Cameron, Application for Judicial Review (No. 1 and 2)

Factual and Procedural Background

This appeal arises from judicial review applications concerning the investigation into the murder of the Appellant's father, who was killed alongside another individual by a paramilitary group in 1993. The Appellant challenged the failure of a police investigative unit (the Historical Enquiries Team within the Police Service of Northern Ireland) to release findings related to the death and the alleged failure by the police and the Police Ombudsman to complete an investigation compliant with Article 2 of the European Convention on Human Rights (ECHR). The trial judge dismissed the judicial review applications against both the police service and the Police Ombudsman. The present appeal challenges those dismissals.

The factual background includes that on 26 October 1993, two armed men attacked a council depot, resulting in two deaths and multiple injuries. The police investigation led to arrests and convictions of two individuals, though the original gunmen were not identified. The appellant's family sought a review by the Historical Enquiries Team, but this was delayed and ultimately incomplete due to the disbandment of the team. The appellant alleges collusion and failings in both the original investigation and the review process, asserting that these failures engage the procedural obligations under Article 2 ECHR.

Legal Issues Presented

1. Whether the trial judge erred in concluding that the Brecknell threshold for reviving an Article 2 investigative obligation "will not be lightly satisfied" and that the threshold had not been met in this case.
2. Whether the trial judge erred in concluding that the genuine connection test was not satisfied.
3. Whether the trial judge erred in concluding that no clear and unambiguous undertaking was made that would give rise to a legitimate expectation that the Historical Enquiries Team report would be published.

Arguments of the Parties

Appellant's Arguments

• The appellant contended that the original police investigation and subsequent review failed to meet the procedural requirements of Article 2 ECHR due to alleged collusion and investigative deficiencies.
• He argued that the Brecknell test for reviving an investigative obligation should be applied broadly and that the threshold is fairly easy to meet when there is plausible and credible evidence.
• The appellant relied on various pieces of evidence and reports, including allegations of collusion, absence of preventative measures such as checkpoints, and intelligence documents marked as "No Downward Dissemination" indicating possible informant involvement.
• He submitted that the genuine connection test was satisfied because the investigation continued or ought to have continued after the Human Rights Act 1998 came into force.
• He argued that a legitimate expectation existed that the Historical Enquiries Team report would be published based on representations made to the family.

Respondents' Arguments

• The police service maintained that the original investigation was comprehensive, leading to convictions, and that all reasonable investigative steps had been pursued.
• They disputed the appellant's evidence as circumstantial, unsubstantiated, or irrelevant to the identification or prosecution of perpetrators, thus not meeting the Brecknell test.
• The respondents explained the intelligence documents and the absence of checkpoints as lacking any credible evidence of collusion or wrongdoing.
• The respondents argued that the genuine connection test was not met because the appellant's evidence was general and unsubstantiated rather than specific new evidence warranting renewed investigation.
• Regarding legitimate expectation, the respondents denied that any clear, unambiguous promise had been made to the appellant or his family about publication of the report.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the settled legal principles under Article 2 ECHR, focusing on the procedural obligation to investigate unlawful deaths and the circumstances under which this obligation may revive after the passage of time, as articulated in Brecknell and subsequent case law.

The court carefully examined the appellant’s evidence alleging collusion, investigative failings, and other deficiencies. It noted that the trial judge had conducted a thorough factual evaluation, considering whether the new material was plausible or credible and relevant to the identification and prosecution of perpetrators. The judge concluded that the evidence did not meet the Brecknell threshold, emphasizing that generalised allegations or evidence relating to collusion in other cases could not satisfy the test in this specific case.

The court agreed with the trial judge’s findings that:

• The state of knowledge about potential collusion did not constitute new plausible or credible evidence sufficient to revive the investigation.
• Allegations regarding the absence of preventative measures such as checkpoints lacked evidential support relevant to prosecution.
• Intelligence documents marked "No Downward Dissemination" were explained and did not demonstrate informant involvement relevant to the case.
• The loss of certain physical evidence (balaclava) was acknowledged but deemed insufficient to sustain a claim of collusion.
• Assertions about weapon provenance lacked evidential support and were not new material arising after the critical date.

Regarding the genuine connection test, the court found that while the temporal requirement was met, the appellant’s evidence did not show that a major part of the investigation had been, or ought to have been, carried out after the Human Rights Act 1998. The court agreed with the trial judge that unsubstantiated allegations could not satisfy this test.

On the issue of legitimate expectation, the court applied the established legal standard requiring a clear and unambiguous promise by a public authority. It found no evidence that such a promise was made regarding publication of the Historical Enquiries Team report.

The appellate court conducted its own review applying the guidance from the most recent Supreme Court authority (Dalton), including the application of Brecknell to non-perpetrator cases. The court concluded that no plausible or credible new evidence existed to warrant revival of the investigative obligation.

Holding and Implications

The court DISMISSED the appeal, affirming the trial judge’s decisions dismissing the judicial review applications against the police service and the Police Ombudsman.

The direct effect of this decision is that there will be no revival of the Article 2 investigative obligation in relation to the appellant’s father's murder based on the evidence presented. The court recognized the appellant’s family’s suffering but emphasized the necessity to apply the law strictly when assessing revival of investigative duties. The judgment does not establish new precedent but applies existing legal principles to the facts of this case.