Summary of Judgment: [2025] NICA 64

Factual and Procedural Background

This matter concerns an application by Soldiers A & C ("the Appellants") for leave to apply for judicial review of a decision of the Attorney General ("the Respondent") dated 18 April 2024 directing a fresh inquest into the death of the deceased on 15 April 1972 during a period of civil disturbance in the Markets area of The City.

The factual background, as described in the opinion, is that a vehicle checkpoint was in place, a police officer sought assistance to arrest the deceased who was said to be an active member of Organisation A, there was an encounter between the police officer and the deceased, the deceased ran, and shots were discharged by three soldiers; the deceased died as a result. The three soldiers involved were Soldiers A, B and C. Soldiers A and C were prosecuted for murder and were acquitted after certain contemporaneous statements were ruled inadmissible at trial. Soldier B died some years after the incident. The trial judge in the criminal proceedings (Judge O'Hara) criticised the process by which the statements were taken at the time; that decision is recorded in the criminal case law cited in the opinion.

The Respondent referred the death for a fresh inquest by direction under section 14(1) of the Coroners Act (1959). The Appellants sought judicial review challenging that decision on multiple grounds (illegality, irrationality, inadequate reasons, error of fact and law, and taking into account irrelevant considerations). At first instance, Judge Humphreys categorised the challenge under four heads and, on 29 May 2025, granted leave on two grounds and imposed a stay (other than filing the notice of motion) pending further order. An application to remove the stay was refused on 2 December 2025. The Appellants appealed, seeking renewal of leave on an additional ground and challenging the stay. The Court of Appeal heard the appeal and delivered judgment through Judge Keegan (delivering the judgment of the court), with Judges Colton and Fowler presiding on the panel.

Legal Issues Presented

1. Whether the Respondent erred in law in directing a fresh inquest by misdirecting herself as to the purpose of holding an inquest (specifically whether the direction was directed at creating a "public record").
2. Whether the Respondent made an error of fact in respect of the availability or existence of previous statements and evidence.
3. Whether the Respondent failed to provide adequate reasons for the direction.
4. Whether the Respondent took into account irrelevant considerations in directing a fresh inquest.
5. Whether the first instance judge erred in imposing a stay of further steps in the judicial review proceedings pending possible legislative change (i.e., whether the stay should be continued or lifted).

Arguments of the Parties

Appellants' Arguments

• The purpose of an inquest (as encapsulated in the statutory questions in the Coroners Rules (1963)) does not extend to creating a public record in the sense advanced by the Respondent; the Respondent misdirected herself as to purpose.
• The Respondent took into account an irrelevant consideration (the creation of a public record) and/or made an error of fact in concluding that a fresh inquest would serve to create a public record, given the existence of material already adduced in prior proceedings and inquest processes.
• The Appellants challenged the stay imposed at first instance, submitting that legislative developments (the Troubles Bill and related Framework Document) made it likely that the statutory regime would change and that the stay should not be used to shield the Respondent's decision from judicial scrutiny while that legislative process advanced.

Respondent's Arguments

• The Respondent had a broad discretion under section 14(1) of the Coroners Act (1959) to direct a fresh inquest and received submissions from interested parties before exercising that discretion.
• The factual difficulties identified by the Respondent (availability of witnesses and evidence) did not prevent an inquest from considering written statements and potentially receiving oral evidence, and therefore a fresh inquest could provide a public record of events.
• Regarding the stay, the Respondent submitted that the next of kin could refer the matter to the newly proposed Legacy Commission in the absence of a direction by the Attorney General and that significant legislative uncertainty remained; the first instance judge was within his discretion to impose a stay pending resolution of the legislative process.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ	Establishes that the imposition of a stay involves judicial discretion and such decisions are rarely reversed on appeal.	The court relied on the principle that stay decisions involve discretion and are rarely disturbed, supporting deference to the first instance judge's decision to impose a stay.
Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 2284 (QB)	Sets out circumstances in which an appellate court might reverse a stay: (i) misdirection in law; (ii) procedural unfairness; (iii) taking into account irrelevant matters; (iv) failing to take into account relevant matters; (v) decision plainly wrong.	The court applied these criteria as the appropriate test for assessing whether the first instance judge's stay decision should be overturned and concluded none of the criteria for reversal were met.
Jordan [2019] UKSC 9	Example of a stay decision being reversed in a Northern jurisdiction; fact-specific authority.	The court noted Jordan as a fact-specific instance where a stay was reversed, but distinguished it from the present case and treated it as not requiring disturbance of the first instance judge's discretion here.
McCord (unreported, 18 January 2019)	Another Northern jurisdiction instance where a stay decision was reversed; illustrates fact-specific nature of such reversals.	The court acknowledged McCord but treated it as fact-specific and did not consider it to mandate overturning the present stay.
Illegal Migration Act 2023 case [2024] NIKB 44	Illustrates circumstances in which a stay was imposed by the Court of Appeal and the Supreme Court refused leave to appeal; emphasizes case-specific nature of stay decisions.	The court referenced this case as part of the broader context showing stays have been used in other significant cases; it reinforced the point that such decisions are context‑sensitive and do not dictate reversal here.

Court's Reasoning and Analysis

The Court of Appeal approached the appeal in two main parts: (1) the renewal application for leave to challenge the Respondent's direction on the ground of error in law (purpose of an inquest/public record), and (2) the challenge to the first instance judge's imposition of a stay.

1. Renewal of leave (Ground 1). The court examined paragraph 30 of the Respondent's decision, which stated that despite witness availability issues a fresh inquest could consider written statements and potentially receive oral evidence and "provide a public record of what occurred." The court considered the Appellants' pleading that this reference to a "public record" could amount to taking into account an irrelevant consideration and to an error of fact or law about the purpose of an inquest. The court observed that the judge at first instance did not address these specific aspects of the Appellants' argument. Weighed against the requirement for arguability at leave stage, the Court found the Appellants' argument on this point to be arguable. Accordingly, leave was granted to renew the application on the ground that the Respondent either misdirected herself as to the purpose of an inquest, took into account an immaterial consideration, or made an error of fact concerning the public record point.

2. Imposition of a stay (Ground 2). The court reiterated the well-established principle that the imposition of a stay is a discretionary exercise and that appellate interference is uncommon. It adopted the Azam criteria to frame the circumstances in which a stay might be set aside. The court reviewed the reasons given by Judge Humphreys for the stay: at the time of his decision the Legacy Act operated to prohibit new inquests caught by its provisions, meaning there was no practical utility in proceeding, and it would be preferable to wait for legislative developments. The court noted subsequent parliamentary developments (the Troubles Bill and a proposed clause 84 introducing a new decision-making mechanism) but emphasised that the legislative process remained uncertain and the final content of any statute was not yet settled.

The court considered the appellants' submission that legislative change was sufficiently probable to justify lifting the stay now, but concluded that the first instance judge had not acted beyond the range of reasonable decisions. The judge had properly considered the overriding objective in the court rules, the uncertainty relating to timing and content of legislative change, and the absence of demonstrable misdirection or other defects identified in Azam. The Court therefore declined to overturn the stay, observing that once the Bill (if enacted) received Royal Assent the appellants would be in a stronger position to pursue the judicial review and that the balance could be revisited should other issues (including delay) arise.

Holding and Implications

Holding: The Court granted leave to the Appellants (Soldiers A & C) on the limited ground that the Respondent's decision was arguable as having involved either an error of law (misdirection as to the purpose of an inquest), taking into account an immaterial consideration, or an error of fact with respect to the proposition that a fresh inquest would create a public record. The Court dismissed the appeal against the first instance judge's imposition of a stay at the present time.

Implications:

• The Appellants are permitted to pursue judicial review on the specified ground relating to the Respondent's reference to a "public record"; the substance of that claim will require fuller argument at a substantive hearing if and when appropriate.
• The stay imposed by the first instance court remains in place for now; the practical effect is that no further steps (beyond filing the notice of motion) are to be taken while the stay stands. The Court emphasised that the stay is contingent on ongoing legislative developments and that this balance may change after enactment or if other factors such as delay arise.
• The decision does not purport to establish new, broad precedent beyond the conclusions reached on leave and the assessment of discretion to impose a stay; the court expressly treated stay decisions as fact‑sensitive and within a generous ambit of reasonable disagreement.

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Judges: Judge Keegan (delivering the judgment of the court), Judge Colton, Judge Fowler.

Counsel: Attorney Aiken and Attorney Law for the Appellants (instructed by Solicitors Firm A); Attorney McGleenan and Attorney Compton for the Respondent (instructed by the Solicitor for the Attorney General).