The issues considered
These proceedings for judicial review arose out of the death of the appellant’s son, Pearse Jordan, who was shot and killed in Belfast by a member of the Royal Ulster Constabulary on 25 November 1992.
The lengthy procedural history of the application is dealt with in detail in Lord Reed’s judgment dated 6 March 2019[1]. In summary, the present proceedings began in 2013 when Pearse Jordan’s father Hugh sought declarations that the Coroner and the Police Service of Northern Ireland (“PSNI”) had been responsible for a delay in the commencement of the inquest into his son’s death from 4 May 2001 until 24 September 2012. This, he argued, was a violation of article 2 ECHR and section 8 Human Rights Act 1998 (“HRA”). This claim was upheld and damages of £7,500 were awarded: [2014] NIQB 71.
The PSNI appealed and Hugh Jordan cross-appealed against the dismissal of his claim against the Coroner. Judgment and resultant orders were issued in May and June 2015: [2015] NICA 66. These placed a stay on proceedings until 2018 when the cross-appeal was dismissed [2018] NICA 23. The PSNI’s appeal has not yet been decided.
By ordering the 2015 stay, the Court of Appeal in Northern Ireland (“NICA”) effectively decided that a claim for damages under section 8 of the HRA for a breach of article 2 rights should not be brought until the conclusion of an inquest or, if already brought should be stayed until after that date. The decision was interpreted to be an attempt by the court to provide general guidance in these types of cases. The appeal to the UKSC was brought to challenge this guidance.
Illness prevented Hugh Jordan continuing proceedings before the UKSC after the appeal was lodged so he was replaced as the appellant by his wife.
The UKSC’s decision
The court unanimously allowed the appeal.
The rationale for this decision is in the court’s analysis of its case management powers. The court determined that the following three aspects of Convention rights must be remembered when considering these powers (particularly the power to order a stay):
- Convention rights must be “practical and effective” rather than merely theoretical, as per Airey v Ireland (1979) 2 EHRR 305, para 24.
- A stay will be unlawful if it breaches the guarantee in article 6(1) that legal claims must be determined within a reasonable time.
- If a stay interferes with another article 6 right, namely the right of access to a court, the stay must pursue a legitimate aim and must be proportionate in circumstances of a particular case (my emphasis added).
Having considered these aspects, the court held that the NICA did not adequately assess the proportionality of a stay. Further, it was uncertain that a stay would have been imposed had issues of proportionality been considered in light of all relevant facts, including Hugh Jordan’s declining health.
At para 34 of its judgment, the UKSC notes the two “legitimate” concerns of the NICA in relation to proportionality. Firstly, the court wanted to avoid a proliferation of litigation against public bodies allegedly responsible for any delays before an inquest had concluded. Secondly, the court should be aware of all relevant circumstances when determining claims. Lord Reed accepted the first concern was as yet unresolved in case law and therefore reasonable.
The appeal to the UKSC turned on the NICA’s second concern. The court held at para 39 that the NICA’s decision to order a stay “involved no assessment of proportionality or consideration of individual circumstances”. The UKSC considered a number of relevant factors at para 37, including that the claimant was likely to be a widow, parent or child of the deceased, for whom delay may cause additional distress, illustrating the importance of expeditious determination of claims brought by claimants who are elderly or infirm. The 2015 orders were therefore liable to render procedural rights under article 2 “ineffective” and “result in breaches of the reasonable time guarantee” under article 6. At para 38, the court took the opportunity to warn against any “automatic rule” (such as the NICA’s “general guidance”) that would apply regardless of individual circumstances. Such a blanket rule would by nature ignore the court’s obligation to weigh the relevant factors of each case.
In his judgment, Lord Reed acknowledged that after hearing this case, the NICA had heard the similar case of McCord (unreported, 18 January 2019) in which the court clarified points raised in Jordan. Further to these clarifications, Lord Reed felt it necessary to add only that it was essential to consider whether the general guidance should be applied on a case-by-case basis.
Significance
In allowing this appeal, the UKSC has strongly implied that claims for damages under section 8 HRA can run concurrently with an inquest.
Additionally, by defining the aspects to be considered when determining case management issues, such as granting a stay, the UKSC has provided guidance to lower courts for analogous cases. Proportionality is a key consideration. This guidance is of particular importance for the numerous ongoing/pending inquests in Northern Ireland in relation to the so called “legacy cases” arising out of the Troubles.
The judgment also highlights the possibility of a stay engaging article 6 ECHR rights as regards access to a court within a reasonable time. The ruling therefore has potentially far reaching implications for the UK government’s responsibilities under both articles 2 and 6.
Comment
The UKSC’s decision in Jordan will be significant for the government and how it deals with legacy cases. Inquests into Troubles related deaths are characterised in para 11 of the judgment as being subject to “systematic delay… arising from a lack of resources”. It therefore follows that in order to comply with section 8 HRA and procedural steps of article 2, the government will have to find the resources to adequately fund the inquest process.
Locating these resources at a time of huge cuts to public expenditure may well be politically difficult for the government but its commitments under the Convention and the HRA make provision of these resources a necessary obligation.
[1] https://www.supremecourt.uk/cases/docs/uksc-2017-0159-judgment.pdf
By JUSTICE student member Rob Hamill