Dalton, Re Judicial Review

Factual and Procedural Background

This appeal concerns a judicial review application initiated on 26 June 2015 by the Appellant, a daughter of the deceased, regarding the decision of the Attorney General for Northern Ireland ("AGNI") not to order a fresh inquest into the deaths of three individuals who died as a result of a bomb explosion on 31 August 1988 in a flat located at 38 Kildrum Gardens, Londonderry. The deceased included the Appellant’s father and two others. The original inquest was held in December 1989, establishing death by bomb explosion. A police investigation was conducted shortly after the incident but no charges or convictions ensued.

The Appellant’s family raised concerns about the adequacy of the police investigation and alleged failures by the police to protect the local community, based on new information that emerged years later. These complaints were investigated by the Office of the Police Ombudsman ("PO"), which published a report in 2013 finding several substantive failings by the police, including failure to warn the community and properly investigate the deaths, but rejecting allegations that the police knowingly protected an informer.

Following protracted pre-proceedings correspondence between the Appellant’s solicitors and the AGNI, the AGNI decided on 2 October 2014 against ordering a fresh inquest. The Appellant challenged this decision via judicial review, limited to the question of whether the AGNI complied with Article 2 of the European Convention on Human Rights ("ECHR") regarding investigative obligations. The Judge dismissed the judicial review application in March 2017, concluding that the AGNI’s decision was lawful.

Legal Issues Presented

1. Whether the doctrine of revival of the Article 2 investigative obligation applies in this case, despite the absence of prospects for identifying or punishing the perpetrators of the bombing.
2. If revival applies, whether the Article 2 investigative obligation was in fact revived by the new information and complaints made in 2005 and subsequent investigations.
3. Whether the state's Article 2 obligations have been satisfied by the investigations to date, including the Police Ombudsman’s report.
4. If the obligations have not been met, whether the court should order the AGNI to exercise discretion to require the holding of a fresh inquest.

Arguments of the Parties

Appellant's Arguments

• Significant new information had emerged from the PO’s investigation, revealing police failures to protect the local population and to act on intelligence about the bomb.
• The police had key intelligence in advance but failed to neutralize the device or warn residents, leaving the community vulnerable.
• The PO’s investigation was hampered by non-cooperation of retired officers and missing documentation, necessitating a fresh inquest to achieve an effective official inquiry.
• The revived Article 2 investigative obligation requires the AGNI to order a fresh inquest, as established by the ECtHR judgment in Brecknell v United Kingdom.
• The Judge and AGNI erred by narrowly interpreting the revival doctrine, wrongly equating the case to mere negligence, misapplying precedent, and improperly considering ongoing civil proceedings.
• The court should grant the appeal and declare that the AGNI is obliged under Article 2 to order a fresh inquest.

Respondent's Arguments

• The AGNI was not legally obliged under Article 2 to order a fresh inquest; no final decision refusing a new inquest had been made.
• The PO’s report did not uncover genuinely new material requiring further investigation; the matters investigated were not novel, but of considerable vintage.
• The Brecknell test for revival of the Article 2 obligation is inapplicable here, as the case lacks prospects for identifying or punishing perpetrators.
• The AGNI’s decision was a reasonable exercise of discretion, considering the weight and context of the material and the advanced state of civil proceedings.
• The allegations against the police amount to negligence, not conduct warranting revival of the Article 2 obligation.
• The AGNI lawfully relied on the ECtHR’s Janowiec judgment regarding investigations aimed solely at establishing historical truth.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by addressing whether the doctrine of revival of the Article 2 investigative obligation applies in this case, despite the absence of prospects for identifying or punishing the perpetrators. While the Brecknell case emphasized revival linked to prosecution, the court found scope for a broader interpretation. It held that the obligation to investigate includes securing the effective implementation of domestic laws protecting the right to life, which encompasses State duties to safeguard life, not only to punish perpetrators.

The court considered analogous cases involving deaths without direct State causation but with alleged failures to protect life, such as those involving negligence or systemic failures, and concluded that procedural obligations under Article 2 can apply and be revived in such contexts.

The court then examined whether revival occurred, applying the Brecknell test that revival is triggered by a "plausible or credible allegation, piece of evidence or item of information." It found that the complaints made in 2005 by the deceased’s relative met this test, thus reviving the Article 2 obligation at that time. The Police Ombudsman’s report in 2013 was viewed as a response to the revived obligation, not its cause.

Next, the court assessed whether the State’s obligations under Article 2 have been met by the investigations to date, including the PO’s report. It found that despite substantiated complaints and conclusions of police failings, the investigation lacked sufficient clarity, detail, and explanation of how conclusions were reached. The report was hampered by non-cooperation from retired officers and missing documents, undermining public confidence and the effectiveness of the inquiry.

The court highlighted specific investigative deficiencies, such as the unexplained decision to place the relevant area 'out of bounds,' which was crucial from an Article 2 perspective. It concluded that the PO’s report did not satisfy the revived Article 2 investigative obligation.

Finally, the court considered whether it should order the AGNI to exercise discretion to require a fresh inquest. It noted that the AGNI’s discretion under section 14 of the Coroners (Northern Ireland) Act 1959 is significant and that the AGNI, as a public authority, must act in conformity with Article 2. However, the court refrained from issuing a mandamus, emphasizing that the AGNI should reconsider the matter in light of this judgment. The AGNI should evaluate whether further investigations can realistically satisfy Article 2, considering witness availability, document status, and the powers available to a coroner conducting a fresh inquest, which exceed those of the PO.

The court also acknowledged that other mechanisms, including ongoing civil proceedings, might contribute to satisfying Article 2 obligations. It recognized the State’s margin of appreciation in choosing how to fulfill these obligations and that the choice of means is not exclusively limited to ordering a fresh inquest.

Holding and Implications

The court found that the Judge below and the AGNI erred in their narrow interpretation of the Brecknell judgment and in their assessment of whether Article 2 investigative obligations had been satisfied. The court concluded that the Article 2 investigative obligation, revived in 2005, has not yet been fulfilled.

The court therefore allowed the appeal and declared that the Article 2 investigative obligation remains unsatisfied. However, the court declined to issue a mandamus ordering the AGNI to hold a fresh inquest, instead directing that the AGNI reconsider the matter in light of the judgment.

The decision requires the AGNI to re-evaluate the situation, considering the potential effectiveness of further investigations or a fresh inquest, the availability of witnesses, the powers of a coroner, and the possible role of civil proceedings.

No new precedent was set beyond clarifying the applicability and scope of the revival doctrine under Article 2 in cases involving state duties to protect life beyond prosecution of perpetrators. The direct effect is to mandate further consideration by the AGNI rather than immediate judicial compulsion.