McEvoy, Application for Judicial Review

Factual and Procedural Background

This opinion concerns an appeal from a judgment of the High Court of Justice in Northern Ireland (King's Bench Division) dated 31 March 2023. The original judgment found that the Defendant, the Chief Constable of the Police Service of Northern Ireland ("PSNI"), breached Articles 2 and 3 of the European Convention on Human Rights ("ECHR") by failing to ensure a prompt and effective investigation into a shooting incident in 1992 at the Thierafurth Inn, Kilcoo, Co Down. The Plaintiff was a victim who narrowly escaped injury or death in the attack, in which one individual was killed.

The breach finding was not appealed, and a formal declaration was agreed that the Defendant had failed to carry out an investigation in accordance with Articles 2 and 3 ECHR into the incident.

The factual background includes a 2016 Police Ombudsman report which criticized the original investigation for lack of objectivity and failure to share intelligence, undermining the investigation. The Plaintiff was unaware that suspects had been identified shortly after the attack until the report's publication. Following the report and a 2017 documentary naming suspects and alleging prior knowledge by security forces, no fresh police investigation was undertaken. The case was subject to various procedural developments, including judicial review proceedings commenced in 2017, stays related to the independence of the PSNI, and a series of interlocutory rulings and appeals culminating in the 2023 damages judgment.

Legal Issues Presented

1. Whether damages should be awarded to the Plaintiff for the Defendant's breach of Articles 2 and 3 ECHR due to delay and failure to conduct a prompt and effective investigation.
2. The appropriate quantum of damages necessary to afford just satisfaction under section 8 of the Human Rights Act 1998, taking into account the principles applied by the European Court of Human Rights.
3. The impact of ongoing litigation and stays on the period of culpable delay for which damages may be awarded.

Arguments of the Parties

Appellant's Arguments

• The appellant argued that there was no or reduced culpable delay due to the case being stayed pending appellate decisions on the independence of the PSNI.
• The appellant sought to introduce late affidavit evidence describing investigative steps taken, contending that this evidence should be considered in assessing damages.

Respondent's Arguments

• The respondent maintained that the Defendant breached Articles 2 and 3 ECHR by failing to conduct a prompt and effective investigation over a prolonged period, including after the 2016 Police Ombudsman report and the 2017 documentary.
• The respondent sought damages reflecting the distress and anxiety caused by the delay in investigation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Faulkner) v Secretary of State for Justice [2013] 2 AC 254	Guidance on assessing damages for human rights breaches; quantum as a matter of judgment guided by ECtHR practice.	Cited to establish that damages must reflect ECtHR awards in comparable cases and include compensation for distress and anxiety.
R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673	Principles on awarding damages under the Human Rights Act, including the necessity of damages to afford just satisfaction.	Applied as the primary guidance for awarding damages and determining their amount.
Re Jordan [2019] NICA 61	Application of damages principles in cases involving Article 2 breaches and delay.	Used to illustrate how damages were awarded for periods of culpable delay and to explain structural differences between ECtHR and domestic claims.
R (Faulkner and Sturnham) v Secretary Of State for Justice and Another [2013] UKSC 23	Further guidance on damages under section 8 of the Human Rights Act, emphasizing ECtHR awards as reliable guidance.	Reinforced the approach to damages and the resolution of disputed facts.
Finucane litigation [2023] NIKB 42	Award of damages for breach of Article 2 due to excessive delay in investigation.	Referenced as a recent example of damages awarded for delay causing distress and anxiety.
Molla Sali v Greece (2020) 71 EHRR SE3	ECtHR principles on non-pecuniary damages and moral damage arising from breaches of fundamental rights.	Applied to emphasize the impact of investigative delays on next of kin and the nature of non-pecuniary awards.
Varnava v Turkey (16064/90) ECHR 2009	Principles on non-pecuniary damages for trauma and distress caused by violations.	Supported the reasoning on moral damage and just satisfaction.
Cyprus v Turkey (25781/94) ECHR 2014	Similar principles on non-pecuniary damages as Varnava.	Reinforced the approach to moral damages for breaches of Convention rights.
Sargsyan v Azerbaijan (no. 40167/06) 12 December 2017	Illustration of severity of damage in non-pecuniary awards for breaches of Article 2.	Used to highlight the importance of recognition of moral damage in awards.
R (McQuillan) [2019] NICA 3; [2021] UKSC 55	Determination of PSNI independence for investigations.	Contextual relevance for stays and litigation affecting the period of culpable delay.
R (Finucane) [2019] UKSC 7	Convention-compliant approach in judicial proceedings involving human rights claims.	Referenced to justify the Court of Appeal’s obligation to hear the appeal despite procedural irregularities.

Court's Reasoning and Analysis

The Court of Appeal acknowledged the procedural difficulties arising from the appellant's failure to fully present arguments on culpable delay at first instance, particularly regarding the impact of ongoing litigation and stays on the delay period. Despite this, the court proceeded to address the issue due to the Convention context requiring a fair hearing.

The court reiterated that damages claims for breaches of Convention rights require a separate inquiry into whether damages are necessary to afford just satisfaction, as mandated by section 8 of the Human Rights Act 1998 and established case law.

The trial judge's application of legal principles and factual findings were upheld. The judge had found a six-year period of delay with no investigative steps, but also recognized the effect of stays related to the PSNI's independence litigation. The Court of Appeal agreed that the period of culpable delay should be adjusted to exclude the stay period, reducing it effectively to approximately one to two years following the 2016 Police Ombudsman report and the 2017 documentary.

The late affidavit evidence filed by the appellant was found not to materially alter the assessment of culpable delay or absolve liability.

The court considered the distress and anxiety caused by the delay and concluded that damages were necessary to afford just satisfaction but should reflect the reduced period of culpable delay due to the litigation context.

Holding and Implications

The Court of Appeal allowed the appeal in part by reducing the damages awarded from £10,000 to £5,000. The court affirmed the principle that damages were necessary to afford just satisfaction for the breach of Articles 2 and 3 ECHR due to delay in investigation.

The decision directly affects the quantum of damages payable by the Defendant to the Plaintiff, reflecting a shorter period of culpable delay. No new legal precedent was established, but the judgment clarifies the importance of considering ongoing litigation and stays when assessing damages for delay in human rights investigations.

The court indicated it would hear the parties on costs following this decision.