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Cite as: [2001] NI 1, [2001] NICA 2

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    CARF3310 19.01.2001

    Judgment: approved by the Court for handing down
    (subject to editorial corrections)





    This is an appeal against an order made by Gillen J on 7 June 2000, whereby he dismissed an application brought by the appellant David Adams for judicial review of decisions of the respondent, the Director of Public Prosecutions for Northern Ireland (the DPP), not to prosecute police officers in respect of matters which occurred at and following the arrest of the appellant on 10 February 1994 or to provide adequate reasons for those decisions.

    The appellant appealed to this court by notice of appeal dated 29 June 2000, basing the appeal on a substantial number of grounds. The respondent sought an extension of time for service and filing of a respondent's notice dated 4 October 2000. At the commencement of the hearing we gave leave to the respondent to rely upon the matters specified in the notice, with the exception of paragraph 18, which related to the intervention of the Northern Ireland Human Rights Commission.

    The Human Rights Commission

    The Commission had been permitted to intervene in the court below by furnishing a written submission to the court and presenting arguments by counsel in support of the appellant's application for judicial review. By the time it came to the hearing of the appeal the decision of the Queen's Bench Division had been given in Re Northern Ireland Human Rights Commission's Application (2000, unreported), whereby it was held that the Commission did not have power to present written or oral submissions to courts, even if invited or permitted to do so. Mr Treacy QC appeared at the opening of the appeal on behalf of the Commission, and asked the court to decline to follow the ruling of the Queen's Bench Division and permit him to lodge a written submission and take part in the argument. We held, however, that the proper vehicle for a challenge by the Commission to the correctness of that ruling was by way of an appeal to this court, which had already been instituted by the lodging of a notice of appeal, and that we could not entertain submissions about its correctness in the present proceedings. We declined accordingly to permit the Commission to take part in the appeal, but did read the written submission which had earlier been lodged on behalf of the Commission. In the course of the presentation of the appellant's case his counsel were themselves able effectively to put forward on his behalf the arguments which the Commission had presented in the court below and which they proposed to advance on appeal before us.

    The Factual Background

    On 10 February 1994 officers of the Royal Ulster Constabulary mounted an operation in Belmont Avenue, Belfast, to foil a terrorist attack on a police officer which they believed from intelligence to be about to take place that morning. In the course of the operation they arrested and detained several suspects, including the appellant, who were subsequently convicted of serious terrorist offences and sentenced to substantial terms of imprisonment.

    In an effort to escape the appellant dived underneath a Transit van in Belmont Avenue. He was seen by police officers, dragged out of his hiding place, searched and handcuffed. A forensic cape was put over him, then when it tore a second one was put on top. He gave a false name when asked for his identity. He was taken by car to Castlereagh Police Office. There he was processed and examined by a police surgeon, when he was found to have a number of injuries. On the doctor's instructions he was taken to the Ulster Hospital, where he was detained for four or five days before being transferred to the Mater Hospital. He remained in hospital for a total of three weeks.

    The appellant's case was that at a number of stages in this whole episode he suffered serious assaults at the hands of police officers, when first pulled out from under the van, when being searched and awaiting transport, in the car en route to Castlereagh and again in Castlereagh. He sustained in the episode a fracture of the left fibula, a punctured right lung, fractures of the ribs, a laceration to the back of the head and injuries to his face and nose.

    The appellant brought proceedings in the High Court against the Chief Constable of the RUC for damages for assault and battery, false imprisonment, breach of duty and misfeasance in public office on the part of a number of police officers. In the course of his evidence in the action he named or identified several officers who had, he claimed, committed specific assaults upon him, specifying in particular Inspector Forsythe, Sergeant Berry and Constable McBrien. These officers all gave evidence at trial in support of the police case that the injuries sustained by the appellant were all attributable to his resisting arrest and having to be subdued and denying the numerous allegations of deliberate assault and ill-treatment made by the appellant.

    The action was heard by Kerr J, who on 18 February 1998 gave a written judgment in which he examined in detail the evidence given by the witnesses called on behalf of each party and the medical evidence put before him. He found a number of the claims made by the appellant impossible to accept and portions of his evidence he found to be "wholly implausible", "simply not believable" and "incredible" and dismissed these aspects of his account as "intrinsically unlikely to be true". He found, on the other hand, that his injuries were "broadly consistent with his account of how they were sustained" and supported by the medical evidence, so that they could not be explained even if the police account were accepted. When he examined the evidence of the several police officers against whom the allegations were made by the appellant, he rejected much of it and in particular dismissed as untrue the account given by Sergeant Berry of kneeling heavily on the appellant's back in order to subdue him. He reached the following conclusion on the cause of the injuries:

    "There are elements of the plaintiff's story which I do not believe as I have made clear in my commentary on his evidence. I have not been persuaded of the accuracy of other parts of his story. I consider that he may well have exaggerated his description of the number of blows that he was struck. I have concluded, however, that the essential core of his version of how he was injured must be accepted … I have therefore concluded that all of the principal injuries suffered by the plaintiff were the result of assaults by police officers and that these were not occasioned or contributed to by resistance on his part."

    The judge awarded the appellant the sum of £30,000, made up of compensatory, aggravated and exemplary damages.

    The RUC carried out an investigation in 1994 into the appellant's complaints against the officers who he alleged had assaulted him. The investigation file was delivered to the Department of the DPP on 29 July 1994 and considered by a professional officer. An interim direction was issued to the Chief Constable of the RUC on 4 August 1994, stating that a final direction would be given after the conclusion of the criminal proceedings against the appellant. A further report was received by the DPP in October 1995 after the completion of the criminal proceedings. The DPP issued a direction of no prosecution.

    Following the delivery of Kerr J's judgment the DPP gave further consideration to the question of bringing prosecutions. The RUC referred the case to the Independent Commission for Police Complaints for Northern Ireland (the ICPC) under Article 8(1) of the Police (Northern Ireland) Order 1987. The ICPC exercised its discretion under Article 8(3) to supervise the investigation carried out by the police of the appellant's complaint against the several officers whom he held responsible for his injuries. The Chief Constable, with the approval of the ICPC, appointed ACC James Orr of Strathclyde Police as the investigating officer.

    On 16 December 1998 the DPP received from the RUC a file relating to ACC Orr's investigation. It contained a substantial report, together with statements of witnesses, transcripts of the evidence given in the appellant's civil case and other documents. The contents of the file are described in detail in paragraphs 17 to 20 of the affidavit sworn on 10 December 1999 by Mr ATG White, then a senior member of the DPP's Department, from which the investigation appears to have been substantial and thorough.

    The ICPC gave a certificate dated 8 December 1998 in the following terms:

    "In the opinion of the Independent Commission for
    Police Complaints for Northern Ireland,
    this investigation has been comprehensive
    and carried out extremely thoroughly.
    The investigation has been conducted to the satisfaction of the Commission."

    The accompanying statement set out the scope of the investigation which had been carried out:

    "On 6 March 1998, this matter was referred to the Independent Commission for Police Complaints under Article 8(1) of the Police (Northern Ireland) Order 1987. The Commission undertook supervision of the investigation and requested that an investigating officer from outside the RUC be appointed. The Assistant Chief Constable (Crime), Strathclyde Police was nominated, and, after due consideration the Commission approved his appointment.
    The supervising member had close and constant contact with the investigating officer and his team throughout the investigation. The member was present when David Adams was interviewed in the presence of his solicitor at HMP Maze on 1 and 2 April 1998, and also when an attempt was made by the investigating officer to interview two persons arrested at the same location as David Adams, also at HMP Maze, on 28 October 1998. These two persons declined to co-operate without their solicitor present. Their solicitor, in turn, was not prepared to be present pending resolution of an ongoing claim he had lodged for costs. Two other persons arrested at the same time, in a different location but in a related incident, who have since been released from prison, also declined to co-operate on the same basis. The supervising member attended many police interviews, including all those of officers against whom allegations had been made.
    The investigation was comprehensive. It included:

    The investigation report comprised copies of all statements obtained (385), copies of all other relevant documentation (120), transcripts of the taped interviews, of police officers conducted under caution, copies of police notebook entries, maps, photographs, scene logs, radio transmission logs, forensic reports, medical reports, analyses of all evidence gathered. It was received by the supervising member on 16 November 1998."

    In his covering letter the deputy chairman of the ICPC said:

    "In addition to my view of the quality of the investigation which is covered formally in the Statement, I would like to add that I consider this to have been the most thorough and comprehensive investigation that I have been involved in since the Commission came into being in 1988."

    He also referred to the help and co-operation which was afforded by members of the RUC at all levels.

    Mr White gave further consideration to the evidence and took steps to attempt to have the appellant and the persons accused with him interviewed, so that statements could be taken from them. He sent instructions to senior counsel to consider the matter and consult with whatever witnesses he considered necessary, then advise the DPP whether there was a reasonable prospect of convicting any police officer of assault on the appellant or any other criminal offence arising from the matters reported to the DPP. Following consultations counsel gave his advice in writing to the DPP. Mr White then reviewed the case once more in the light of that advice and discussion with the DPP and concluded that "there was insufficient evidence to afford a reasonable prospect of obtaining a conviction of any police officer involved in the events in question for any criminal offence." The DPP accordingly on 6 August 1999 issued to the Chief Constable of the RUC a direction of no prosecution.

    By letter to the DPP dated 27 August 1999 the appellant's solicitors expressed surprise at his decision and asked for the provision of his reasons and the publication of the investigating officer's report. In his reply dated 7 September 1999 Mr White on behalf of the DPP set out the steps which had been taken to investigate the offences and determine whether any person should be prosecuted. He pointed out that police reports are the property not of the DPP but of the RUC and suggested that any request for copies of the report or documents contained in it should be made to the Chief Constable. In relation to the judgment of Kerr J he stated as follows:

    "Firstly, while I note your comments on the legal standard of proof in that case, and on the actual findings by the judge, the standard of proof in a criminal case is the rigorous standard of proof beyond reasonable doubt. Secondly, the defendant in the civil case was the Chief Constable, within the context of vicarious liability, and not individual police officers, as it would be in a criminal case.
    Thirdly, and most importantly, the judgment by Mr Justice Kerr was delivered on the basis of the evidence before him. The decision reached by the Director was on the basis of all the facts and information reported by ACC Orr. It was not ACC Orr's function simply to pass on to the Director the evidence in the civil case, nor did he do so. It was his function to conduct a comprehensive investigation into all the facts and circumstances, which, as I have stated, he did to the satisfaction of the ICPC. ACC Orr's investigation produced a substantial amount of additional evidence, including forensic medical evidence, which was not available to Mr Justice Kerr."

    The appellant commenced proceedings for judicial review, whereby he sought certiorari of the decision of 6 August 1999 not to prosecute any officers and its reiteration in Mr White's letter of 7 September 1999 (which the appellant has classed as a second decision), together with a declaration that these decisions were unlawful and an order of mandamus directed to the DPP directing him to make a determination in the matter in accordance with correct principles of law and practice and taking into account all relevant matters.

    The Director of Public Prosecutions

    The office of DPP was constituted by the Prosecution of Offences (Northern Ireland) Order 1972. His functions are set out in Article 5(1) 0f the Order. By Article 5(1)(a) he is to consider, or cause to be considered, with a view to his initiating or continuing in Northern Ireland any criminal proceedings any facts or information brought to his notice, whether by the Chief Constable of the RUC or by the Attorney General or by any other authority or person. By Article 5(1)(c) the DPP is, where he thinks it proper, to initiate, undertake and carry on on behalf of the Crown proceedings for indictable offences and some summary offences.

    In paragraph 5 of his affidavit sworn on 10 December 1999 Mr White set out the criterion which the DPP applies to the initiation of prosecutions:

    "5. Prosecutions are initiated or continued by the Director where he is satisfied that the evidence which can be adduced in court is sufficient to provide a reasonable prospect of conviction, and, prosecution is required in the public interest. A reasonable prospect of conviction exists if, in relation to an identifiable individual, there is credible evidence which the prosecution can adduce before a court upon which evidence an impartial jury (or other tribunal), properly directed in accordance with the law, may reasonably be expected to find proved beyond reasonable doubt the commission of a criminal offence by the individual who is prosecuted."

    Much of the case concerned the issue whether the DPP should have given reasons for his decision not to prosecute any of the police officers. The DPP's policy relating to the giving of reasons is set out in paragraphs 33 to 37 of Mr White's affidavit:

    "33. With regard to the matter of providing reasons for their decision, it has been the general practice of successive Directors of Public Prosecutions for Northern Ireland to refrain from giving reasons for decisions not to institute or continue with criminal proceedings other than in the most general terms. This general practice has been applied in considering whether reasons should be given voluntarily, or on request. It has also been applied whether any request for reasons came from the victim, the defendant, or a third party.
    34. This general practice is based upon the following main considerations:-
    (i) Firstly, if detailed reasons are given in one or more cases, they may require to be given in all. Otherwise, wrong conclusions may well be drawn in relation to those cases where reasons are refused, resulting either in unjust implications regarding the guilt of individuals or suspicions of malpractice or both.
    (ii) Secondly, if reasons are given in all cases and if they consist of something more than generalities, unjust consequences are even more obvious and likely. While in a minority of cases the reasons could result in no damage to a reputation or other injustice to an individual, in the majority, such a result would be difficult or impossible to avoid.
    (iii) Thirdly, the reason for no prosecution is often unrelated to any assessment of the issue of guilt or innocence. It may consist of the unavailability of a particular proof, perhaps purely technical but nevertheless essential, to establish the case. In other cases, it may be the sudden death or unavailability of an essential witness or it may arise out of intimidation. There is a risk that to indicate that such a factor was the sole reason for not prosecuting could amount to conviction without trial in the public estimation and deprive the individual concerned of the protection afforded by the impartial and careful analytical examination in open court of the case against him which the judicial system affords.
    (iv) Fourthly, in other cases, the publication of the particular reasons for not prosecuting could cause unnecessary pain and damage to persons other than the suspect as, for example, where the decision is determined by an assessment of the credibility or mental condition of the victim or other witnesses.
    (v) Fifthly, there is a further and substantial category of cases in which decisions not to prosecute are based on the Director's assessment of the public interest. The Director is the guardian of the public interest in this sphere. Decisions made on an assessment of the public interest may include cases where the sole reason for non-prosecution was the age or mental or physical health of the suspect. In other cases, there may be considerations of national security or threat to the safety of individuals. In cases of this nature, the publication of reasons would not be appropriate, and could result in unjust implications being reached regarding the guilt of individuals or lead to the publication of information held in confidence or jeopardise the safety of individuals or threaten national security.
    35. In adopting and maintaining the general practice outlined in the foregoing paragraphs, the Director is mindful that Parliament has not seen fit to impose on him any statutory obligation to provide reasons in any particular class of case or generally. The Director believes further that when the question of the provision of reasons is considered in its correct legal context his general practice accords with modern public law principles.
    36. The general practice of successive Directors, described in paragraphs 33 and 34 above, has evolved during a period of some years. It has been the subject of periodic consideration, review and legal advice and has sought to take into account material developments in the law. Further, it has been reconsidered periodically in the light of judicial review challenges. It continues to be an evolving practice.
    37. The present Director has consistently recognised that the propriety of applying the general practice, described in paragraph 33 above, must be examined and reviewed in every case where a request for the provision of detailed reasons is made. The Director accepts further that where such requests are received he must consider the applicability of the considerations specified in paragraph 34 above, together with any other considerations which seem to him material, to the particular facts and circumstances of the case in question and assess the weight to be accorded to these considerations."

    The DPP's grounds for declining to provide reasons in the present case were set out in paragraphs 41 and 42 of Mr White's affidavit:

    "41. I considered that to provide the detailed exposition of the reasoning sought by the Applicant's solicitors would, of necessity, involve a detailed analysis of, and commentary upon, the information and evidence upon which the decision was based. I was of the opinion that, in the circumstances of this case, to conduct a detailed exercise of this nature would have some of the undesirable consequences outlined at paragraph 34 above.
    42. In particular, I was of the opinion:-
    (i) that to provide a detailed analysis and commentary in this case would make it difficult or impossible to avoid providing detailed reasons in any other case where the decision was taken on evidential grounds;
    (ii) that to provide a detailed analysis and commentary in this case would impose a considerable logistical burden. In this regard, I would refer to the number of witness statements and other documents contained in the police investigation file. In addition, a total of eight officers were interviewed under caution about a variety of allegations, and a detailed exposition of the reasoning behind the decision might require to address each allegation against each officer;
    (iii) that, if the Department is obliged to supply detailed reasons in every case upon request, it will impose an impossible logistical burden;
    (iv) that to promulgate a detailed analysis of, and commentary upon, the evidence against the police officers who were potential defendants in this case could result in damage to their reputations or other injustice, such as adverse imputations against them, in a situation where they would be deprived of the protection afforded by an impartial and careful analytical examination in open court of the case against them, which the judicial system affords;
    (v) that to promulgate a detailed analysis of, and commentary upon, the evidence or accounts of witnesses involved in the case could result in damage to their reputations or other adverse imputations against them, as this would involve assessments of the reliability and credibility of such witnesses and an evaluation of the reliability, consistency and credibility of their evidence;
    (vi) that to provide detailed reasons in the terms and to the extent contemplated above could prompt a debate and/or further enquiries, possibly in the public domain, which could have one or more of the undesirable consequences described in the foregoing sub-paragraphs."

    The appellant's statement set out multifarious grounds on which his claim to relief was based, and the learned judge dealt with them all thoroughly in a comprehensive judgment. When it came to the appeal the arguments admirably presented on his behalf by Mr Harvey QC and Mr Macdonald QC were focused on a narrower range of issues, and we do not think it profitable to rehearse the findings of the judge on issues which are no longer in contention.

    It was not in dispute between the parties that the court does have power in appropriate cases to review the decisions of the DPP, though the power is one to be sparingly exercised: see, eg, R v Director of Public Prosecutions, ex parte C [1995] 1 Cr App R 136. In that case, which concerned a decision of the DPP not to prosecute a husband whose wife had complained of repeated acts of buggery, Kennedy LJ said at page 141:

    " … in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the Director of Public Prosecutions acting through the Crown Prosecution Service arrived at the decision not to prosecute:
    1. because of some unlawful policy (such as the hypothetical decision in Blackburn not to prosecute where the value of goods stolen was below £100); or
    2. because the Director of Public Prosecutions failed to act in accordance with her own settled policy as set out in the Code; or
    3. because the decision was perverse. It was a decision at which no reasonable prosecutor could have arrived."

    To these grounds must be added those of improper motive and bad faith. The appellant's counsel did not suggest that there was any improper motive on the DPP's part, but they did advance the proposition that the introduction of new evidence from an undercover police officer whose existence had not been revealed at the time of the civil action gave rise to a suspicion of bad faith.

    The Provision of Reasons

    The main thrust of the arguments for the appellant was directed more towards the DPP's failure to provide reasons for his decision than the lawfulness of the decision itself, though counsel did not abandon their submission that the decision should be set aside. The essence of the arguments was as follows:

    1. The DPP is subject to a duty to observe the requirements of procedural fairness in reaching his decisions on whether to prosecute.

    2. That duty gives rise to the need to provide reasons in cases where the obligation is triggered by certain factors.

    3. The decision not to prosecute is so aberrant that it calls for an explanation. Fairness requires that reasons be furnished, so that the appellant can see whether the decision may be the subject of challenge.

    4. In the absence of reasons the decision is irrational and it cannot be said that it was taken on lawful grounds.

    In addition to these grounds the appellant's counsel relied on arguments derived from international standards and from the application of the European Convention on Human Rights and the Human Rights Act 1998, which we shall discuss separately in a later part of this judgment.

    There is clearly nothing in the legislation under which the post of DPP was created which imposes an express or implied statutory duty upon him to give reasons for his decisions. Nor does the common law impose a general duty to give reasons upon a person entrusted by statute with the power of making a decision: R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 at 564, per Lord Mustill. But where administrative powers have been conferred by statute to make decisions affecting individuals there is a presumption that they will be exercised in a manner which is fair in all the circumstances: ibid. The manner in which this is to be done has come to be known by the phrase "procedural fairness" and the content of that duty was set out in the well known series of propositions enunciated by Lord Mustill in Ex parte Doody at pages 564-5. In R v Ministry of Defence, ex parte Murray [1998] COD 134 at 136-7 Lord Bingham CJ set out a convenient summary of the principles which have been accepted by the courts in a series of decisions since Ex parte Doody:

    "(a) 'The law does not at present recognise a general duty to give reasons' (Doody at 564E).
    (b) 'When a statute has conferred on any body the power to make decisions affecting individuals, the court will not only require the procedure prescribed by statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural standards as will ensure the attainment of fairness' (Cunningham, per Donaldson LJ at 318, quoting Lloyd v McMahon [1987] 1 AC 625 at 702-703 and Doody at 564F).
    (c) In the absence of a requirement to give reasons, the person seeking to argue that reasons should have been given must show that the procedure adopted of not giving reasons is unfair (Doody at 561A).
    (d) There is 'a perceptible trend towards an insistence on greater openness … or transparency in the making of administrative decisions' (Doody at 561E).
    (e) In deciding whether fairness requires a tribunal to give reasons, regard will be had not only to the first instance hearing but also to the availability and the nature of any appellate remedy or remedy by way of judicial review:
    (i) the absence of any right of appeal may be a factor in deciding that reasons should be given (Cunningham at 322j); and
    (ii) if it is 'important that there should be an effective means of detecting the kind of error [by way of judicial review] which would entitle the court to intervene' then the reasoning may have to be disclosed (Doody at 565H and also Cunningham at 323a).
    (f) The fact that a tribunal is carrying out a judicial function is a consideration in favour of a requirement to give reasons (Cunningham at 323a) and particularly where personal liberty is concerned (Institute of Dental Surgery at 263A).
    (g) If the giving of a decision without reasons 'is insufficient to achieve justice' then reasons should be required (Cunningham at 323a) as also 'where the decision appears aberrant' (Institute of Dental Surgery at 263a, cited with approval in R v Mayor, Commonalty and Citizens of the City of London ex p. Matson (1996) 8 Admin LR 49 at 62).
    (h) In favour of giving reasons are the following factors: 'the giving of reasons may among other things concentrate the decision-maker's mind on the right questions; demonstrate to the recipient that this is so; show the issues have been conscientiously addressed and how the result has been reached; or alternatively alert the recipient to a justiciable flaw in the process' (Institute of Dental Surgery at 256H, cited with approval in ex p Matson at 71).
    (i) In favour of not requiring reasons are the following factors: 'it may place an undue burden on decision-makers; demand an appearance of unanimity where there is diversity; call for articulation of sometimes inexpressible value judgments; and offer an invitation to the captious to comb the reasons for previously unsuspected grounds of challenge' (Institute of Dental Surgery at 257A).
    (j) Although fairness may favour a requirement for reasons, there may be considerations of public interest which would outweigh the advantages of requiring reasons (Cunningham at 323b).
    (k) The giving of reasons will not be required if the procedures of the particular decision-maker would be frustrated by a requirement to give reasons, even short reasons (Cunningham at 323b)."

    Mr Harvey placed particular reliance on the decision of the Divisional court in R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 All ER 651. Sedley J at page 667 expressed the view that –

    "in the present state of the law there are two classes of case now emerging: those cases, such as Doody's case, where the nature of the process itself calls in fairness for reasons to be given; and those, such as Cunningham's case, where (in the majority view) it is something peculiar to the decision which in fairness calls for reasons to be given."

    Later in the judgment at page 670c Sedley J termed that peculiar matter "some trigger factor", a concept which formed the subject of much debate in the present appeal. One prominent example of such trigger factors was that which formed the centre of the appellant's argument, that the decision appears aberrant, so that the person affected cannot know without reasons being furnished whether the aberration is in the legal sense real (and so challengeable) or apparent.

    The judge in the present case accepted the appellant's argument that decisions of the DPP fall into the class of cases in which the presence of a trigger factor may give rise to an obligation in law on his part to furnish reasons for a decision not to prosecute. Having considered in detail the matters put forward as constituting such trigger factors, and in particular the submission that the decision was so inexplicable as to be aberrant, he concluded that the factors relied on did not, individually or cumulatively, constitute a trigger requiring reasons to be furnished to the appellant beyond those already given in general terms by the DPP. He held at page 37 of his judgment:

    "Parliament has vested in the Director the discretion to decide if the evidence is sufficiently strong in each case to merit such a prosecution. I am not persuaded that the Director in this instance, having taken all the steps and having obtained the advice referred to in the affidavits, has acted in such an aberrant, inexplicable or irrational manner that the case cries out for reasons to be furnished as to why he has so acted other than those furnished by him in very general terms. This is particularly so where he has acted after having had the consideration of the case by an independent police officer, an independent statutory body and an independent senior counsel."

    Mr Smith QC, who appeared with Mr McCloskey QC for the respondent, sought to uphold the correctness of the judge's decision on this point. He went further, however, and submitted that the judge should have accepted the argument advanced on behalf of the DPP in the court below that the DPP's position in deciding on whether to institute a prosecution is such that he is not subject to the rules of procedural fairness at all. This contention formed the subject of the respondent's notice to which we have referred.

    The issue has been considered in two recent cases in the Queen's Bench Division in England, R v Director of Public Prosecutions, ex parte Treadaway (1997) The Times, 31 October and R v Director of Public Prosecutions, ex parte Manning and another (2000, unreported). In both of these cases the actual decision turned on another point, but the court in each case discussed the position of the DPP and whether he was required in law to give reasons.

    In Ex parte Treadaway the applicant sought judicial review of the DPP's decision not to prosecute a number of police officers in the West Midlands Serious Crime Squad. He had been awarded damages against the Chief Constable of the West Midlands in a civil action for assault committed on him by police officers. The DPP's decision was made on the ground that there was insufficient evidence to justify a prosecution of the officers, because there was no realistic prospect of any officer being convicted. The court reached the conclusion that the DPP's reasoning in reaching her decision was flawed, leading to breaches of the evidential test in the Code for Crown Prosecutors. Counsel for the applicant contended in addition that a duty to give reasons arose in the instant case, which he claimed "cried out" for reasons to be given, on the ground that a trigger factor operated, viz that there had been a finding by a public body that a crime had been committed. The court did not have to come to a finding on this issue, since it decided in favour of the applicant on the other grounds to which we have alluded. In the course of giving the judgment of the court, however, Rose LJ stated:

    "Whether or not reasons ought to have been given in this case does not arise for determination if the primary challenge based on breaches of the Code succeeds. For present purposes it suffices to say that the authorities on which Mr Owen relies are in our judgment, plainly distinguishable. They all relate to cases where the body which is required to give reasons has an adjudicating function in relation to the person seeking reasons and therefore must act fairly to him so that, according to the circumstances, reasons may be necessary. The role of the DPP, however, is not an adjudicating role between two parties. Her function is to decide, in the public interest, whether a prosecution should be brought. And, as all the authorities make plain, the nature of the decision making process is crucial when deciding whether fairness requires the giving of reasons. As Mr Burnett for the DPP pointed out, a duty to give reasons arises from a duty to act fairly. If public confidence in the criminal justice system is to be maintained, a decision by the Director not to prosecute can properly be the subject of scrutiny by Judicial Review. But it does not follow that reasons for such a decision must be given, even in the limited class of case for which Mr Owen so contends."

    In Ex parte Manning the applicants were the sisters of a man who had died in police custody. The pathological evidence indicated that his death fell into the category of those which occur as a result of respiratory impairment/restriction during restraint leading to asphyxia. At the inquest into the death of the deceased the coroner's jury returned a unanimous verdict of unlawful killing. The applicants sought judicial review of the DPP's decision not to prosecute any officer for manslaughter. The court concluded that the DPP had failed to address and resolve several points which it was necessary to determine and so failed to take into account relevant matters. The member of the DPP's staff who dealt with the matter also, in the opinion of the court, applied the wrong test to the facts when reaching a decision. The court accordingly quashed the decision not to prosecute.

    In this case also the issue was argued whether the DPP is under any duty to give reasons for decisions not to prosecute. Counsel for the applicant contended that trigger factors operated, in particular the occurrence of a death in custody and an adverse verdict of a coroner's jury. He also relied on Article 2 of the European Convention on Human Rights, which deals with the fundamental right to life, and the need to provide an effective remedy. In the course of giving the judgment of the court Lord Bingham CJ stated at paragraph 33:

    "33. It is not contended that the Director is subject to an obligation to give reasons in every case in which he decides not to prosecute. Even in the small and very narrowly defined class of cases which meet Mr Blake's conditions set out above, we do not understand domestic law or the jurisprudence of the European Court of Human Rights to impose an absolute and unqualified obligation to give reasons for a decision not to prosecute. But the right to life is the most fundamental of all human rights. It is put at the forefront of the Convention. The power to derogate from it is very limited. The death of a person in the custody of the state must always arouse concern, as recognised by section 8(1)(c), (3)(b) and (6) of the Coroners' Act 1988, and if the death resulted from violence inflicted by agents of the State that concern must be profound. The holding of an inquest in public by an independent judicial official, the coroner, in which interested parties are able to participate must in our view be regarded as a full and effective inquiry (see McCann v United Kingdom [1966] 21 EHRR 97, paragraphs 159 to 164). Where such an inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who, although not named in the verdict, is clearly identified, who is living and whose whereabouts are known, the ordinary expectation would naturally be that a prosecution would follow. In the absence of compelling grounds for not giving reasons, we would expect the Director to give reasons in such a case: to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given, to vindicate the Director's decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet the European Court's expectation that if a prosecution is not to follow a plausible explanation will be given. We would be very surprised if such a general practice were not welcome to Members of Parliament whose constituents have died in such circumstances. We readily accept that such reasons would have to be drawn with care and skill so as to respect third party and public interests and avoid undue prejudice to those who would have no opportunity to defend themselves. We also accept that time and skill would be needed to prepare a summary which was reasonably brief but did not distort the true basis of the decision. But the number of cases which meet Mr Blake's conditions is very small (we were told that since 1981, including deaths in police custody, there have been seven such cases), and the time and expense involved could scarcely be greater than that involved in resisting an application for judicial review. In any event it would seem to be wrong in principle to require the citizen to make a complaint of unlawfulness against the Director in order to obtain a response which good administrative practice would in the ordinary course require."

    In our opinion the reasoning of the court in the passage which we have quoted from the judgment in Ex parte Treadaway is convincing. We observe that similar reasoning is to be found in a judgment of the Irish Supreme Court in H v Director of Public Prosecutions [1994] IR 589 (see the judgment of O'Flaherty J at page 602). We do not understand the court in Ex parte Manning to lay down any different rule. Ex parte Treadaway was cited to the court and no criticism of the remarks of Rose LJ is to be found in the Lord Chief Justice's judgment. It seems to us that in referring to expectations rather than obligations he was setting out what he regarded as best practice rather than the duty to which the DPP is subject under the common law. In the present case the learned judge described the position of the DPP in apposite terms when he said at page 27 of his judgment:

    "The function of the DPP is a complex one. It is not that of an adjudicator between two parties and to that extent alone it is immediately distinguishable from cases such as those of Doody, Higher Education, Murray and Cunningham. Moreover the DPP has to consider and weigh a number of disparate and at times even competing interests eg. the general public interest at any particular time, the interest of the putative accused, the victim, the supplier of information such as an informant, the various disinterested and interested witnesses. It is a complex and almost unique function. I consider that Parliament has invested him with the discretion to weigh up those disparate and often competing interests and then to make a decision."

    We consider that these factors lead to the conclusion for which the respondent's counsel argued, that the DPP is not subject to the rules known as procedural fairness, because he is not adjudicating in the same way as an administrator. We cannot agree with the judge's conclusion that the DPP is obliged to give reasons in a limited class of cases in which a "trigger factor" operates. We therefore hold that he is not under an obligation to give reasons in any case, unless he chooses to do so, as he has done in some instances cited to us.

    This ruling is sufficient to dispose of the issue whether the DPP is bound at common law to give reasons for his decision. We should add, however, that we agree with the learned judge's conclusion that if the DPP is obliged in some cases to give reasons, none of the facts relied upon by the appellant is sufficient to trigger that obligation. His reasoning, set out in detail at pages 33 to 37 of his judgment, may be summarised as follows:

    (a) Victims of assaults committed by police officers do not, without more, have a more compelling case for the receipt of reasons than victims of many other offences which properly excite the indignation of the public.

    (b) The fact that servants of the State were involved may be an important matter, but is not in itself sufficient to constitute a trigger.

    (c) The investigation was carried out with care by an independent investigator, under the supervision of the ICPC.

    (d) The DPP's decision was not so inexplicable and aberrant that intelligible reasons must be given to explain it. There was other information before the DPP which Kerr J did not have. The standard of proof is higher in a criminal prosecution than in a civil action. A case has to be made out against each individual officer if he is to be charged with an offence, again unlike the proof required in the civil claim for damages against the Chief Constable.

    We find ourselves in agreement with the judge's reasoning and would have reached the same conclusion if we had held that the DPP had any obligation at common law to give reasons in any circumstances.

    Before we turn to consider the impact of the European Convention on Human Rights, we can dispose shortly of a number of other issues comprised in the appeal. Not all of them were the subject of any detailed argument by the appellant's counsel, but in so far as they were contained in the notice of appeal and the appellant's skeleton argument, we think it right to advert to them. The judge dealt with all of them in his judgment, and we can shorten our discussion of them by stating that we are in agreement with his reasoning and conclusion on each issue. The issues are the following:

    1. The DPP did not act in breach of any duty of fairness in failing to consult the appellant before reaching his decision not to prosecute the police officers. One of the matters with which the DPP should concern himself is the interests of victims, but there is no general duty to consult a victim: see R v Director of Public Prosecutions, ex parte C (2000, unreported).

    2. The DPP was not in breach of any duty of fairness in declining to furnish to the appellant a copy of ACC Orr's report. In the first place, it was the property of the Chief Constable, not the DPP. Secondly, for reasons similar to those expressed by the House of Lords in Taylor v Serious Fraud Office [1998] 4 All ER 801 (discussed in detail at pages 38 to 40 of the judge's written judgment in the present case) we consider that the public interest in keeping such investigation files confidential outweighs the wish of the appellant to inspect the report in order to ascertain whether it might contain material helpful to his case.

    3. We do not accept that bad faith or improper motive on the part of the DPP could be inferred from the fact that he had before him when deciding on prosecution the evidence of an undercover police officer, who had not given evidence in the civil action and whose statement was not disclosed to the appellant. There has been independent scrutiny of the evidence of this witness by senior counsel, who consulted with him, which in our view is sufficient to dispel any doubts about the genuineness of his testimony which might be said to arise from his absence from the earlier proceedings.

    4. We do not find anything irrational or aberrant in the policy which the DPP has adopted in relation to the giving of reasons, which is set out in the portions of Mr White's affidavit which we have quoted.

    5. Subject to the question of paying regard to international standards, which we shall discuss separately later, we are of opinion that the DPP applied his policy properly and did not take into account any incorrect considerations or omit to take into account any which he should have considered. It is suggested in paragraph 32 of the appellant's skeleton argument that it was incumbent upon the DPP to justify his decision by demonstrating by evidence and explanation that he took all appropriate matters into account. In so far as this proposition purports to place a burden on the DPP to provide justification for a decision which is not on its face irrational or aberrant, the suggestion is misplaced, as it is for an applicant to establish that some relevant factor has been left out of account by the decision maker. The matters set out in paragraphs 41 to 43 of Mr White's first affidavit demonstrate that in the respects covered by the averments in those paragraphs he applied his policy correctly.

    6. We agree with the judge that the DPP did not apply his policy in a manner which was unfair to the appellant, for the reasons set out in pages 47 to 49 of his judgment.

    The European Convention on Human Rights

    When the DPP made the decision or decisions not to prosecute the police officers, the Human Rights Act 1998 had not yet come into operation. He is now, as a public authority, bound by the terms of section 6 not to act in a way which is incompatible with a Convention right, but he was not then so bound. It follows in our opinion that he was not under a legal obligation to have regard to the provisions of the Convention when reaching his decision not to prosecute. By section 22(4) of the Act section 7(1)(b) – which enables a person who claims that a public authority has acted in a way made unlawful by section may rely on the Convention right or rights concerned in any legal proceedings – does not apply to an act which took place before the coming into force of section 7. Accordingly, if the DPP's decision was in breach of a Convention right, it is not made retrospectively unlawful. We are unable to agree with the appellant's submission that the decision not to prosecute and not to give reasons for that decision are continuing acts which now come within the 1998 Act.

    It was also submitted on behalf of the appellant that since the court, as a public authority, may not act in a way which is incompatible with a Convention right, it must afford him the appropriate relief if the decision of the DPP, assuming that it were made now, would be in breach of any such Convention right. We are unable to accept this proposition, for to do so would stultify section 22(4) of the 1998 Act. Section 7(1)(b) is to apply to allow a victim to rely on a Convention right in proceedings brought by or at the instigation of a public authority, whenever the act complained of was committed. But the victim may not invoke section 7(1)(b) to rely on a Convention right in respect of an act taking place before the subsection came into force. Nor do we see how the court could be said to be acting in a way which is incompatible with a Convention right if it holds that a decision was lawful at the time when it was made and declines to set it aside because it would be unlawful if made now. The appellant did not have a Convention right when the decision was made; and he is not entitled to rely on any Convention right in respect of decisions of the DPP made before 2 October 2000. For these reasons, accordingly, we would not be prepared to hold that the DPP's decision is subject to attack on any grounds based on the Convention. The parties did, however, deal fully in their arguments with the applicability of the Convention, and lest we should be wrong in our conclusion about its applicability and because it will clearly apply to future decisions of the DPP we shall express our opinion on the issue.

    Article 3 of the Convention

    Article 3 provides:

    "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

    It was not disputed that the ill-treatment found by Kerr J to have been sustained by the appellant came within Article 3 (although we must bear in mind the remarks of the European Court of Human Rights in paragraph 63 of its judgment in Aksoy v Turkey (1997) 23 EHRR 50). It was contended on his behalf that the obligation imposed upon states by Article 3 includes the duty to carry out a prompt, impartial and effective investigation into allegations of breaches of the article, which extends to giving victims access to investigation files and other materials.

    Failure to conduct a proper investigation into allegations of maltreatment in state custody has been held by the European Court of Human Rights (ECtHR) to constitute a separate violation of Article 3: Aydin v Turkey (1997) 25 EHRR 251, para 88; Assenov v Bulgaria (1998) 28 EHRR 652, para 102. The appellant's counsel cited two cases, Gulec v Turkey (1998) 28 EHRR 121 and Ogur v Turkey (Application no 21594/93) in support of the proposition that proper and effective investigation included giving the victim access to the investigation file.

    In Gulec v Turkey the applicant's son, aged 15, was killed during the course of violent demonstrations. The applicant's case was that he was killed by a shot from the security forces, who fired on the demonstrators to make them disperse, while the Turkish government claimed that the fatal shot was fired by armed demonstrators. The investigation into the killing was somewhat perfunctory and did not in the view of the ECtHR have the necessary independence to satisfy the requirements of Article 2. The Court stated in paragraph 82 of its judgment:

    "That being so, the Court, like the Commission, concludes that the investigation was not thorough nor was it conducted by independent authorities. What is more, it was conducted without the participation of the complainant, who did not receive notice of the order of 18 October 1991 or the decision of 13 November 1991."

    The Commission at paragraph 231 of its opinion observed that the investigation carried out was inaccessible to the applicant and that the case file on review by the Supreme Administrative Court was also inaccessible to him. Neither the Court nor the Commission said anything of a more general nature about the extent of any obligation on the part of the state to make papers available to the applicant, and the decision did not turn on this point.

    Ogur v Turkey was also an Article 2 case of loss of life, although it appears that the same principles are applied under Article 2 and Article 3 concerning the need for an effective investigation. The applicant's son was shot by a member of the security forces, who claimed that the discharge had been a warning shot to deter suspected terrorists from attempting to escape from a building in they believed an injured terrorist to have taken refuge. The conduct of the authorities in carrying out an investigation was described by the ECtHR in paragraph 98 of its judgment as " flagrant lack of diligence". Paragraphs 85 to 93 contain a catalogue of deficiencies. The material portion for present purposes is Paragraphs 90 to 92:

    "90. The subsequent investigation carried out by the administrative investigation authorities scarcely remedied the deficiencies noted above in that, again, no post-mortem or other forensic examination, notably in the form of ballistic tests, was ordered and no members of the security forces that took part in the operation were questioned, although their names were known (see paragraphs 43 and 49 above). Thus no serious attempt to identify the person who had fired the fatal shot was made, although several of the witness statements indicated that the shot came from the security forces.
    91. At all events, serious doubts arise as to the ability of the administrative authorities concerned to carry out an independent investigation, as required by Article 2 of the Convention. The Court notes that the investigating officer appointed by the governor was a gendarmerie lieutenant-colonel and, as such, was subordinate to the same chain of command as the security forces he was investigating. As to the Administrative Council, whose responsibility it was to decide whether proceedings should be instituted against the security forces concerned, it was composed of senior officials from the province and was chaired by the governor, who, in this instance, was administratively in charge of the operation by the security forces. In this connection, the evidence of one of the members of the Sirnak Administrative Council should be noted, according to which, in practice, it was not possible to oppose the governor: either the members signed the decision prepared by him or they were replaced by other members who were willing to do so (see paragraph 48 above).
    92. It must be noted, lastly, that during the administrative investigation, the case file was inaccessible to the victim's close relatives, who had no means of learning what was in it (see paragraph 15 above). The Supreme Administrative Court ruled on the decision of 15 August 1991 on the sole basis of the papers in the case, and this part of the proceedings was likewise inaccessible to the victim's relatives. Nor was the decision of 15 August 1991 served on the applicant's lawyer, with the result that the applicant was deprived of the possibility of herself appealing to the Supreme Administrative Court."

    It will be seen from the portions which we have quoted from these decisions that the ECtHR does not lay down any ruling that for an investigation to be regarded as effective the claimant must have access to the investigation papers. It is merely one element among others which may demonstrate the inadequacy of an investigation. It does not follow that a thoroughly conducted investigation is to be regarded as deficient if the complainant has not been given access to the investigators' documents. We would observe, moreover, that in referring to access to the case file in Ogur v Turkey the Court may have had in mind inspection of a document of the nature of the examining magistrate's dossier in an inquisitorial system, and that quite different considerations may apply to the investigation files of the RUC and DPP under our criminal law system. The principle with which the Court was concerned in each case was that the state's investigation of the conduct of its representatives be effective and independent. The steps which are required to achieve this will depend on the facts of the case and may vary enormously. This approach to interpretation of the Convention and its obligations accords with that expressed by Lord Hope in R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326 at 380-1, where he said:

    " … in the hands of national courts also the convention should be seen as an expression of fundamental principles rather than as a set of mere rules."

    We would refer also to the observations of the members of the Judicial Committee of the Privy Council in Procurator Fiscal, Dunfermline v Brown (2000, unreported).

    The final issue is the argument advanced on behalf of the appellant that the DPP's decision was flawed and should be set aside because he failed to have regard to international human rights standards embodied in a number of documents specified in paragraph 3(j) of the appellant's finally amended statement. It was not disputed that Mr White did not have regard to these, as appears from paragraph 8(e) of his affidavit sworn on 21 March 2000.

    The only two of these provisions to which Mr Macdonald directed our attention in the course of his argument on this point were the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted in 1985, and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by a UN Congress in 1990. The only material portion of the former document is the phrase in paragraph 4 which provides that victims "are entitled to access to the mechanisms of justice and to prompt redress". Paragraphs 22 to 24 of the latter read as follows:

    "22. Government and law enforcement agencies shall establish effective reporting and review procedures for all incidents referred to in principles 6 and 11(f). For incidents reported pursuant to these principles, Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.
    23. Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependents accordingly.
    24. Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use."

    None of these provisions lays down any requirement which is not already part of our law. We were not referred specifically to the other international documents enumerated in the appellant's statement, but we have looked at their terms. Again we can find nothing which is inconsistent with domestic law or which adds any obligation to the content of that law. We therefore consider that if the DPP incorrectly failed to have regard to any of these documents, he did not thereby prejudice the appellant by overlooking any obligation which was outside his contemplation as DPP observing the requirements of domestic law. Accordingly, if we found that the DPP was wrong to fail to have regard to these documents, we should in the exercise of our discretion refuse any relief to the appellant on that ground. The respondent's counsel argued cogently, however, that the DPP was not obliged by law to have regard to the content of any of these international documents, whatever it might be. They pointed to the clear pronouncements of the members of the House of Lords in R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696, and contended that any departure from the principles there laid down is contrary to authority. The statements of their Lordships in Ex parte Brind were made with reference to the European Convention on Human Rights, which has now been incorporated into domestic law, but remain as valid as ever in relation to other international treaties or adopted principles. The most forthright remarks were those of Lord Ackner at pages 761-2 (which, contrary to Mr Macdonald's submission, were part of his reasoning and not merely obiter):

    "There is yet a further answer to Mr Lester's contention. He claims that the Secretary of State before issuing his directives should have considered not only the Convention (it is accepted that he in fact did so) but that he should have properly construed it and correctly taken it into consideration. It was therefore a relevant, indeed a vital, factor to which he was obliged to have proper regard pursuant to the Wednesbury doctrine, with the result that his failure to do so rendered his decision unlawful. The fallacy of this submission is however plain. If the Secretary of State was obliged to have proper regard to the Convention, ie. to conform with article 10, this inevitably would result in incorporating the Convention into English domestic law by the back door. It would oblige the courts to police the operation of the Convention and to ask themselves in each case, where there was a challenge, whether the restrictions were 'necessary in a democratic society …' applying the principles enunciated in the decisions of the European Court of Human Rights. The treaty, not having been incorporated in English law, cannot be a source of rights and obligations and the question 'Did the Secretary of State act in breach of article 10?' does not therefore arise."

    Lord Bridge expressed views along the same lines at page 747, Lord Roskill agreed with Lord Bridge and Lord Lowry with Lord Ackner. These principles in our opinion apply directly to the treaties or documents adopted by international bodies to which we were referred. We do not consider that it is open to lower courts to adopt a different view from that expressed by the House of Lords in Ex parte Brind. It is important, however, to draw a clear distinction between the power to resort to international standards for guidance and the obligation to do so. In so far as Sedley J in R v Secretary of State for the Home Department, ex parte McQuillan [1995] 4 All ER 400, Kerr J in Re McMullan's Application (1994, unreported) and the learned judge in the present case purported to hold that it is permissible to have regard to the standards contained in the several international documents, we would regard that as an unexceptionable statement of the law. If, however, it were suggested expressly or impliedly that a person in the position of the DPP is obliged by law to do so, we could not accept that as correct.


    We accordingly must conclude that the learned judge was correct to hold that the appellant was not entitled to any of the relief which he claims, and we therefore dismiss the appeal.



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