convention rights and gives rise to a right to bring proceedings under Human Rights Act

Human Rights

The central issue in present appeal is whether the Court of Appeal in Northern Ireland was entitled to order that, a claim for damages under Section 8 of the Human Rights Act 1998, for breach of the requirement under Article 2 of the European Convention on Human Rights that, an investigation into a death should begin promptly and proceed with reasonable expedition, should not be brought until an inquest has been concluded, or if already brought should be stayed until after that date.

The Appellant’s son, Pearse Jordan, was shot and killed by a member of the Royal Ulster Constabulary on 25 November 1992. In 1994, the Appellant’s husband, Hugh Jordan, made an application to the European Court of Human Rights, complaining that the failure to carry out a prompt and effective investigation into his son’s death was a violation of Article 2. An inquest commenced on 4 January 1995 but was adjourned shortly afterwards. On 4 May 2001, the European Court of Human Rights upheld Mr Jordan’s complaint and awarded him £10,000 in respect of non-pecuniary damage, together with costs and expenses.

A fresh inquest into Pearse Jordan’s death commenced on 24 September 2012. Hugh Jordan then brought proceedings for judicial review of the conduct of the inquest, which resulted in the verdict being quashed. A subsequent appeal against that decision was dismissed.

In 2013, Hugh Jordan brought the present proceedings for judicial review, in which he sought declarations that, the Coroner and the Police Service of Northern Ireland (“PSNI”) had been responsible for delay in the commencement of the inquest in violation of his rights under Article 2, together with awards of damages under section 8 of the Human Rights Act in respect of the delay from 4 May 2001 until 24 September 2012. Stephens J upheld the claim against the PSNI, finding that there had been a series of failures to disclose relevant information until compelled to do so, and also a delay in commencing a process of risk assessment relating to the anonymity of witnesses. Following a further hearing in that case and five other similar cases, he made a declaration that, the PSNI “delayed progress of the Pearse Jordan inquest in breach of Article 2 of the European Convention on Human Rights and contrary to Section 6 of Act 1998”, and awarded damages of £7,500[2.

The PSNI appealed against the declaration and damages award, and Hugh Jordan cross-appealed against the dismissal of his claim against the Coroner. On 22 September 2015, the Court of Appeal ordered that, the proceedings should be stayed until after the inquest had been completed. The stay was lifted on 23 October 2017. The present appeal was brought in order to challenge the general guidance given by the Court of Appeal. The Appellant sought to set aside “the judgment and order made by the Northern Ireland Court of Appeal whereby it decided that her claim for damages for breach of Article 2 ECHR by reason of delay could only be brought after the conclusion of the inquest into her son’s death”.

In considering the guidance given by the Court of Appeal in the present case, as clarified in the case of McCord, it must be borne in mind that, in cases of the present kind, it is the delay itself which constitutes a breach of the claimant’s Convention rights and gives rise to a right to bring proceedings under the Human Rights Act. The breach does not crystallise only after the inquest has been concluded: the claimant is entitled to bring proceedings as soon as the delay reaches the requisite threshold under article 2.

Claims arising from such delay are brought under Section 7(1)(a) of Act. That provision confers a statutory right on any person who claims that a public authority has acted in a way which is incompatible with a Convention right to bring proceedings against the authority, provided that he or she qualifies as a victim of the unlawful act and brings the proceedings within the time limits set by section 7(5). The Court then has the power to grant appropriate relief under Section 8. This may take the form of relief designed to end the delay, such as a mandatory order or declaration, or relief designed to compensate for the consequences of delay, in the form of an award of damages. In the present proceedings, both a declaration and damages were sought and awarded.

No court can take away the right conferred by Section 7(1)(a), whether in the exercise of case management powers or otherwise. Leaving aside the Court’s power to control vexatious litigants and abuses of process, which are not here in issue, there can be no question of anyone being prevented from bringing proceedings at a time of their choosing (subject to the limitation provision in Section 7(5)) in respect of a claimed violation of their Convention rights. Although, the court cannot prevent proceedings from being brought by persons who claim that their Convention rights have been violated, it can exercise powers of case management in relation to those proceedings. Such powers can include ordering a stay of proceedings in appropriate circumstances.

The guidance which the Court of Appeal was understood to have given in the present case was not consistent with the foregoing principles. On its face, it involved no assessment of proportionality or consideration of individual circumstances. It was also liable to render the Article 2 procedural right ineffective, and to result in breaches of the reasonable time guarantee.

Decision which is challenged was to stay the claim for damages until the inquest had been concluded. It has not been argued that, the effect of that decision was to render the claimant’s Article 2 right theoretical or illusory, or that there was a breach of the reasonable time requirement imposed by Article 6. It does not appear from the judgment of the Court of Appeal that, it carried out any assessment of the proportionality of the stay which it ordered. It is uncertain whether the Court would have ordered the stay if such an assessment had been conducted, particularly if Mr Jordan’s ill health had been drawn to its attention. Appeal allowed.

Tags : INVESTIGATION DELAY DAMAGES ENTITLEMENT