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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sinn Féin & Anor v Secretary of State for Northern Ireland [2007] EWHC 12 (Admin) (19 January 2007)
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Cite as: [2007] EWHC 12 (Admin)

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Neutral Citation Number: [2007] EWHC 12 (Admin)
Case No: CO/9939/2005

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand
London WC2
Friday 19th January, 2007

B e f o r e :

LORD JUSTICE RICHARDS
and
MR JUSTICE FORBES

____________________

The Queen (on the application of (1) Sinn Féin and (2) Conor Murphy) Claimants
-v-
Secretary of State for Northern Ireland Defendant
The Independent Monitoring Commission Interested Party

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Computer-Aided Transcript of the Stenograph Notes of
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____________________

Rabinder Singh QC and Dan Squires (instructed by Howe & Co) for the Claimants
Dinah Rose QC (instructed by The Treasury Solicitor) for the Defendant
John F Larkin QC and Kristina Stern (instructed by Cleaver Fulton Rankin) for the Interested Party

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

Lord Justice Richards :

  • This is the judgment of the court. The claimants are Sinn Féin and one of its senior members, Conor Murphy MLA MP, but for convenience we will refer only to Sinn Féin except where specific reference to Mr Murphy's evidence is required. In its original form the claim was brought against the Independent Monitoring Commission ("the IMC"). The Secretary of State for Northern Ireland ("the Secretary of State") was then added as a defendant by amendment. On 23 June 2006, Collins J refused a renewed application for permission to proceed against the IMC but directed a "rolled up" hearing of the claim against the Secretary of State, so that the application for permission and the substantive claim could be considered together. The hearing before us proceeded on that basis, with Mr Rabinder Singh QC and Mr Dan Squires representing Sinn Féin and Ms Dinah Rose QC representing the Secretary of State. The IMC, although no longer a defendant, appeared as an interested party and was represented by Mr John F Larkin QC and Ms Kristina Stern.
  • In broad outline, the claim relates to the reports of the IMC and decisions taken by the Secretary of State in reliance on those reports. Sinn Féin contends that it has been and continues to be unlawful for the Secretary of State to rely on the reports because they are vitiated by (a) the apparent bias of the members of the IMC, (b) the failure of the IMC to apply any standard of proof in its decision-making process, when it ought to have applied what is sometimes referred to as the heightened civil standard in relation to certain of its findings of facts, and (c) the failure of the IMC to inform Sinn Féin of the case it had to answer prior to making adverse findings against it.
  • The Secretary of State and the IMC take issue with each of those points but also raise a number of procedural objections to our hearing the substantive claim. It is contended that (a) the appropriate forum is Northern Ireland, not England and Wales, (b) the issues raised are not justiciable, or there exists an adequate alternative remedy through the Parliamentary process, (c) the claim is out of time and the court should refuse to extend time, and (d) the claim is an abuse of process, in that it raises issues that were or should have been included in a claim for judicial review heard by the High Court of Northern Ireland in February 2005.
  • Those various procedural objections fall logically to be considered before the substance of the claim. First, however, we must set out the legal framework and factual background to the claim.
  • The IMC

  • The parties to the Belfast (Good Friday) Agreement of 18 April 1998 affirmed their total and absolute commitment to exclusively peaceful and democratic means of resolving differences on political issues and their opposition to any use or threat of force by others for any political purpose. Against the background of that agreement, subsequent political developments and continuing concerns about acts of paramilitarism and sectarian violence, the Government of Ireland and the Government of the United Kingdom announced in a Joint Declaration of 1 May 2003 that they would establish a body to monitor and report on paramilitary activity and security normalisation in Northern Ireland. The two governments then entered into an international agreement dated 25 November 2003 ("the International Agreement") setting out the aims, functions and constitution of the body in question, the IMC.
  • Article 1 of the International Agreement establishes the IMC. Article 2 provides that it shall be independent and shall have the legal capacity of a body corporate. Its functions are set out in Articles 3-7. The most important of those provisions are as follows:
  • "Article 3
    The objective of the Commission is to carry out the functions as described in Articles 4, 5, 6 and 7 of this Agreement with a view to promoting the transition to a peaceful society and stable and inclusive devolved Government in Northern Ireland.
    Article 4
    In relation to the remaining threat from paramilitary groups, the Commission shall:
    (a) monitor any continuing activity by paramilitary groups including:
    (i) attacks on the security forces, murders, sectarian attacks, involvement in riots, and other criminal offences;
    (ii) training, targeting, intelligence gathering, acquisition or development of arms or weapons and other preparations for terrorist campaigns;
    (iii) punishment beatings and attacks and exiling;
    (b) assess:
    (i) whether the leaderships of such organisations are directing such incidents or seeking to prevent them; and
    (ii) trends in security incidents.
    (c) report its findings in respect of paragraphs (a) and (b) of this Article to the two Governments at six-monthly intervals; and, at the joint request of the two Governments, or if the Commission sees fit to do so, produce further reports on paramilitary activity on an ad hoc basis.
    Article 5
    Article 6
    (1) The Commission may consider a claim by any party represented in the Northern Ireland Assembly:
    (a) that a Minister, or another party in the Assembly, is not committed to non-violence and exclusively peaceful and democratic means; or
    (b) that a Minister has failed to observe any other terms of the pledge of office; or that a party is not committed to such of its members as are or might become Ministers observing the other terms of the pledge of office.
    Article 7
    When reporting under Articles 4 or 6 of this Agreement, the Commission … shall recommend any remedial action considered necessary. The Commission may also recommend what measures, if any, it considers might appropriately be taken by the Northern Ireland Assembly, such measures being limited to those which the Northern Ireland Assembly has power to take under relevant United Kingdom legislation."
  • Article 8 provides that in preparing its reports and making recommendations as described in Article 7 the IMC shall be accessible to all interested parties and shall consult as necessary on the issues mentioned in Articles 4-6. Article 9 provides that the Government or Governments to which the IMC reports shall take steps to make those reports public.
  • By Article 10, the IMC is to consist of four members: two (one of whom is to be from Northern Ireland) appointed by the United Kingdom Government, one by the Government of Ireland, and one (who is to be a nominee of the US Government) by the two governments jointly.
  • Other articles, which it is unnecessary to recite, cover matters such as the enjoyment of privileges, immunities and inviolabilities (Article 11); funding, premises, facilities and services (Article 12); and restrictions on disclosure of information by members and staff (Article 13(1)). Article 13(2) provides that the IMC shall not do anything in carrying out its functions which might (i) prejudice the national security interests of Ireland or the United Kingdom, (ii) put at risk the safety or life of any person, or (iii) have a prejudicial effect on any legal proceedings.
  • The IMC's position in UK law is governed by the Northern Ireland (Monitoring Commission etc) Act 2003.
  • Powers to act on the IMC's reports

  • The IMC's reports are relevant to certain powers enjoyed both by the Northern Ireland Assembly and by the Secretary of State. Those powers are contained in the Northern Ireland Act 1998, as amended ("the 1998 Act"). So long as the Assembly is suspended pursuant to section 1 of the Northern Ireland Act 2000, certain of the powers of the Secretary of State are modified by the Northern Ireland Act 1998 and Northern Ireland Act 2000 (Modification) Order 2004 ("the 2004 Modification Order").
  • Section 30 of the 1998 Act contains various powers for the Assembly to pass a resolution excluding a Minister or junior Minister from holding office, and to exclude members of a political party from holding office as Ministers or junior Ministers, on the ground that, inter alia, they do not enjoy the confidence of the Assembly because they are not committed to non-violence and exclusively peaceful and democratic means. If the Secretary of State is of the opinion that the Assembly ought to consider a resolution under the section, he shall serve a notice on the Presiding Officer requiring him to move a motion for such a resolution. One of the matters that the Secretary of State shall in particular take into account in forming such an opinion is "any recommendation about steps the Assembly might consider taking which is contained in a report made" by the IMC or by members of the IMC under the agreement establishing it (section 30(7)(e)).
  • Section 30A confers power on the Secretary of State to achieve the same result by direction in certain circumstances where, following a recommendation contained in a report by the IMC or its members, a motion for a resolution by the Assembly under section 30 has failed.
  • Section 47A makes provision for a reduction in the remuneration of a Minister or junior Minister, or of members of a political party, where the Assembly resolves that the whole or part of their salary shall not be payable because, inter alia, they are not committed to non-violence and exclusively peaceful and democratic means.
  • Section 47B confers power on the Secretary of State to achieve the same result by direction in certain circumstances where, following a recommendation contained in a report by the IMC or its members, a motion for a resolution by the Assembly under section 47A has failed.
  • Section 51A makes provision for a reduction in the financial assistance payable to a political party under the Financial Assistance for Political Parties Act (Northern Ireland) 2000 on the ground that, inter alia, the political party concerned is not committed to non-violence and exclusively peaceful and democratic means.
  • Section 51B confers power on the Secretary of State to achieve the same result by direction in certain circumstances where, following a recommendation contained in a report by the IMC or its members, a motion for a resolution by the Assembly under section 51A has failed.
  • While the Assembly is suspended, the Secretary of State's powers to make a reduction in remuneration or a reduction in financial assistance under sections 47B and 51B of the 1998 Act are modified by the 2004 Modification Order. In summary, the modifications provide that where the IMC has made a report recommending the Assembly to take measures to reduce remuneration or financial assistance and such reduction would require the Assembly to pass a resolution, the Secretary of State can himself order the reduction while the Assembly is suspended.
  • Although the other provisions to which we have referred are all relevant to a consideration of the IMC's place within the legal structure of the United Kingdom and to the requirements of procedural fairness in relation to the IMC's reports, the decisions directly in issue were taken by the Secretary of State in the exercise of his powers under section 51B of the 1998 Act as modified by the 2004 Modification Order. Accordingly, that is the only section that we need set out in detail. It reads in material part:
  • "51B.(1) This section applies if –
    (a) the Monitoring Commission has, or members of the Commission have under the agreement establishing it, made a report containing a recommendation about steps which are steps the Assembly might consider taking were section 1 of the Northern Ireland Act 2000 not in force; and
    (b) the taking of those steps by the Assembly would require the passing by it of a resolution under section 51A(1), (2) or (3) in relation to a political party.
    (2) Where this section applies in circumstances in which the taking of the steps concerned by the Assembly would have required the passing by it of a resolution under section 51A(1), the Secretary of State may be direction provide that the whole or a specified part of any financial assistance payable for a specified period under the Financial Assistance for Political Parties Act (Northern Ireland) 2000 to the political party concerned shall not be payable (subject to subsection (5)).
    (5) The Secretary of State may exercise the power under subsection (2), (3) or (4) only if he is satisfied that the political party concerned –
    (a) is not committed to non-violence and exclusively peaceful and democratic means; or
    (b) is not committed to such of its members as are or might become Ministers or junior Ministers observing the other terms of the pledge of office."

    The IMC's membership

  • In a scoping brief for the IMC, dated July 2003, the requirements as to membership were expressed as follows:
  • "6. The membership should, by virtue of its inherent quality and expertise, make an invaluable personal contribution to promoting confidence in the Commission.
    7. Clearly, the appointees must be of high regard in their own jurisdictions. It would be helpful, but not essential, if they were internationally acknowledged in their own fields of expertise.
    8. Given the full scope of the IMC's responsibilities, the appointees will also need developed political awareness and sensitivity, and will need to demonstrate their independence. Previous independent posts would be useful but are not essential. An appreciation of the affairs of Northern Ireland would assist. IMC members must be able to work with the relevant police and army authorities in order to monitor paramilitary activity and the implementation of the normalisation commitments effectively and to report with credibility. Experience of working within or alongside a policing or security environment would be highly beneficial.
    9. The above is the ideal position. It might be necessary to achieve this mix of skills through selection of individuals who collectively, rather than individually, meet these criteria: but individuals who display most or all of these attributes would undoubtedly help to command confidence in the IMC. The aim would be to get a balance of skills and experience. However, given the focus of the work, it is likely that some of the members would have expertise in police or military matters. At least one member might be someone with experience working with or in the public sector at either a political or administrative level, or have a judicial or legal background."
  • The four commissioners first appointed, all of whom remain still in office, were Lord Alderdice and Mr John Grieves (appointed by the UK Government), Mr Joe Brosnan (appointed by the Irish Government) and Mr Richard Kerr (the US nominee appointed by the two governments jointly).
  • The IMC's methodology

  • On 9 March 2004 the commissioners issued a statement (which was subsequently included as an annex to the IMC's First Report) on how they planned to go about those parts of their remit that had been activated. The statement dealt primarily with the function of reporting on the continuing activities of paramilitary groups. The commissioners said that their starting point was Article 3 of the International Agreement, namely that the objective of the IMC was to carry out its functions with a view to promoting the transition to a peaceful society and stable and inclusive devolved Government in Northern Ireland, and they continued:
  • "5. This Article will guide us in all that we do. It places a heavy responsibility on us to act in a way which has regard for the underlying purposes of the Belfast Agreement of 1998 and the Joint Declaration of May 2003. We know that we are only one among a large number who are working to the same end."
  • In the next section, concerning reports on activities by paramilitary groups, the commissioners referred to Articles 4 and 7 of the International Agreement, and went on:
  • "8. We want to make clear the significance of these provisions. Our successive reports will not be one-off self-contained documents but will constitute a continuing process. We intend to examine developments from one report to another, bearing in mind that under the Agreement we are obliged to monitor any activity of paramilitary groups and assess trends in security incidents …."
  • More was said about the continuing process of reporting at para 23, where the commissioners stated that, in respect of different groups, they would set out in their successive reports not only what they assessed to be the prevailing position, but what they would want to happen in the following period and how they would subsequently assess those developments. Thus each report would fall to be read as one of a number, and not as a final document.
  • Among other matters covered in the statement was a section on how the commissioners were going about their work under Article 4 and who they wanted to talk to. They said at para 14 that two things were essential if they were to be able to report "with as much confidence as possible". The first was that they should have ready access to the law enforcement and security authorities in the United Kingdom and Ireland, and where necessary to such authorities in any other country that might be able to help them. The second was that they receive the views of political parties, clergy, community groups and individual members of the public on both sides of the border. It was essential that everybody felt able to make their views known and had confidence that everything the IMC had been told had been taken into account. An assurance was given that this would be the case. It was also made clear that those who wished to contact the IMC privately could be assured that their confidences would be maintained. Finally in this section it was stated:
  • "18. In reporting on the activities of paramilitary groups we are thus seeking the best information and intelligence possible from the maximum number of sources. We will make our assessments on the basis of that material using our best judgment. We are not bound by the strict rules of evidence applicable in a court of law. We will of course continue to take full account of the rights of others and will [treat] people with fairness and impartiality."
  • A further exposition of the IMC's approach to its work is to found in its Fifth Report, which contains the following important passage:
  • "1.9 We have been asked a number of times how we make our assessments and on what information we base them. Some have asked us to put more material in the public domain. Some have challenged us on grounds that we may be or appear to be biased, and we continue carefully to consider that issue. We hope it would be helpful if we say something about the way we work.
    1.10 We believe it is a great strength that the four Commissioners come from different backgrounds and have different perspectives. We seek to maximise the benefit this gives us by challenging each others' thinking as well as challenging those we meet. We try to develop assessments based on more than one source. We see if there are links between what we learn from different people and we expect to be able to triangulate different perspectives before we reach conclusions. We probe the nature and logic of the information we receive. We examine whether there are any inconsistencies. We challenge any gaps there appear to be. We question whether there might be any bias either in our own approach or in that of others and take steps to ensure it does not influence our conclusions inappropriately. We ask ourselves and our interlocutors whether other conclusions might as reasonably be drawn from the same set of circumstances. We test the confidence placed in the material and in opinions associated with it. We do all this before we come to any view, and before we write our reports. The conclusions we draw are our own.
    1.11 Our sources are wide ranging. They include the law enforcement and other agencies of the UK and Ireland, as well as of any other country from which we have things to learn. But they are much wider than that. In addition to government officials and police officers we have met people from the following categories in Great Britain, Ireland North and South and in the United States: Political parties; government officials; police; community groups; churches; charities; pressure groups and other organisations; former combatants, including ex-prisoners; representatives of businesses; lawyers; journalists; academics; victims; private citizens, individually and as families. We urge everybody with something material to our work to get in touch with us. We also try to take account of the work of other boards, commissions and similar bodies in Northern Ireland and elsewhere.
    1.12 We are very careful what we say in our reports. From the beginning we have adhered to one firm principle. We treat everything we hear, including the identities of those who communicate with us, in complete confidence. Only in this way can they be expected to impart information to us, and without that information we cannot do the job the two Governments have charged us with. We will therefore not reveal our sources, though those people are free to say what they like about their communications with the IMC. The International Agreement lays down other constraints on us, for example so that we do not prejudice legal proceedings or jeopardise anybody's safety. But the most significant restraint is self-imposed: we will not say anything, or draw any conclusion, unless we have confidence in it, and we will qualify conclusions if we think that is necessary. We did this, for example, in our initial attribution of certain robberies in late October 2004.
    1.13 We are not infallible, but we do believe we are thorough in our methods and measured in our assessments. If we find one of our conclusions does not stand up in the light of later information we will acknowledge this in a subsequent report."

    The IMC's reports

  • The First Report of the IMC was presented to the UK and Irish Governments on 20 April 2004. The report considered the activities of seven paramilitary groups. One group examined, at paras 3.10-3.14, was the Provisional IRA ("PIRA"). The report stated that PIRA was a well-funded organisation deriving a substantial income from smuggling and other criminal activities. It was not presently involved in attacks on security forces. It was, however, highly active in paramilitary shootings short of murder. The report concluded that "PIRA is engaged in the use of serious violence which we believe is under the control of its most senior leadership, whose members must therefore bear responsibility for it" (para 3.14). One of the specific incidents examined was an incident in Belfast on 20 February 2004 in which four men allegedly beat and attempted to imprison another man (paras 5.1-5.6). The report noted:
  • "5.6 We have received information from a number of official and unofficial sources. We have carefully reviewed all of this material. We are conscious that we are not bound by the strict rules of evidence and that the material has not been subject to testing one could expect in a criminal trial. We do however believe this material, taken as a whole, indicates that the operation was one planned and undertaken by the Provisional IRA."
  • In a section headed "Leadership of paramilitary groups", the report examined the relationship between paramilitary groups and political leadership. It stated:
  • "7.3 … Two parties that would be represented in a restored Assembly have links to paramilitary groups – Sinn Féin and the Progressive Unionist Party.
    7.4 It is difficult to be precise about what the relationship between Sinn Féin and the PIRA really is or about the PIRA's own decision-making processes. Nevertheless, on the basis of the information we have received we believe that the situation can reasonably be summarised as follows:
    - Some members, including some senior members, of Sinn Féin are also members, including, in some cases, senior members of PIRA.
    - Sinn Féin, particularly through their senior members, is in a position to exercise considerable influence on PIRA's major policy decisions, even if it is not in a position actually to determine what policies or operational strategies PIRA will adopt. We believe that decisions of the republican movement as a whole about these matters lie more with the leadership of PIRA than with Sinn Féin.
    - Within PIRA some decisions follow a process of consultation with the membership initiated by the leadership.
    7.5 We recognise that there might not have been a PIRA ceasefire in the first place without influence from the leadership of Sinn Féin. By the same token Sinn Féin must bear its responsibility for the continuation by PIRA of illegal paramilitary activity and must recognise the implications of being in this position."
  • The final section of the report included the following recommendations pursuant to the IMC's powers under Article 7 of the International Agreement:
  • "8.5 In the case of measures to be taken by the Assembly, they cannot apply until such time as the Assembly is restored. We nevertheless want to make clear that had the Assembly now been functioning, we would have recommended in respect of Sinn Féin and the Progressive Unionist Party measures up to and possibly including exclusion from office. In this way we can best indicate to those who are elected to the Assembly and who may aspire to serving in a devolved administration what they might expect from us at such time as restoration may come. Any recommendations we might make following restoration of the Assembly would be proportionate to the then prevailing circumstances. We realise that the recommendation of Assembly measures cannot affect those associated with paramilitary groups who have not been elected as MLAs, and that some might see this as unbalanced. We do not accept that view. People elected to the Assembly are in a special position and they have responsibility to preserve the highest possible democratic standards. Moreover, most of our recommendations apply to all paramilitary groups.
    8.6 Whilst the Northern Ireland Assembly remains un-restored and it is not therefore possible for us to recommend measures it might take, we recommend that the Secretary of State should consider taking action in respect of the salary of Assembly members and/or the funding of Assembly parties so as to impose an appropriate financial measure in respect of Sinn Féin and the Progressive Unionist Party."
  • The first of the Secretary of State's decisions under section 51B of the 1998 Act that public funding be withheld from Sinn Féin was taken pursuant to that recommendation (see below).
  • The Second Report was ordered by the House of Commons to be printed on 20 July 2004. It concerned the security normalisation in Northern Ireland and is not material to these proceedings.
  • The Third Report was ordered by the House of Commons to be printed on 4 November 2004. At paras 3.9-3.11 it set out the IMC's views on PIRA, including that "PIRA has committed no murders and has engaged in a lower level of violence than in the preceding period, committing fewer paramilitary shootings and assaults", but "[w]e believe it was responsible for the major theft of goods in Dunmurry in May and was engaged in significant amounts of smuggling. In the South of Ireland certain of the organised criminal activity seems to have been closed down, and we have found no recent evidence of violent paramilitary activity". In relation to the theft at Dunmurry it was stated further (at para 5.9) that "[w]e … believe that the major theft by PIRA … would have been sanctioned at senior level."
  • In a section headed "Paramilitary groups: leadership" the report stated:
  • "7.2 In our first report we found that there were associations between the leadership of paramilitary groups and two of the parties elected to the Northern Ireland Assembly, namely Sinn Féin in respect of the PIRA and the Progressive Unionist Party in respect of the UVF and the RHC. The circumstances and associations were not the same in each case but we concluded that neither party had sufficiently discharged its responsibility to exert all possible influence to prevent illegal activity by the paramilitary groups with which they were associated. We noted that had the Assembly been functioning at that time we would have recommended measures against both these parties up to and possibly including exclusion from office, and that any recommendations we might make following restoration of the Assembly would be proportionate to the then prevailing circumstances. Because the Assembly was not restored at the time of our report we recommended that the Secretary of State should consider taking action in respect of the salary of Assembly members of these two parties and/or the funding of the parties. He decided to do the latter for a period of 12 months.
    7.3 In the light of the outcome of the talks involving the Northern Ireland political parties and the British and Irish Governments we will be considering whether the leadership of Sinn Féin and the PUP is exerting all possible influence to prevent illegal activity by the paramilitary groups with which they are associated."
  • The Fourth Report was ordered by the House of Commons to be printed on 10 February 2005. It was written on an ad hoc basis specifically in order to examine a robbery at the headquarters of the Northern Bank in Belfast which had taken place on 20 December 2004. The report noted:
  • "3. We believe that the robbery demands a special report for a number of reasons. It was exceptionally serious. About £26.5m was stolen. It was a high risk crime which required careful and lengthy advance planning. It involved the violent abduction of two employees of the Northern Bank and the unlawful imprisonment of their families, who continue to suffer as a result. In addition there are many other secondary victims, not least other bank employees who face the fear that similar things might happen to them and their families. There have been a number of other similar crimes in recent months. The question of responsibility for the robbery has had a significant impact on affairs in Northern Ireland and very different views have been publicly expressed about it. The possible involvement of a paramilitary group falls squarely within our remit.
    4. We have noted what has been said about responsibility for the robbery, both by the Chief Constable of the PSNI and by others. It is however incumbent on us to undertake our own independent analysis and assessment on the basis of all the information we are able to acquire, and this we have done. We have obtained information from a variety of official and other sources in Northern Ireland and the South. As we indicated in our last report, we meet a large number of people. In view of the public comments of senior representatives of Sinn Féin about responsibility for the robbery, and in particular the public statement that they had received a denial of responsibility direct from members of the PIRA, we invited them to meet us and give us the benefit of their understanding. Sinn Féin have said that while they had no knowledge of who was responsible for the robbery, they did not believe it was the IRA; that Mr Martin McGuinness had asked the IRA if they were involved and had been assured they were not; and that they believed this denial, which has since been made public. In these circumstances, and in the light of their views about the IMC, they said they did not believe a meeting with us at this time would serve a useful purpose. We have taken these statements into account, though we regret that they have felt unable to accept our invitation."
  • The report went on to state that "[w]e have carefully scrutinised all the material of different kinds that has become available to us since the robbery, which leads us to conclude firmly that it was planned and undertaken by the PIRA" (para 7). It also stated (at para 9) that the commissioners concluded on the basis of the information available to them that PIRA was responsible for a number of other crimes, namely the theft of goods in Dunmurry on 23 May; the abduction of people and the robbery of goods from the Strabane branch of Iceland on 26 September; and the abduction of people and the robbery of cigarettes with a market value of approximately £2m from a bonded delivery vehicle in Belfast on 2 October. Thus the robbery at the Northern Bank was one of a series of crimes that had enabled PIRA to gain very significant resources in recent months. The report stated (at para 11) that "[w]e believe that the Northern Bank robbery and abductions and the other robberies and abductions referred to above were carried out with the prior knowledge and authorisation of the leadership of PIRA."
  • The report then considered the "Implications for Sinn Féin." Having referred to the Good Friday Agreement and the relevant provisions of the 1998 Act, it recited the findings in the First Report about the links between Sinn Féin and the PIRA, and the conclusion that Sinn Féin had to bear its responsibility for the continuation by PIRA of illegal paramilitary activity. It continued :
  • "14. We draw the same conclusion about the responsibility of Sinn Féin in relation to the recent series of abductions and robberies. In our view Sinn Féin must bear its share of responsibility for all the incidents. Some of its senior members, who are also senior members of PIRA, were involved in sanctioning the series of robberies. Sinn Féin cannot be regarded as committed to non-violence and exclusively peaceful and democratic means so long as its links to PIRA remain as they are and PIRA continues to be engaged in violence or other crime. Although we note Sinn Féin has said it is opposed to criminality of any kind it appears at times to have its own definition of what constitutes a crime. We do not believe the party has sufficiently discharged its responsibility to exert all possible influence to prevent illegal activities on the part of PIRA."
  • The section on recommendations included the following:
  • "20. If the Northern Ireland Assembly was now sitting we would be recommending the implementation of the full range of measures listed in paragraph 12, including exclusion from office. We say this recognising that this would have implications for the running of the Executive and the Assembly.
    21. We are very aware that the imposition of financial penalties is bound to seem paltry against the background of a robbery of £26.5m. It has also been put to us that if financial penalties are imposed Sinn Féin will try to benefit from that by portraying themselves as victims. Be that as it may, in the light of the provisions of the legislation we have decided to recommend that the Secretary of State should consider exercising the powers he has in the absence of the Assembly to implement the measures which are presently applicable, namely the financial ones. It has also been suggested that Sinn Féin should not continue to receive public money from other sources if they are denied it in the context of the Northern Ireland Assembly. However, this is outside the measures available to us to recommend."
  • Following the Fourth Report, the Secretary of State decided to extend by a further twelve months the withholding of public funding from Sinn Féin.
  • The IMC's Fifth Report was ordered by the House of Commons to be printed on 24 May 2005. We have referred above to a passage in the report setting out the IMC's approach to its work. The report went on to state inter alia that "PIRA remains heavily engaged in organised crime, including for example the smuggling of fuel and tobacco" (para 2.11). It referred back to the findings of the earlier reports concerning the relationship between paramilitary groups and political leadership, including that between PIRA and Sinn Féin, and to the decision taken by the Secretary in relation to the continued withholding of public funding to Sinn Féin following the IMC's Fourth Report.
  • The Sixth Report was ordered by the House of Commons to be printed in September 2005. It examined a violent feud between two loyalist groups, the Ulster Volunteer Force and the Loyalist Volunteer Force, and is not material to these proceedings.
  • The Seventh Report was ordered by the House of Commons to be printed on 19 October 2005. As the report noted (at para 2.2), it followed a statement by PIRA on 28 July 2005 instructing all its volunteers "to assist the development of purely politically and democratic programmes through exclusively peaceful means" and indicating that volunteers "must not engage in any other activities whatsoever". In relation to PIRA's activities, the report noted that most of the period covered was prior to the making of the statement on 28 July. It referred to one incident occurring after the statement, but noted generally:
  • "3.18 In conclusion, on PIRA, we emphasise again that as the PIRA statement of 28 July came at a point when 5/6ths of the period under review had already elapsed it is too early to be drawing firm conclusions about possible overall changes in behaviour, although we do note some indications of changes in PIRA structures. Clearly we are looking for cumulative indications of changes in behaviour over a more sustained period of time, building on the PIRA statement of 28 July and the decommissioning of weapons reported by the IICD on 26 September."
  • In a section headed "Paramilitary groups: leadership", the report stated:
  • "6.4 We have said earlier in this report that five of the six months under review precede the PIRA statement and that it is therefore too early for us on this occasion to be drawing firm conclusions about possible changes in the organisation's overall behaviour. Although the initial signs are encouraging we do not therefore make any comment at this stage on the recommendation we previously made about the financial support Sinn Féin receives in the Northern Ireland Assembly. Nor do we pursue the point we then made separately about whether it should receive public money from other sources.
    6.5 We hope that when we next report in January 2006 it will be possible to draw firmer conclusions. What those conclusions might be will depend on the nature of the evidence. We will continue to apply the criteria we have adopted and to approach our work in the same way as hitherto. Some may expect more of us than it is possible to deliver, perhaps on the one hand seeking certainty where it does not exist or on the other hand asking us to prove a negative when it is not possible to do so. Our assessment will be as rigorous and as accurate as we can make it."
  • The Eighth Report was ordered by the House of Commons to be printed on 1 February 2006. In relation to PIRA the report stated:
  • "3.16 There are a number of signs that the organisation is moving in the way it had indicated in the July statement. Although some other signs are at best neutral and a few are more disturbing, most are in a positive direction. We are of the firm view that the present PIRA leadership has taken the strategic decision to end the armed campaign and pursue the political course which it has publicly articulated. We do not think that PIRA believes that terrorism has a part in this political strategy. It has issued instructions to its members about this change of mode, and has engaged in internal consultation to support the strategy."
  • After a detailed examination of various matters concerning the behaviour of PIRA and its members, the report summarised the position in these terms:
  • "3.25 To sum up, the position is not entirely straightforward. We see a number of definite signs of the organisation moving in the direction indicated in the 28 July statement. We see other signs which we would describe as neutral and some which are more disturbing. For example, some members continue to be engaged in significant crime and occasional unauthorised assaults. Whereas these assaults are not in our view sanctioned by the leadership, and may be directly against its wishes, the contrary appears to be the case with some other criminal activities such as the exploitation of financial assets PIRA had previously acquired or the illegal gathering of intelligence. The indications that PIRA appears to retain long term intentions to gather intelligence is also in our view a matter for concern. On the other hand we believe there is a clear strategic intent to turn the organisation on to a political path and there is good evidence that this is happening even given such constraints as there may be on the leadership in this regard."
  • The report concluded that given its findings in relation to PIRA, the IMC did not believe that financial measures against Sinn Féin of the kind referred to in the Fourth Report should continue (paras 5.4-5.8 and 6.4). The Secretary of State had in fact already directed the reinstatement of public funding to Sinn Féin with effect from 1 November 2005.
  • The Ninth Report was ordered by the House of Commons to be printed on 8 March 2006. It concerned the security normalisation in Northern Ireland and is not material to these proceedings.
  • The Tenth Report was ordered by the House of Commons to be printed on 26 April 2006. It summarised the findings in the Eighth Report and pointed to continuing progress. For example, it stated:
  • "2.15 We are not aware of current terrorist, paramilitary or violent activity sanctioned by the leadership. We have had no indications in the last three months of training, engineering activity, recent recruitment or targeting for the purposes of attack. There has now been a substantial erosion in PIRA's capacity to return to a military campaign without a significant period of build-up, which in any event we do not believe they have any intentions of doing. The instructions we have previously mentioned to refrain from violence or rioting still stand …. The leadership has actively redeployed members and has encouraged them to undertake other things such as working for Sinn Féin or community activities. There have been no paramilitary shootings or attacks attributable to PIRA in this period ….
    2.16 We have found signs that PIRA continues to seek to stop criminal activity by its members and to prevent them from engaging in it. We believe that some senior PIRA members may be playing a key role in this. This seems to us to be in accordance with the publicly articulated strategy ….
    2.17 We referred in our Eighth Report to our having received Reports that not all PIRA's weapons and ammunition had been handed over for decommissioning in September 2005 …. The relevant points are that … these Reports do not cast doubt on the declared intention of the PIRA leadership to eschew terrorism and to follow the political path. We will continue to monitor the position.
    2.18 As we mention above, we said in our Eighth Report that PIRA had engaged in intelligence gathering. Since that Report the situation appears to have moved more into line with the aims of the July statement …. We are currently not aware of intelligence-related activity which is outside the aims of the July statement."
  • The report made no recommendations as to public funding for Sinn Féin.
  • The Eleventh Report was ordered by the House of Commons to be printed on 6 September 2006. It concerned the security normalisation in Northern Ireland and is not material to these proceedings.
  • The Twelfth Report was ordered by the House of Commons to be printed on 4 October 2006. The report built on previous reports and noted inter alia the following in respect of Sinn Féin:
  • "4.4 We have reported at some length before on the successive moves made by Sinn Féin and PIRA over the last two and a half years. The statement made by the Sinn Féin President Mr Gerry Adams in April 2005 was a particular watershed in this regard; we said in our subsequent report that if he were able to deliver what he seemed to have suggested he would have demonstrated leadership of a high order. This statement was followed by the PIRA statement on 28 July that year and the decommissioning reported by the IICD on 26 September. We said in our last report six months ago that we had seen further evidence of positive leadership on the part of Sinn Féin and that the statement by Mr Adams continued to be built upon.
    4.5 We describe at some length in Section 2 above the position taken by the PIRA leadership. We say that we are firmly of the view that PIRA is set on the political path and that we believe the leadership is implementing the strategy. It is now a year and a half since Mr Gerry Adams's April 2005 statement and in the intervening period the Sinn Féin leadership has delivered on the intent set out in it. It has shown clear leadership on ending criminality. It has taken a strong line, including expulsions, with party members who threaten or use violence. It accordingly remains our view that the path indicated by Mr Adams in April 2005 continues to be built upon."
  • It will be seen from the above account that since the low-point of the Fourth Report, in February 2005, the IMC's reports have indicated consistent progress in relation to the Provisional IRA and Sinn Féin. By the time of the Eighth Report, in February 2006, the IMC was of the view that the financial measures against Sinn Féin should not continue. By the time of the Twelfth Report its views on the Provisional IRA and Sinn Féin were being expressed in very positive and favourable terms, as is evident from the passage just quoted.
  • The Secretary of State's decisions

  • As already mentioned, the first of the Secretary of State's adverse funding decisions followed the recommendation contained in the IMC's First Report. The direction was made on 28 April 2004, pursuant to section 51B(2) of the 1998 Act as modified by the 2004 Modification Order, and provided that no financial assistance should be payable to Sinn Féin under the Financial Assistance for Political Parties Scheme 2002 for a period of 12 months from 29 April 2004.
  • By a further direction made by the Secretary of State under section 51B(2) on 7 March 2005, following the IMC's Fourth Report, it was provided that no financial assistance should be payable to Sinn Féin under the 2002 Scheme for a further period of 12 months from 29 April 2005.
  • On 19 October 2005 the Secretary of State announced that he would restore Sinn Féin's Assembly financial assistance with effect from 1 November 2005.
  • Since that date Sinn Féin has been in receipt of the relevant financial assistance and the Secretary of State has taken no further relevant decisions pursuant to recommendations by the IMC. As explained below, he has declined Sinn Féin's request that financial assistance withheld for the period 29 April 2004 to 1 November 2005 be repaid.
  • The judicial review proceedings in Northern Ireland

  • In June 2004 Sinn Féin brought judicial review proceedings against the IMC and the Secretary of State in the High Court of Justice in Northern Ireland, challenging the very existence of the IMC as well as the Secretary of State's first decision to withhold public funding from Sinn Féin following the IMC's First Report. The claim form included contentions that the IMC was not independent and impartial because two of its members were appointed by the UK Government, but the case was not put in the terms in which the claim of apparent bias is advanced in the present proceedings. The claim form also included general allegations of procedural unfairness, including a contention that Sinn Féin had not had any opportunity to make meaningful representations to the IMC or the Secretary of State.
  • In a judgment delivered on 14 February 2005, Weatherup J dismissed the claim. He held inter alia that no ground had been established on which to maintain the challenge to the independence of the IMC (para 32). In relation to the allegation of procedural unfairness against the IMC, he held that Sinn Féin had had an opportunity to examine and make representations on the inquiries being undertaken by the IMC; but, instead of availing itself of that opportunity, it had elected to voice its opposition to the operation of the IMC (para 34). Similarly, in relation to the allegation of procedural unfairness against the Secretary of State, he held that Sinn Féin had had an opportunity to address the essential basis for the proposed action of the Secretary of State but had failed to avail itself of that opportunity (para 45).
  • No attempt was made to appeal against Weatherup J's judgment.
  • The present proceedings

  • Following Weatherup J's judgment, Sinn Féin did engage in exchanges with the IMC about procedures. In the course of that process, issues were raised about apparent bias, standard of proof and certain points on disclosure (though we will need to consider the detail of the disclosure issue when we come to consider the contention that the IMC failed to disclose to Sinn Féin the case it had to answer). Eventually, on 1 December 2005, Sinn Féin issued the claim form by which it sought judicial review against the IMC in this court.
  • On 28 November 2005, just before issuing the claim form, Sinn Féin's solicitors had sent the Secretary of State a letter before claim, complaining first of discriminatory treatment of Sinn Féin in relation to the imposition of financial sanctions, and arguing secondly that the Secretary of State's reliance on the IMC reports was unlawful because the reports themselves were unlawful on grounds of bias and a failure to apply any standard of proof or the appropriate standard of proof. The letter concluded with five requests as to action to be taken or confirmation to be given by the Secretary of State.
  • The Secretary of State responded to that letter on 13 January 2006. His response concluded as follows:
  • "The Secretary of State has considered the five demands made at the end of your letter of 28 November 2005 and refuses them all:
    1. The Secretary of State rejects completely the allegations of bias and, accordingly, will not remove the current commissioners of the IMC appointed by the government of the UK.
    2. The Secretary of State rejects completely any evidence of bias and therefore sees no reason to treat the seven IMC Reports as void.
    3. He will continue to place reliance on the seven IMC Reports thus far laid for the reasons previously given.
    4. He intends to rely on any subsequent Reports presented by the IMC for the reasons previously given.
    5. He will not reinstate Sinn Féin's revoked Assembly funding, for the reasons elaborated in detail under 'Issue One' of this letter …."
  • On 18 January 2006 Sinn Féin amended its grounds for judicial review so as to include the Secretary of State as a defendant. As we have already explained, the claim against the IMC was subsequently dismissed and the claim now proceeds against the Secretary of State alone.
  • Forum

  • We turn to consider the various procedural objections to the claim. The first point, an argument of "forum non conveniens", is taken only by Mr Larkin on behalf of the IMC. It is accepted that this court has jurisdiction to entertain the claim against the Secretary of State, but it is submitted that the court should decline jurisdiction as a matter of discretion. Reliance is placed on the decision in Tehrani v Secretary of State for the Home Department [2006] UKHL 47, [2006] 3 WLR 699, on the question of forum in proceedings for judicial review, in particular per Lord Nicholls of Birkenhead at para 25: "A court will decline to exercise jurisdiction if there is available an alternative forum more appropriate for deciding the dispute in question." In the present case, it is submitted, Northern Ireland is plainly the more appropriate forum for litigating, at the suit of a political party with an emphatically Irish focus, issues which arise out of assessments made by an international organisation established within the context of Northern Ireland's politics, based largely on material coming from Northern Ireland, and relating to ongoing paramilitary and other activity in Northern Ireland. Further, it is suggested that the informed observer whose stand-point is important for the test of apparent bias (see below) is one in Northern Ireland, not in England.
  • Sinn Féin has put forward a number of reasons why the claim was brought in London. They include the fact that the IMC's reports are presented to the UK Government in London, are ordered to be printed by the House of Commons in London, are debated in the House of Commons and House of Lords, and are "enforced" (as it is put) by the Secretary of State and the Westminster Parliament in London. Reference is also made to the legislation of the Westminster Parliament giving effect in domestic law to the position of the IMC, and to the role of the UK Government in the appointment of commissioners. A further point is that some meetings of the IMC have been held in London.
  • There are, of course, significant links with London, but it seems to us that the connections of this case with Northern Ireland are far closer and weightier, and we would generally expect a claim of this kind to be brought in the courts of Northern Ireland (as was done in Sinn Féin's claim against the IMC in 2004) rather than in the courts of England and Wales.
  • In the present case, however, we are satisfied that we should not accede to Mr Larkin's argument on forum, for two principal reasons. First, the Secretary of State, who is the sole remaining defendant, has not taken the point. Secondly, the point has been taken by the IMC far too late. It was raised in correspondence in December 2005 but was not thereafter pursued in the IMC's acknowledgement of service or at the hearing before Collins J in June 2006. The final hearing, when the court is already seised of full argument on all the issues in the case, is not the appropriate moment to advance for the first time an argument of this kind.
  • We are also satisfied that we have been provided with sufficient information to enable us to deal fully with the issues raised in this case, although we recognise that a court in Northern Ireland would have a greater familiarity with the historical and political background.
  • Thus, whatever the position might have been if a timely objection had been taken on grounds of forum, the right course now, in the interests of the efficient administration of justice and the wider public interest, is for us to determine the issues in the case rather than to require Sinn Féin to start afresh with a claim in the High Court in Northern Ireland.
  • Justiciability / alternative remedy

  • We consider these points under a single heading because, although conceptually distinct, they were to some extent elided in the submissions of Mr Larkin, who alone advanced them. He appeared to suggest, first, that the IMC's reports are non-justiciable because of the status of the IMC as an international organisation. That, however, misses the point. Although the IMC itself has been found to enjoy immunity from suit, the issues of procedural fairness raised by Sinn Féin in relation to the IMC's reports are all readily justiciable by the courts and can properly be considered by the courts in a challenge to decisions taken by the Secretary of State in reliance on the reports. This is a point to which we will return briefly when introducing the substantive grounds of challenge.
  • Mr Larkin also contended that the issues raised in the litigation are primarily political issues, for which political remedies have at all times been available. In particular, by section 95A of the Northern Ireland Act 1998, directions of the Secretary of State under section 51B of the Act have to be laid before Parliament and approved by resolution of each House. The Parliamentary process is therefore available as a means of challenging such directions. Sinn Féin, not having taken up its seats in the House of Commons, has chosen not to avail itself of this avenue of redress. In the circumstances the court should refuse relief on the basis that there exists an alternative remedy. Further, had these issues been raised in Parliament as they could have been, the grant of relief by the court would have risked trespassing on the Parliamentary process; and the court should exercise similar restraint even though Sinn Féin chose not to raise the issues in Parliament.
  • In our judgment those submissions are misconceived. It is for the court to determine the lawfulness of a decision taken by the Secretary of State in the exercise of his statutory powers. By determining that issue the court does not trespass in any way upon the functions of Parliament. Further, when Parliament considers a direction made by the Secretary of State, its focus is on policy and on the merits of the direction, not on issues of legality and due process of the kind with which the court is concerned. The existence of an affirmative resolution procedure cannot therefore be regarded as an adequate alternative remedy.
  • Delay

  • Ms Rose for the Secretary of State, supported by Mr Larkin for the IMC, submitted that permission should be refused on grounds of delay. CPR 54.5(1) provides that a claim form must be filed promptly and "in any event not later than 3 months after the grounds to make the claim first arose". As regards apparent bias, it is submitted that the grounds to make the claim first arose on the appointment of the four members of the IMC with effect from January 2004. Information about the experience and connections of the members was in the public domain and known to Sinn Féin at that time, and matters discovered later have not materially altered the case. The challenge now made could and should have been taken in the June 2004 claim against the IMC in Northern Ireland, in which the independence and impartiality of the IMC were put in issue. As regards standard of proof, the IMC's approach was set out in its statement of 9 March 2004 and in its Fifth Report, published in May 2005, which was the latest point at which time began to run. As regards non-disclosure, for reasons given later in this judgment the Secretary of State's case is that there has been no reviewable decision at all and the claim is simply misconceived.
  • In an attempt to meet the case on delay, Sinn Féin has expressed in a variety of different ways the decisions or acts of the Secretary of State which it challenges in these proceedings: (i) the Secretary of State's decision to place reliance on the IMC's reports and consequently to refuse Sinn Féin access to public funding or allowances from 29 April 2004 to 1 November 2005; (ii) his refusal on 13 January 2006 to reinstate public funding or allowances for that period notwithstanding the submissions made by Sinn Féin on 28 November 2005; (iii) his decision on 13 January 2006 that he would continue to rely on the IMC's reports notwithstanding those submissions; (iv) his continuing reliance on the IMC's reports, which is said to be a continuing act beginning in April 2004 and ongoing; and (v) his decision on 13 January 2006 not to replace the IMC's commissioners notwithstanding the submissions made by Sinn Féin on 28 November 2005.
  • The complexity of those different formulations was carried over into Mr Singh's written submissions on this issue, though he adopted a lighter touch in his oral submissions. In summary, whilst he took issue with the contention that Sinn Féin should have raised its objections to the membership and procedures of the IMC at an earlier date, his main submission was that the grounds for making the claim first arose when the Secretary of State, having considered Sinn Féin's representations as to the unlawfulness of the IMC's reports, reaffirmed his reliance on those reports by the letter of 13 January 2006. By reference to the principles laid down in R v Hammersmith and Fulham LBC, ex p Burkett [2001] 1 WLR 1593, Mr Singh submitted that that letter was a legally operative decision which was properly the subject of a claim for judicial review, and it was immaterial that challenges might have been made earlier. Alternatively, he sought to analyse the matter in terms of a continuing act or course of conduct which was amenable to judicial review, since the Secretary of State had indicated that he intended to continue to rely on the IMC's reports notwithstanding the allegations of unlawfulness.
  • If, however, the claim was brought out of time, then Mr Singh submitted that there was good reason to extend time, since (i) the reason for the delay was that Sinn Féin was attempting to resolve matters with the IMC and the Secretary of State directly, (ii) the case put forward is one of considerable public importance and is strong on its merits, and (iii) if the case is correct, the situation is one of continuing illegality.
  • In our judgment the complex analysis put forward by Sinn Féin tends to obscure what is in truth a relatively straightforward issue.
  • As a matter of substance, the first decision by the Secretary of State of which complaint is made is his decision of 28 April 2004, in reliance on the IMC's First Report, to make a direction that no financial assistance should be payable to Sinn Féin for a period of 12 months; and the second decision of which complaint is made is his decision of 7 March 2005, in reliance on the IMC's Fourth Report, to make a direction that no financial assistance should be payable to Sinn Féin for a further period of 12 months. Since that date there have been no relevant decisions adverse to Sinn Féin. On the contrary, the Secretary of State decided on 1 November 2005 to restore financial assistance, thereby curtailing the 12 month period specified in his second decision, and the subsequent reports of the IMC have all supported the continuation of such financial assistance or at least have provided no basis for withholding it again.
  • The decisions of 28 April 2004 and 7 March 2005 were legally operative decisions taken in the exercise of statutory powers and having legal consequences for Sinn Féin. We are satisfied that the grounds for challenging them first arose, at the latest, when the decisions were taken. The decisions were notified immediately to Sinn Féin and each of the grounds relied on in the present proceedings could have been put forward at that time. The substance of those grounds is not materially altered by the additional items of evidence that have come to light subsequently. Accordingly, the claim is well out of time in so far as it seeks to challenge the lawfulness of the decisions that financial assistance should not be payable to Sinn Féin.
  • We are not persuaded by any of the ways in which Mr Singh sought to get over that obvious difficulty. The letter of 13 January 2006, in so far as it stood by decisions already taken, is not to be treated as a fresh decision causing time to run anew. Burkett does not assist Mr Singh's argument. In that case it was held that the grounds for a claim to challenge the grant of planning permission first arose on the date when permission was actually granted, not on the earlier date when the local planning authority passed a resolution to grant it: the earlier resolution was revocable and had no legal effect until the actual grant of permission. The present case is altogether different, since the earlier decisions in April 2004 and March 2005 did have legal effect, whereas the 13 January 2006 letter did not. The letter merely affirmed the Secretary of State's rejection of Sinn Féin's criticisms of the earlier decisions and confirmed that he did not intend to take a different approach in the future or to reverse the effect of the earlier decisions. In any event, the letter of 13 January 2006 does not alter the fact that the grounds for challenging the earlier decisions arose long before it, and the letter cannot be used as a device for getting round the failure to bring a timely challenge to the earlier decisions.
  • It is true that there is in one sense an element of continuity in the Secretary of State's approach, in that the letter of 13 January 2006 states that he will continue to rely on past reports of the IMC and intends to rely on future reports. We do not accept, however, that this is properly characterised as a continuing act or course of conduct. The situation is simply one of two past decisions and the possibility of future decisions, all made in reliance on IMC reports. There is no true analogy between that situation and cases where the court has intervened in relation to the application of a continuing policy or the carrying out of continuing operations so as to prevent future unlawful conduct (and even where the court is willing to intervene on that basis, it does not follow that it will allow the past to be re-opened at the same time). Moreover, given the continuing progress evidenced by the IMC's recent reports, there must be a good chance that Secretary of State will not have occasion to make further decisions adverse to Sinn Féin in reliance on future reports of the IMC, so that the issues raised by Sinn Féin in these proceedings may be of no practical significance for the future.
  • As to the past, therefore, the challenge is out of time; and as to the future, it can reasonably be said to be premature. Nonetheless we do see force in the submission that, if any future decisions taken by the Secretary of State in reliance on the IMC's reports would be unlawful for the reasons put forward by Sinn Féin, it would be better for the court to say so now, when it is seized of the issues and has heard full argument on them, rather than to leave the matter over for a separate challenge at some future date. In that way an element of legal uncertainty could be removed.
  • That point takes us to the question of extension of time. In general, the arguments advanced in favour of an extension are in our judgment very weak. The time spent in exchanges with the IMC following the judgment of Weatherup J in the Northern Ireland judicial review proceedings does not justify a failure to raise the issues of apparent bias and procedural unfairness in a prompt legal challenge to the Secretary of State's decisions. Indeed, they were not raised with the Secretary of State at all until the representations in late November 2005. The importance of the issues themselves cuts both ways, as Ms Rose observed, since it also provides a strong reason why the claim should have been brought promptly. The decisions made by the Secretary of State in reliance on the IMC's reports have affected others as well as Sinn Féin and have formed an integral part of the political process in Northern Ireland. Matters have moved on significantly since the adverse funding decisions were made, as is clear from the IMC's own recent reports. We have no doubt that to allow the past decisions to be re-opened in the way sought by Sinn Féin would be seriously detrimental to good administration and indeed would serve to undermine public confidence in the continuing peace process. There are strong reasons why one should look forwards rather than backwards.
  • In that connection, however, we come back to the point that, if there is merit in the grounds advanced by Sinn Féin, there may be a value in the court saying so now in order to provide guidance for the future. In our view that is the only point that might be capable of justifying an extension of time, for the limited purpose we have indicated and without allowing the re-opening of what has been done in the past. Whether such a course is in fact justified must depend on the strength of the substantive grounds of challenge. For that reason we have decided that we need in the particular circumstances of this case to consider the substantive grounds before reaching a final view on the question of an extension of time.
  • Abuse of process

  • The arguments on abuse of process are really an alternative way of expressing the points made on delay. Ms Rose submitted that there is no good reason for permitting a claimant who has sought to challenge the decision of a public body, but has failed to advance arguments that were open to it at the time, to bring a further challenge at a much later date relying on arguments that could and should have been deployed in the original proceedings. It is contrary to the public interest for a public body to be subject to repeated claims for judicial review arising out of the same facts but relying on different grounds. On the facts of the present case, it is said that the issues now put forward against the Secretary of State could and should have been raised in Sinn Féin's claim against the IMC in the High Court of Northern Ireland.
  • We do not dissent from the general principles on which Ms Rose founded her submission, and we did not understand Mr Singh to do so either. His case was not that the court lacks jurisdiction to dismiss judicial review claims on grounds of abuse of process, but that the exercise of the jurisdiction is unwarranted here. His first main argument was that there is a public interest dimension which needs to be taken into account, just as when questions of issue estoppel are raised in the public law context (see R (Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036, [2004] QB 395, at para 79). His second main argument was that most of the claim currently being made could not in fact have been brought in the Northern Ireland judicial review claim, since Sinn Féin had no knowledge of the approach the IMC intended to take to the issue of standard of proof until its discussions with the IMC following Weatherup J's judgment; nor did it know the IMC's stance on disclosure until that time; and much of the evidence on apparent bias was not uncovered until after the present proceedings were issued.
  • The issue of abuse of process does not in our view add materially in this case to the issue of delay. We accept that the public interest is a factor to be taken into account in deciding whether a claim should be dismissed for abuse of process, and we do not think that the issue can be resolved in the circumstances of this case without consideration of the substantive grounds of challenge. If we conclude that there are sufficiently strong reasons to justify an extension of time for the purpose of giving guidance for the future, we do not think that the arguments on abuse should prevail. If, on the other hand, we conclude that permission should be refused on grounds of delay, the arguments on abuse will be of no practical significance.
  • The substantive grounds: introduction

  • For the limited purpose indicated above, we therefore turn to consider Sinn Féin's substantive grounds of challenge.
  • Although the claim for judicial review in its present form is directed only at the Secretary of State, the grounds relate to the lawfulness of the IMC's reports. The way in which the case is put is that if the IMC's reports are vitiated by procedural unfairness, then reliance on them by the Secretary of State amounts to an error of law on his part, in particular by taking a legally irrelevant consideration into account. Ms Rose did not seek to dispute that analysis. In practice, therefore, we can concentrate on whether the IMC's reports are vitiated by procedural unfairness as alleged.
  • We will examine the grounds individually, but we have borne in mind Mr Singh's submission that their cumulative effect also needs to be considered.
  • Ground 1: appearance of bias

    Sinn Féin's case

  • Sinn Féin's first ground of challenge is that the IMC's reports are rendered unlawful by an appearance of bias arising from the membership of the IMC. It should be stressed that the case is one of apparent bias, not actual bias. The test relied on is that laid down by the House of Lords in Porter v Magill [2002] 2 AC 357, per Lord Hope at para 103, namely "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
  • It is submitted that the fair-minded and informed observer must be taken to be aware of the recent political history of Northern Ireland as well as the past and present political affiliations of those involved in the IMC. Where facts are assessed and decisions are made that impact upon particular groups or individuals who are on one side of the political and sectarian divide, such an observer would want assurance that those decisions result from scrupulous and fair analysis of the evidence and are not tainted by past or present political or sectarian rivalries. The absence of bias is of particular importance not only because the IMC is making decisions that have a significant political impact within an already charged environment, but because the IMC does not set out the evidence that leads it to reach its (often highly contentious) conclusions and it is therefore all the more important to ensure that the conclusions are not influenced by factors that would lead the members to adopt a hostile position towards one of the parties or to be overly receptive to the evidence produced by certain sources.
  • It is submitted that, applying that approach to the members of the IMC, the fair-minded and informed observer would conclude that there was a real possibility that one or more of them, whether subconsciously or not, might reach conclusions adverse to Sinn Féin because of their past political activities or employment, their position in the community, their remarks, their friendships or family connections, or their underlying political preconceptions.
  • The main thrust of the challenge is directed to Lord Alderdice, one of the two members of the IMC appointed by the UK Government. The matters relied on are these:
  • (a) Lord Alderdice was leader of the Alliance Party from 1987 to 1998 and is now a Liberal Democrat peer in the House of Lords. His brother, David Alderdice, is a senior member of the Alliance Party; and a close political colleague, David Ford, is the current leader of the Alliance Party. The Alliance Party is a political opponent of Sinn Féin, both historically and currently. During his time as leader, Lord Alderdice was a staunch opponent of Sinn Féin and made hostile statements about it, for example that Sinn Féin was prepared to use violence to further its political agenda and was not genuine in claiming to oppose violence. The Alliance Party continues to criticise Sinn Féin in very strong language. The opposition is not merely of ideological significance but also has political ramifications, since the two parties compete directly for votes and political power. The Alliance Party and its senior members stand to gain politically from anything which adversely affects Sinn Féin's reputation as well as its practical ability to compete in elections or publicise its activities.

    (b) Lord Alderdice himself remained a member of the Alliance Party until after the present proceedings had commenced. His continuing membership of the party emerged only following a direct question put to him by a newspaper reporter in February 2006, and had not been communicated to Sinn Féin despite requests for full disclosure of any possible matters that might indicate apparent bias. When it did emerge, the IMC wrote to Sinn Féin on 24 February 2006 stating:

    "Lord Alderdice had decided that to put the matter beyond peradventure, he has resigned forthwith his formal and inactive membership of the Alliance Party. This is on the basis that there may be a perceived risk of bias should a claim be made to the IMC under Article 6 of the International Agreement, either against the Party or by it. It is for this limited reason that he has decided to resign from the Alliance Party."
    Mr Singh submits that there is no hard and fast distinction between the matters that have to be considered under Article 6 of the International Agreement and those that have to be considered under Article 4, and that the risk of apparent bias arising out of Lord Alderdice's membership of the Alliance Party is no less real in the context of Article 4 than it was implicitly conceded to be in the context of Article 6. Further, Lord Alderdice's resignation does not remove the concerns arising out of his previous membership of the party and the light it casts on his conscious or subconscious predisposition in favour of the party – concerns that are heightened by his previous failure to disclose that membership.

    (c) Another matter discovered since the issue of proceedings is that Lord Alderdice is currently the President of Liberal International, an international political organisation of which the Alliance Party is a member and the Alliance Party's current leader, David Ford, is joint Vice-President. Moreover Lord Alderdice was proposed and supported for the position of President by Mr Ford on behalf of the Alliance Party. It is said that as President of Liberal International he has an ongoing relationship with the Alliance Party. Furthermore, also in membership of Liberal International are the Progressive Democrats, a party in the south of Ireland which is also a political opponent of Sinn Féin and the current leader of which has repeatedly made speeches highly critical of Sinn Féin.

    (d) Lord Alderdice is also a senior member, and was previously Vice President, of another political organisation, The European Liberal Democrat and Reform Party, which describes itself as a political party and of which the Alliance Party and the Liberal Democrats are members.

  • Mr Singh seeks to draw support from a report provided by the Northern Ireland Human Rights Commission in response to an early request from the IMC itself for guidance in respect of the European Convention on Human Rights. At para 23 of its report the Commission stated:
  • "There is also a need to reflect on whether, to the extent that IMC may be said have a quasi-judicial function, it has anything approaching the level of independence required (of a court or tribunal) by Article 6 ECHR. This is particularly at issue given that Lord Alderdice, who was deeply involved in negotiating the GFA, will be one of the individuals sitting in judgment of the conduct of parties that signed or declined to sign it. With no reflection whatsoever on his personal integrity, there may be circumstances in which [it] may be inappropriate for that member of the IMC, or any future member with a party political background or otherwise potentially compromised independence, to join in making certain decisions …."
  • The next member of the IMC against whom an appearance of bias is alleged is Mr John Grieve, who is the other member appointed by the UK Government. The matters relied on in his case are these:
  • (a) He was an officer of the Metropolitan Police for 36 years and rose to lead Scotland Yard's Anti-Terrorist Branch and to become the first Director of Intelligence of the Metropolitan Police. He is closely connected, both personally and professionally, to Sir Ronnie Flanagan, former Chief Constable of the Royal Ulster Constabulary, and Hugh Orde, the current Chief Constable of the Police Service of Northern Ireland ("the PSNI"). It is said that there is a risk that, as a consequence of his institutional connections and his personal connections to senior individuals involved in policing in the United Kingdom and Northern Ireland, he would consciously or unconsciously give greater weight to the evidence provided by the police and intelligence services than he would to other evidence. For example, there is a real possibility that he would have accorded too much weight to the views of the PSNI and its Chief Constable, and correspondingly less weight to the views of others, when considering responsibility for the Northern Bank robbery.

    (b) It is said that Mr Grieve has made remarks on a number of occasions which suggest that he harbours animosity towards Sinn Féin and those he associates with it. Two specifics are cited. The first is a press conference following publication of the IMC's Fourth Report, at which Mr Grieve stated that he "absolutely" did not believe the Provisional IRA's denial of responsibility for the Northern Bank robbery and that "the people who deny it on behalf of the Provisional IRA have got some brass neck". The second is an occasion when Mr Grieve encountered Sinn Féin's solicitors by chance at Heathrow Airport and made remarks that, it is said, suggested strong hostility towards Sinn Féin and its representatives and were highly inappropriate for a member of the IMC.

    (c) A further matter relied on as showing continuing connections between Mr Grieve and senior police officers who have given evidence to the IMC is that he is Chairman of the Board of The John Grieve Centre for Policing and Community Safety. Other members of the Board include Sir Ronnie Flanagan and the Head of the Metropolitan Police's Special Branch. Mr Grieve and Chief Constable Orde are members of the Centre's Journal Board. The Centre organises conferences and courses which are attended by numerous senior police officers and for which it receives payment from the police forces concerned. Delegates from the PSNI have paid to attend conferences at the Centre, and officers from the PSNI have lectured there. Such conferences have been chaired by Mr Grieve, who has also presented sessions and delivered introductory remarks. It is submitted that all this heightens the risk that he would give greater weight to the evidence of police officers with whom he has connections and that he would be unable to make a wholly objective assessment of their credibility.

  • In relation to Mr Joe Brosnan, the member of the IMC appointed by the Government of Ireland, the claim of apparent bias is based on two matters:
  • (a) First, following the publication of the IMC's Fourth Report, he was quoted in British and Irish newspapers as saying that it would be a "resigning matter" for him if it transpired that the connection between Sinn Féin and the Northern Bank robbery turned out to be unfounded. This is contrasted with the IMC's published statements to the effect that it regards its reports as a continuing process and that it will alter the conclusions in its reports if they do not stand up in the light of later information, and will acknowledge this in subsequent reports. It is submitted that, in the light of what Mr Brosnan is reported to have said, a fair-minded and informed observer would conclude that there was a real possibility that he would be less willing to alter the position that the IMC had taken in its Fourth Report on the attribution of the robbery: he had effectively staked his credibility and position as a commissioner on the findings in the report.

    (b) Reliance is also placed on the fact that Mr Brosnan was previously employed in the Irish Department of Justice, Equality and Law Reform, where he served as Secretary General and was closely associated with the Irish police, and he continues to be employed by the Irish Government on an ad hoc basis, for example to sit on inquiries. Thus, although he left the Irish Civil Service in 1999, it is said that his past connection to these various bodies and his continuing personal and professional connections to people within them create a real risk that he would give greater weight to their evidence than he would to evidence provided by other parties.

  • As to the fourth member of the IMC, Mr Richard Kerr, who is a nominee of the US Government, Sinn Féin's case of apparent bias is limited to the fact that he was for many years an intelligence officer in the Central Intelligence Agency, where he served both as Acting Director and as Deputy Director, and in that capacity will have attended numerous meetings with British and Irish intelligence officers and may also have been involved in investigations of the IRA. It is submitted to be quite possible that individuals from intelligence sources giving evidence to the IMC would be well known to Mr Kerr on a personal and professional level and that he would find it more difficult to make an objective assessment of any evidence they presented or to assess their credibility than would someone who did not know them.
  • General considerations

  • In assessing those submissions, we propose to start with a number of general considerations before turning to examine the specific case advanced in relation to each of the four commissioners.
  • It is common ground that the application of the principles of fairness, including the issue of apparent bias, depends upon the particular subject matter and context and must therefore be decided by reference to the facts and circumstances of the individual case. To underline the importance of context, Ms Rose referred inter alia to the judgment of Sedley J in R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, 320-321, and to the decision of the New Zealand Court of Appeal in Lower Hutt City Council v Bank [1974] 1 NZLR 545, 548-9. As to the present context, she drew attention to a number of matters, all of which seem to us to be relevant considerations to which the fair-minded and informed observer would have regard. We will cover the matters she raised, though not in the order in which she raised them.
  • First, the IMC was set up by international agreement, as an independent body, to perform a special role in monitoring, assessing and reporting on paramilitary activity and security normalisation in Northern Ireland. It is not a court or tribunal and does not perform even a "quasi-judicial" function. It takes no decisions, though it does provide an important input into the decision-making processes of the Assembly and the Secretary of State. In those circumstances a link or association that might be sufficient to disqualify a person from membership of a court or tribunal deciding the equivalent issues will not necessarily be sufficient to create an appearance of bias in members of the IMC.
  • Further, it is plainly intended that there should be a mix of perspectives among the membership of the IMC, though we do not accept Ms Rose's submission that there is intended to be a balance of differing political perspectives. More importantly, it is very much in the public interest that the members are persons of high reputation and expertise, so as to enable them to generate confidence in those upon whom they depend as sources of information, to make a proper assessment of the information received, and to command public confidence in their reports. That follows from the very nature of the IMC's functions and is also clear from the terms of the scoping brief which we have quoted in para 20 above. In addition, whilst the scoping brief merely says that an appreciation of the affairs of Northern Ireland "would assist" and that experience of working within or alongside a policing or security environment "would be highly beneficial", it must in practice be very important, if not essential, for the membership of the IMC to include persons with an expert knowledge and understanding of the politics of Northern Ireland and of the policing and security issues of the area. It is difficult to see how otherwise the IMC could operate effectively and command the requisite degree of public confidence. This tells strongly in favour of the appointment of persons such as a former senior politician and a former senior police officer.
  • As a matter of general principle, previous experience in a field can in appropriate circumstances be a qualifying criterion rather than a basis for disqualification on the ground of apparent bias. The position was expressed very clearly by Lord Rodger of Earlsferry in R (Al-Hasan) v Secretary of State for the Home Department [2005] UKHL 13, [2005] 1 WLR 688, a case involving a challenge to a prison disciplinary adjudication on the ground that the deputy governor who conducted the adjudication lacked sufficient independence. At paras 9-11, Lord Rodger stated:
  • "9. As the facts of the present case demonstrate, however, people who are called on to adjudicate will often have substantial experience in the relevant field and will therefore be familiar with the background issues which they may have encountered previously in various roles. Indeed, the individuals concerned will often be particularly suited to adjudicate on the matter precisely because of the experience and wisdom on the topic which they have accumulated in those other roles. In many continental systems, at various stages of their careers judges spend time as legal civil servants in ministries, drafting and advising on legislation. Undoubtedly, when they return to the bench, it is expected that they will use their experience to enrich their work. Today, British judges draw on their previous work, whether as advocates, legal civil servants or academic lawyers. Therefore, they may well have to decide a point which they had argued as counsel, or on which they had written an article - or, even, which they had decided in a previous case. In various political or other contexts, judges may have publicly advocated or welcomed the passing of the legislation which they later have to apply. Judges who have served in some capacity in the Law Commissions may have to interpret legislation which they helped to draft or about which they helped to write a report. The knowledge and expertise developed in these ways can only help, not hinder, their judicial work.
    10. It would be absurd, then, to suggest that in such situations their previous activities precluded the judges from reaching an independent and impartial judgment, when occasion demanded. The authoritative decision in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 is a resounding rejection of any such approach. In any event, if proof were needed, experience confirms that judges are quite capable of acting impartially in such cases …
    11. Nor should it be supposed that only professional judges are capable of the necessary independence of approach. That would be to disregard the realities of life in many organisations today. For example, on a daily basis, head teachers have to apply school rules which they have helped to frame. By virtue of their knowledge of the way the school works and of its problems, they will often be best placed to apply the rules sensitively and appropriately in any given situation. Again, it is not to be assumed that the head teachers' mere involvement in shaping the rules means that a fair-minded observer who knew how schools worked would conclude that there was a real possibility that they would not be able to apply the rules fairly. The same goes for managers in businesses and for officers in the armed forces who are committed to upholding the edifice of lawful orders on which the services rest. Equally, I have no doubt that an informed and fair-minded observer would regard prison governors, or their deputies, as being quite capable of interpreting and applying the prison rules fairly and independently, even though they are obviously committed to upholding them. In all these situations, if things do go wrong, the decision can be judicially reviewed or challenged in an employment tribunal, as the case may be. The present case is an example of that safeguard in action."
  • A similar point was made by Lord Hope of Craighead in giving the judgment of the Privy Council in Nwabueze v General Medical Council [2000] 1 WLR 1760. That case involved an allegation of apparent bias against a lay member of the GMC's Professional Conduct Committee on the ground of her undisclosed connections with the practice where the doctor in question had worked as a trainee, her undisclosed office with a statutory body concerned with nursing, midwifery and health visiting in Wales, and the manner of her questioning of the doctor at the end of his evidence. Lord Hope stated, at 1771C-E:
  • "From this summary it can be seen that Mrs Walker was and is eminently well qualified to sit on the Professional Conduct Committee as one of its lay members. She brought to that membership an extensive knowledge of the health service in Wales, as a result of having worked there for many years as a nurse and midwife and her period of service as director of the South East Wales Institute. It is in the public interest that those who serve as lay members on disciplinary bodies of this kind should be well-informed and have experience of working in the area within which cases are likely to arise on which they may be called upon to adjudicate. It could not possibly be suggested that there was anything in Mrs Walker's general background that would be likely to give rise to the danger or possibility of bias on her part when she was considering a case from Wales."
  • A further general consideration is that the members of the IMC have spelled out very clearly their own recognition of the need to be scrupulously fair and to guard against the risk of bias in their assessment of the information that they receive. In para 5 of their statement of 9 March 2004, quoted at para 22 above, they referred to the "heavy responsibility" placed upon them to act in a way which had regard for the underlying purposes of the Good Friday Agreement and the Joint Declaration of the UK and Irish Governments. The description of their methodology given in their Fifth Report, quoted at para 26 above, evidences the care with which information is examined. The commissioners state in terms that "[w]e question whether there might be any bias either in our own approach or in that of others and take steps to ensure it does not influence our conclusions inappropriately". Whilst in no way decisive, that is a further factor to which the fair-minded and informed observer would have regard.
  • In that respect there is a loose analogy with a point made in National Assembly for Wales v Condron [2006] EWCA Civ 1573. In relation to an allegation of apparent bias against members of a planning committee, the court held at para 53 that some weight could properly be attached to the fact that the members had received training and had agreed to be bound by a code of conduct requiring them inter alia to act fairly and even-handedly by bringing an unbiased, properly directed and independent mind to their decision-making. The approach to decision-making that the IMC has imposed upon itself in recognition of the importance of its role is similarly deserving of some weight when assessing whether there is a real possibility of bias.
  • Lord Alderdice

  • Turning to the specific criticisms of Lord Alderdice, the first point to note is that, although he was formerly leader of the Alliance Party for many years, he stood down from party politics in 1998 to become Speaker of the Assembly, a position which he held until February 2004, when he resigned following his appointment to the IMC. The role of the Speaker, as set out in an extract from the website of the Northern Ireland Assembly which was placed in evidence before us, is to act as Presiding Officer of the Assembly and chairman of various committees. He is selected on a cross-community basis. The document goes on:
  • "The chief characteristics of the office of Speaker are authority and impartiality. …
    Members must be confident of the impartiality of the Speaker and this is achieved through the operation of a number of conventions. On appointment, the Speaker relinquishes all connections with his Party. He does not participate or vote in any debates in the Assembly, he does not become involved in party politics, nor does he comment on Northern Ireland political matters or on issues of Government policy. When speaking on behalf of the Assembly, the Speaker confines himself to matters relating to the operation of the Assembly. Similarly, he will only make statements to the press on factual or procedural matters relating to the Assembly."
  • On the face of it, his role as Speaker for the years prior to his appointment as a member of the IMC made Lord Alderdice a particularly suitable appointee. He had a deep understanding of the political situation yet was, as Ms Rose put it, "about the most neutral political figure in Northern Ireland". Sinn Féin seeks, however, to counter that view in various ways.
  • Much is made of the fact that Lord Alderdice remained a member of the Alliance Party until February 2006, when he resigned his membership in circumstances that we have already described. In our judgment, however, his continued membership of the party is of no real significance. There is evidence before us that, in contrast with the position at Westminster, there is no requirement for a person to give up membership of his party on appointment as Speaker, and that after discussion with others (including the Presiding Officers of the Scottish Parliament and the Welsh Assembly) it was not considered necessary for Lord Alderdice to do so. The requirement to "relinquish all connections with his Party" was understood to require Lord Alderdice to refrain from all involvement in party politics, which he did. His continued membership of the party was a purely formal one, without attendance at meetings or participation in any other way in the affairs of the party.
  • We are satisfied that no adverse inference should be drawn from the failure to disclose to Sinn Féin that Lord Alderdice remained a member of the Alliance Party before the matter became public in February 2006. There had been no specific request for this information. The point is made that correspondence from Sinn Féin's solicitors referred, for example, to the Alliance Party as Lord Alderdice's "former party" and that this was not corrected; but in substance there was nothing to correct, given that Lord Alderdice, whilst remaining "on the books", had relinquished all connections with the party in accordance with the relevant convention as it was understood to apply. Moreover, when the matter did come out in the course of the February 2006 interview, it did so entirely naturally, with Lord Alderdice giving a direct and straightforward answer to the question as soon as it was raised. What happened was fully consistent with Lord Alderdice taking the view that he had nothing to hide.
  • Very little assistance is given to Sinn Féin by the fact that Lord Alderdice thereupon decided to resign his membership of the party because of a perceived risk of bias should a claim be made under Article 6 of the International Agreement. We accept that there is an overlap between Article 4 and Article 6 in terms of substantive issues, but there is also an important difference between them, in that Article 6 is concerned with claims by or against a party, whereas Article 4 is not. We can see that Lord Alderdice's continued membership of the Alliance Party might give rise to a particular problem in the event of an actual claim by or against that party, in the same way as Lord Hoffmann's involvement in Amnesty International was held to disqualify him from sitting as a judge in a case in which Amnesty International was a party (R v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119). It does not follow that Lord Alderdice's continued membership of the Alliance Party should have the same effect in the context of monitoring, assessing and reporting under Article 4. In that context it is merely one of the matters to be taken into consideration, and in our view one that in all the circumstances carries no significant weight.
  • Sinn Féin also contends that, contrary to the stated position, Lord Alderdice did involve himself in party politics and engage more generally in comment on, and involvement in, politics in Northern Ireland in the course of 2003. The contention is based on documents recently disclosed by the Secretary of State, which show that Lord Alderdice had a meeting with the Secretary of State in early July 2003 to discuss the political situation in Northern Ireland; this was followed by correspondence between Lord Alderdice and the Prime Minister; and at least one further meeting was planned. Brief submissions were made about this by Mr Singh at the hearing, and we have also taken into account a supplementary witness statement from Sinn Féin's solicitor which was filed after the hearing and engages in (strictly inadmissible) further argument as well as setting out and exhibiting some further factual material.
  • The context of the meeting and correspondence was that the Assembly, which had been suspended since 2000, had been dissolved in April 2003 and the election had been postponed. Lord Alderdice was pressing that a date be set for the election. He was doing so in part out of a concern about the ability of the Assembly to retain staff, but also out of a concern that the delay was causing a deterioration in the general political situation. Having considered the various points made on behalf of Sinn Féin, we reject the contention that he was involving himself in party politics. In our view he acted consistently with his role as Speaker both in seeking to protect the interests of the Assembly itself and in seeking an early date for an election in the wider public interest. There is nothing in the material to support the view that he was acting in the narrow interests of the Alliance Party or that he was otherwise compromising his position of neutrality as Speaker.
  • We are also wholly unpersuaded that there is any substance in the various other points made about links between Lord Alderdice and the Alliance Party. The fact that his brother is a senior figure in the party, and that a former close colleague is the current leader of the party, does not begin to give rise to an appearance of bias on the part of Lord Alderdice himself. His roles as President of Liberal International, and as a senior member and former Vice President of the European Liberal Democrat and Reform Party, have not been shown to involve him in any way in party politics, and nothing turns on the mere fact that the Alliance Party itself is a member of those organisations or that the leader of the Alliance Party is a Vice-President of Liberal International and proposed and supported Lord Alderdice for the position of President of that organisation.
  • We need say very little about the arguments and evidence before us on the question of competition between the Alliance Party and Sinn Féin. The parties have very different policies. The Alliance Party describes itself as "a non-sectarian political group, dedicated to co-operation between all the people of Northern Ireland". It states that it was formed in 1970 "to give political expression to those who felt that nationalist and unionist political parties did not reflect their views", and that it draws its members from all religious and political perspectives. It supports the constitutional position of Northern Ireland as an integral part of the United Kingdom. By contrast, the objectives in Sinn Féin's constitution include "(a) end British rule in Ireland, (b) achieve territorial unification, political independence and sovereignty, (c) establish a Democratic Socialist Republic …". The two parties would therefore appear to be targeting very different sections of the electorate.
  • Nevertheless, Mr Conor Murphy, the second claimant, states in evidence that they are in direct political competition across the north of Ireland, at every political level. He points out in particular that, under the system of proportional representation that applies to local and Assembly elections, second and subsequent preferences can be critical for the final outcome; and he suggests that the second and subsequent preferences of those whose first vote is for another party (e.g. the SDLP) may determine the outcome as between a Sinn Féin candidate and an Alliance Party candidate. Thus, anything that harms voters' perception of Sinn Féin may have an effect on how far up or down Sinn Féin comes in the list of other preferences and may harm Sinn Féin's electoral position as against the Alliance Party.
  • Although we have thought it right to refer briefly to that material, it is unnecessary for us to reach any conclusion on it. We are prepared simply to assume for present purposes that statements that harmed Sinn Féin could be of some electoral assistance to the Alliance Party, and to take that into account in determining whether Lord Alderdice's membership of the IMC gives rise to a real possibility of bias.
  • Summing up the position in relation to Lord Alderdice, the reasoning in Al-Hasan and Nwabueze seems to us to be highly apposite in this context. His experience and knowledge make him particularly well suited for membership of the IMC. We see no reason why his background or contacts might preclude him from reaching an independent and impartial judgment. His performance of the role of Speaker for a period of some 6 years before his appointment to the IMC provides ample assurance of his ability to put party politics behind him and to approach his task as a member of the IMC with the requisite objectivity. There is no reason to believe that hostile statements he made about Sinn Féin while he was leader of the Alliance Party would colour his attitude to that task. Taking those matters together with the various general considerations to which we have referred, we are satisfied that the fair-minded and informed observer would conclude that there was no real possibility of bias on his part.
  • In reaching that conclusion we have taken into account the concerns expressed by the Northern Ireland Human Rights Commission about Lord Alderdice's position (para 94 above), though they are in no way binding upon us. We note that the concerns were tentative in nature, were based on a mistaken assumption that the IMC might be determining civil rights and obligations within the meaning of article 6 ECHR, and did not go so far as to suggest even then that Lord Alderdice might be unable to act at all as a member of the IMC. In our judgment those concerns can be seen to be groundless when the full facts are known.
  • Mr Grieve

  • The criticisms directed at Mr Grieve have even less substance to them. In so far as they relate to his experience in relation to policy and intelligence matters, and the contacts he has acquired by reason of that experience, they amount to the proposition that the very characteristics that make Mr Grieve particularly well suited to appointment as a member of the IMC ought to be treated as a disqualification for that position. Here, too, it seems to us that the reasoning in Al-Hasan and Nwabueze is highly apposite; and again we see nothing in his background that might preclude him from reaching an independent and impartial judgment. Nor is there anything in the activities of The John Grieve Centre for Policing and Community Safety, or in Mr Grieve's personal role in them or in the contacts he has with other police officers in the context of them, to give rise to any sound basis for concern that he might be unable to adopt a properly balanced approach to the information received by the IMC or to make an objective assessment of credibility where that issue arises.
  • As can be seen from reading the relevant press reports as a whole, the strong remarks made by Mr Grieve at the press conference following the IMC's Fourth Report were simply a reflection of the confidence that he and his fellow commissioners had in the conclusion they had reached with regard to Sinn Féin's involvement in the Northern Bank robbery (a point to which we will return when considering the issue of standard of proof). Perhaps it was unwise for him to express himself as forcefully as he did, but confidence in conclusions already reached and published is very different indeed from a closed mind or bias in reaching those conclusions. In our view his remarks provide no support to Sinn Féin's case.
  • As to the chance encounter at the airport, there is evidence in a letter from the IMC that Mr Grieve's remarks on that occasion were intended to be jocular. We are in no position to go behind that evidence, even if the remarks were in fact taken seriously. In any event we think that very considerable caution needs to be exercised in relation to off-the-cuff remarks made in such an informal context. Mr Singh was in our judgment very sensible not to place this aspect of the case near the forefront of his oral submissions. We do not think that there is any force in it.
  • For those reasons, again considered together with the various general considerations to which we have referred, we are satisfied that in Mr Grieve's case, too, the fair-minded and informed observer would conclude that there was no real possibility of bias on his part.
  • Mr Brosnan and Mr Kerr

  • Very similar considerations apply to the criticisms directed at Mr Brosnan. Once more, his past employment makes him well suited to membership of the IMC and there is nothing in such employment that might preclude him from making an independent and impartial judgment. And in his case, too, the strength of the remarks he made following the IMC's Fourth Report is to be seen as a reflection of his confidence in the IMC's conclusions as to Sinn Féin's involvement in the Northern Bank robbery. He evidently considered the conclusions to be based on such clear and reliable information that there was no realistic prospect of their being undermined by any further information the IMC might receive in the future. Perhaps he, too, was unwise to use such graphic language, but we do not think that the fair-minded and informed observer, considering those remarks as part of the overall circumstances of the case, would conclude in the light of them that there was a real possibility of Mr Brosnan failing to apply an open-minded and objective approach to his assessment of any further information the IMC might receive.
  • Similar considerations also apply to the criticisms directed towards Mr Kerr. We see no reason why his former employment with the Central Intelligence Agency or the contacts he made in that employment might preclude him from making an independent and impartial judgment. Sinn Féin's case against him is without substance.
  • Finally, as Ms Rose observed, there is nothing in the evidence to show that Sinn Féin has made representations either to the Irish Government (which appointed Mr Brosnan) or to the US Government (which nominated Mr Kerr) seeking the removal of Mr Brosnan or Mr Kerr on grounds of apparent bias. Sinn Féin's failure to adopt that course would be surprising if it had genuine concerns about them as members of the IMC.
  • Conclusion on apparent bias

  • Accordingly, we have reached the firm conclusion that there is no merit in Sinn Féin's case of apparent bias.
  • Ground 2: standard of proof

  • There are two, closely related, limbs to Sinn Féin's second ground of challenge: first, that the IMC fails to apply any standard of proof at all; and secondly, that it ought to apply what is described as the "heightened" civil standard.
  • Mr Singh submitted that the concept of "standard of proof" is apposite even in a non-adversarial context where no question of "burden of proof" arises. To the extent that the IMC is engaged in deciding matters of fact, as plainly it is when reaching conclusions e.g. about the involvement of paramilitary organisations and political parties in criminal activities, it has to apply some standard of proof if it is to discharge its functions fairly. There must be some "evidential threshold" (an expression which Mr Singh accepted might be better than "standard of proof") to be met before findings can properly be made.
  • In support of that submission Mr Singh cited the judgment of Munby J at first instance in R v Mental Health Review Tribunal, ex p DJ [2005] EWHC 587, and the judgment of the Court of Appeal in the same case, reported as R v Mental Health Review Tribunal, ex p AN [2006] QB 468. Drawing on authorities such as In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and Secretary of State for the Home Department v Rehman [2003] 1 AC 153, Munby J held that the proper approach for a mental health review tribunal considering whether to order a patient's discharge was that "[i]f there is some specific allegation of past conduct which is being relied upon then the Tribunal must decide as a matter of fact, and applying the ordinary civil standard of proof, whether the allegation has been proved" (para 114), though issues of judgment and evaluation as to the appropriateness of detention were not susceptible to any standard of proof. The Court of Appeal did not disagree with Munby J as regards the application of the civil standard of proof to the fact-finding stage, but held that that standard should also be applied to questions of judgment and evaluation. In the present case, submitted Mr Singh, it is the fact-finding stage that matters – the assembling of the facts on which the IMC's recommendations are based – and there is a similar need to approach that exercise by reference to a standard of proof.
  • As to the application of the "heightened" civil standard, Mr Singh did not take issue with the analysis in R v Mental Health Review Tribunal, ex p AN, where the Court of Appeal held, after an extensive review of the authorities, that there is a single civil standard, of proof on the balance of probabilities, though it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. References to the "heightened" civil standard must be read in that light. Mr Singh submitted that where the IMC considers allegations of criminal conduct which, if proved, may have serious consequences for the persons against whom they are made, it should require strong evidence before finding the allegations proved to the civil standard.
  • The contention that the IMC does not apply any standard of proof, let alone apply one in a way that reflects the seriousness of the factual allegations with which it is dealing, is based on what was said in the course of the exchanges between the IMC and Sinn Féin in mid-2005, as confirmed in a letter of 2 September 2005 from the IMC's solicitors, which stated:
  • "Standard of Proof
    Our client has carefully considered the material which was provided and the oral submissions made. It has concluded that the concepts of burden and standard of proof do not fit with the type of activity in which they are engaged when carrying out its Article 4 function. Factors that have influenced this approach include the following:
    The approach endorsed by the IMC is the one set out in its 5th Report and that any conclusion reached by the IMC is only reached if it can be properly drawn from the material available (see for example para 1.10). The Commissioners further indicate at paragraph 1.12 of the 5th report that 'we will not say anything, or draw any conclusion, unless we have confidence in it, and we will qualify conclusions if we think that is necessary'. Our client has not been persuaded by the submissions that there is any merit or cause for them to modify their approach."
  • We do not accept that the position set out in that letter demonstrates a legal error in the IMC's approach to fact-finding. It is clearly inappropriate to apply to the IMC the procedural framework and terminology of a court of law. The IMC's functions of monitoring, assessing and reporting under Article 4 of the International Agreement are not those of a court or tribunal, or even of a decision-making body (it is the Secretary of State who is the relevant decision-maker). In those circumstances the IMC is justified in refusing to accept the importation of the civil standard of proof into its processes, or the use of the expression "standard of proof" at all.
  • The IMC must nevertheless apply some defined criterion or evidential threshold for the purposes of fact-finding, since the process would otherwise be arbitrary and unfair; and where the facts relate to criminal conduct, the criterion or evidential threshold ought in our view to be a rigorous one. The letter makes clear, however, that the IMC does apply such a criterion, namely one of "confidence". The letter quotes a key passage from the Fifth Report which we have already cited in para 26 above: "we will not say anything, or draw any conclusion, unless we have confidence in it". In our judgment that criterion, if properly applied, is an appropriate one and gives rise to no procedural unfairness on the part of the IMC.
  • Mr Larkin took us to passages in the IMC's reports which, read in isolation, might be taken to suggest that the IMC applies a less clear-cut criterion than one of confidence. In the First Report, for example, the language repeatedly used is that of belief rather than confidence (see the passages quoted at paras 27-28 above). On the other hand, when it comes to the findings of fact in the Fourth Report about the Northern Bank robbery, in relation to which Sinn Féin is particularly critical, the language used is more emphatic. The report states that the information available since the robbery "leads us to conclude firmly that it was planned and undertaken by the PIRA" and that some of Sinn Féin's senior members "were involved in sanctioning [it]" (see the passages quoted at paras 35-36 above). Looking at the reports as a whole, we see no reason to reject the IMC's clear statements that the commissioners will not say anything or draw any conclusion unless they have confidence in it.
  • The adoption of such an approach is supported by the ruling on standard of proof issued on 11 October 2004 by "The Bloody Sunday Inquiry" tribunal, chaired by Lord Saville of Newgate. Para 23 of that ruling reads:
  • "In our view, provided the Tribunal makes clear the degree of confidence or certainty with which it reaches any conclusion as to facts and maters that may imply or suggest criminality of serious misconduct of any individual, provided that there is evidence and reasoning that logically supports the conclusion to the degree of confidence or certainty expressed, and provided of course that those concerned have been given a proper opportunity to deal with allegations made against them, we see in the context of this Inquiry no unfairness to anyone nor any good reason to limit our findings in the manner suggested. Thus, to take an example, we cannot accept that we are precluded in our report from analysing and weighing the evidence and giving our reasons for concluding that in the case of a particular shooting, we are confident that it was deliberate, that there was no objective justification for it, and though we are not certain, that it seems to us more likely than not that there was no subjective justification either. Of course we would have in mind the seriousness of the matter on which we were expressing a view, but that is not because of some rule that we should apply, but rather as a matter of common sense and justice."
  • For reasons of confidentiality the IMC cannot set out the evidence on which its conclusions are based; and the question whether an opportunity has been given to Sinn Féin to deal with allegations made against it is a separate issue considered below. Subject to those qualifications, however, the passage from the tribunal's ruling sets out an approach very similar to that taken by the IMC in relation to its own reports. As we have said, it is in our view an appropriate one. We do not accept that the IMC, given the nature of its functions, is required to adopt a more legalistic test than that adopted for The Bloody Sunday Inquiry.
  • We therefore reject the two limbs of Sinn Féin's second ground of challenge.
  • Ground 3: failure to disclose the case to answer

  • Sinn Féin's third ground of challenge is that, before reaching conclusions adverse to it, in particular as regards involvement in the Northern Bank robbery, the IMC failed to disclose to Sinn Féin the case against it, and that this amounted to procedural unfairness rendering the resulting reports unlawful.
  • Although most cases of procedural unfairness arising out of failure to disclose the case to answer relate to courts or tribunals, the same principles can apply to administrative decision-making (see R v Secretary of State for the Home Department, ex p Fayed [1998] 1 WLR 763) and, more pertinently, to the carrying out of investigatory functions (see In re Pergamon Press Ltd [1971] 1 Ch 388). Mr Singh placed particular weight on a passage in the judgment of Lord Denning MR in Pergamon Press, at 399D-400A, as regards an investigation by Board of Trade inspectors:
  • "It is true, of course, that the inspectors are not a court of law. Their proceedings are not judicial proceedings …. They are not even quasi-judicial; for they decide nothing; they determine nothing. They only investigate and report. They sit in private and are not entitled to admit the public to their meetings ….
    But this should not lead us to minimise the significance of their task. They have to make a report which may have wide repercussions. They may, if they think fit, make findings of fact which are very damaging to those whom they name. They may accuse some; they may condemn others; they may ruin reputations or careers ….
    Seeing that their work and their report may lead to such consequences, I am clearly of the opinion that the inspectors must act fairly …. The inspectors can obtain information in any way they think best, but before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice."
  • It is submitted that in the present case, given the seriousness of the findings of involvement in criminality and also the seriousness of the financial consequences for Sinn Féin, fairness required disclosure of the case that Sinn Féin had to meet, and that more was needed in this context than a mere outline of the charge. Yet Sinn Féin does not know, for example, on what basis the IMC concluded that the Provisional IRA was responsible for the Northern Bank robbery or that it was sanctioned by senior members of Sinn Féin, or why Sinn Féin's denial of any knowledge of, or involvement in, the robbery has not been accepted. Unless the IMC gives some indication of how it has attributed responsibility to Sinn Féin, it is not possible for Sinn Féin to make meaningful representations. Sinn Féin is left able only to make a blanket denial, which is unlikely to be accepted. The IMC is said to have been asked repeatedly in correspondence to make known the case for Sinn Féin to answer, but to have refused to do so.
  • The Secretary of State's response to those submissions focuses on the facts rather than the legal principles. Ms Rose does not dispute that, as a matter of general principle, Pergamon Press applies. She contends, however, that Sinn Féin's case is put forward on a false factual basis. There never has been a refusal by the IMC to disclose to Sinn Féin the case it had to answer. In the first place, and throughout the time prior to publication of the First Report and the Fourth Report, Sinn Féin refused to meet with the IMC at all. When exchanges did take place following the judgment of Weatherup J in the Northern Ireland judicial review claim, at no time did Sinn Féin request the IMC to provide it with the underlying information, and at no time did the IMC refuse a request for disclosure of the case Sinn Féin had to meet. Moreover, at no time did Sinn Féin submit to the Secretary of State that it was being impeded in the presentation of its case, or that the Secretary of State should not rely on the IMC's reports, on grounds of non-disclosure by the IMC to Sinn Féin.
  • An examination of the documents shows that Ms Rose's submissions are well founded.
  • Following receipt of the First Report of the IMC, the Secretary of State wrote to Sinn Féin on 21 April 2004 indicating that he was minded to exercise his powers to withhold financial assistance from Sinn Féin but that he would take account of any representations from Sinn Féin before reaching a financial decision. Sinn Féin's response, in a letter of 26 April 2004, was not to make representations on the substantive issues but to take issue with the very operation of the IMC:
  • "I remind you of our position with respect to the International Monitoring Commission.
    The IMC was established in contravention of the Good Friday Agreement. It is not independent. It is a political tool to serve the current policy of both the British and Irish governments.
    It is a proxy for securocrats and its report has been contrived to facilitate and justify political intervention on the basis of their agenda. We reject its report and we reject any suggestion that it can have a positive role in moving the political process forward.
    Sinn Féin has not breached the Agreement. We have fulfilled our responsibilities and obligations under Agreement and will continue to do so.
    Sinn Féin will not be held responsible for any words or deeds other than our own."
  • On 20 January 2005, before completion of its Fourth Report, the IMC wrote to Sinn Féin noting the comments made by senior members of Sinn Féin about the robbery at the Northern Bank and stating that "[i]n order to ensure that [the commissioners] have the fullest possible range of information available to them when considering this incident, they would be very glad to be able to meet those members, and any person who may be able to help, to discuss the matter". Sinn Féin's response, dated 31 January 2005, denied any knowledge of who was responsible for the robbery and rejected any suggestion that Sinn Féin was involved in criminality. It continued:
  • "We remind you that the IMC is no part of the Good Friday Agreement and, in our view, should have no role in the political process, or in any complaint or sanction procedures against elected representatives.
    We are concerned that the British Government is currently paving the way for a continuation or escalation of sanctions against our party. It is our belief that once again they intend to use an IMC report to attempt to validate such sanctions.
    The powers of sanction assumed by the British Secretary of State are a fundamental breach of the Good Friday Agreement ….
    We will continue therefore to oppose the remit give to the IMC and challenge the powers of sanction assumed by the British Secretary of State.
    We do not believe that any useful purpose would be served by meeting with the IMC at this point in time."
  • When, following receipt of the Fourth Report, the Secretary of State wrote to Sinn Féin to indicate that he was minded to continue the withholding of public funding from Sinn Féin but would take account of any representations received before reaching a final decision, Sinn Féin responded in much the same terms as in April 2004.
  • The approach adopted in those various letters was representative of the attitude of Sinn Féin from the outset of the IMC's work until after the publication of the IMC's Fourth Report. It is clear that Sinn Féin simply refused to engage with the IMC or with the Secretary of State on matters covered in the IMC's reports. There was no suggestion that Sinn Féin was prevented from making effective representations through a lack of knowledge of the case against it. There was a blunt refusal, based on a fundamental objection to the very existence and operation of the IMC, to become involved in the process at all. This accords with the findings made by Weatherup J in February 2005, referred to in para 57 above.
  • Following Weatherup J's judgment, Sinn Féin did engage to some extent with the IMC, but confined itself largely to complaints about the appearance of bias and the failure to apply a standard of proof. It did not attempt to engage with the IMC on the facts, by making representations on the substance of the matters dealt with in the IMC's reports or suggesting that it was precluded from putting forward such representations by a lack of knowledge of the case it had to meet. That was despite attempts by the IMC to get Sinn Féin to engage in that way.
  • For example, in a letter dated 14 June 2005, the IMC's solicitors wrote that "[o]ur client confirms its wishes to hear from your client on issues of substance". A similar point was made in a letter dated 2 September 2005. But it is clear that such offers or requests were not taken up.
  • Sinn Féin did ask for disclosure of certain information, but it steered clear of asking for disclosure of the information underlying findings such as those made by the IMC in respect of the Northern Bank robbery. In a letter of 29 April 2005, under the heading "Disclosure", Sinn Féin's solicitors referred to the fact that the IMC had refused to disclose its list of contributors (i.e. persons from whom information had been received) but had indicated that it would consider releasing a list of the "official" contributors. The letter went on:
  • "Whereas we reserve our client's rights to full disclosure of all evidence which relates to it and/or the IMC's allegations against it, and/or its members, we look forward to receiving that list [of contributors]. We would ask the IMC to ensure that the list is as comprehensive as possible …."
  • The list of contributors was the first specific matter on which disclosure was sought. The same letter referred to the IMC's development of "alternative theories" with regard to the findings made in its reports, and said that the IMC had agreed, subject to legal advice, to forward those alternative theories so that Sinn Féin could consider and test those theories. The letter requested that those details be forwarded by return. That was the second specific matter on which disclosure was sought. Those two matters, together with a third matter concerning a "model for testing bias within the IMC and its findings", were addressed in terms in a letter from IMC's solicitors dated 9 May 2005 and a letter from Sinn Féin's solicitors dated 18 July 2005. They were the only three matters of disclosure raised.
  • Thus, when the IMC declined to release the material sought by Sinn Féin, as it did in a letter of 5 September 2005 on which Sinn Féin relied before us, it was referring only to the three matters on which disclosure was sought. It was not dealing with the question of "full disclosure of all evidence which relates to [Sinn Féin] and/or the IMC's allegations against it, and/or its members", on which Sinn Féin's rights had been reserved in the solicitors' letter of 29 April. That question had not been raised again and there had been no request for such full disclosure.
  • In our judgment it is clear that there was no decision by the IMC on the issue of disclosure beyond the three specific matters to which we have referred (and which are immaterial for present purposes).
  • It is moreover striking that when Sinn Féin wrote its letter before claim to the Secretary of State on 28 November 2005, it did not complain about a failure by the IMC to make disclosure to it. The letter was confined to the issues of apparent bias and standard of proof.
  • Sinn Féin seeks now to rely on various points on non-disclosure that were contained within documents provided to the IMC at various times in support of Sinn Féin's submissions and were enclosed with the letter of 28 November 2005 to the Secretary of State. We do not accept that the making of points indirectly in that way was sufficient to raise such points for decision by the IMC, or amounted to an adequate way of bringing them to the attention of the Secretary of State. In any event it is plain that the IMC did not reach a decision on them and that the Secretary of State, perfectly reasonably, did not understand them to be raised as a distinct ground of challenge to his reliance on the IMC's reports.
  • In the circumstances we take the view that it is not open to Sinn Féin to raise the issue of disclosure as a ground of complaint in these proceedings against the Secretary of State; and that there is in any event no substance to the complaint made. Sinn Féin has yet to engage with the IMC with regard to the information underlying the IMC's conclusions.
  • It follows that any question about the approach that ought to be adopted by the IMC in the event of a request by Sinn Féin for disclosure of the material in question is, as Ms Rose submitted, hypothetical. This is a potentially complex area, given the assurances of confidentiality offered by the IMC and its statutory duties under the International Agreement (as implemented in domestic law) not to do anything which might put at risk the safety or life of any person or which might have a prejudicial effect on any legal proceedings. The precise working out of the general principle in Pergamon Press is best left for consideration by reference to a concrete set of facts if and when the issue does arise in practice.
  • For present purposes, it suffices to conclude that the particular allegation of non-disclosure and resultant procedural unfairness directed against the IMC is factually unfounded and that Sinn Féin's third ground of challenge is therefore without substance.
  • Conclusion

  • We have found against Sinn Féin in relation to each of the substantive grounds of challenge that it seeks to advance. That brings us back to the question of extension of time which we left open at para 83 above. It is now clear that there is no need for the court to intervene for the purpose of correcting a legal error for the future: there is no legal error to correct. In those circumstances we take the view that there is no wider public interest that might justify an extension of time, and that delay ought therefore to be decisive of the matter. Accordingly, we dispose of the case by refusing permission to Sinn Féin to apply for judicial review. It will be evident from our judgment that, had we granted permission, we would have dismissed the substantive claim.

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