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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Hutchings, Re Judicial Review  NIQB 121 (20 December 2017)
Cite as:  NIQB 121
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Neutral Citation No:  NIQB 121
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
SIR JOHN GILLEN (giving the judgment of the court)
- That the Director erred in law and/or exceeded his jurisdiction by issuing the Certificate.
- That the Director acted in breach of his duty to act in a procedurally fair manner.
- That the decision was Wednesbury unreasonable.
- That the decision was in breach of the legitimate expectation of the applicant that the Director would conduct a rigorous scrutiny.(The concept of legitimate expectation was not pursued by Mr Lewis at the hearing before this court )
- That the Director misdirected himself as to the appropriate legal principles which applied.
(1) That in 1974 there was a sustained campaign of violence undertaken by members of a proscribed organisation, the Provisional IRA.
(2) This campaign involved, inter alia, attacks on security forces, which inevitably included members of the British Army.
(3) In addition, at that time attacks were also mounted against, inter alia, persons believed to be members of unlawful organisations on the Loyalist side.
(4) Those attacks were mounted by use of weapons and explosives.
(5) A detachment of the Life Guards, a unit of the British Army, was stationed in the area in question.
(6) In the first two weeks of June 1974 some 38% of the shooting incidents in the Life Guard's operational zone occurred in the area of Eglish.
(7) One of these attacks resulted in the death of a Life Guard soldier.
(8) Two days before the fatal shooting of the deceased members of the Life Guards, under the command of Hutchings, came upon a group of men loading material into a vehicle.
(9) Those members of the Life Guards were involved in a "firefight" with those men after the men had been challenged; some of the men were apprehended but, importantly, some escaped.
(10) As a follow up to that firefight, arms and explosives were seized from the vehicle.
(11) The group of men was suspected to be made up of members of the Provisional IRA.
(12) On the day of the fatal shooting a patrol of the Life Guards came across a person (the deceased) some 3½ miles away from the scene of the firefight.
(13) That person ran away when confronted by the soldiers.
(14) He was suspected of being a terrorist and there was a suspicion that he may have been armed.
(15) He was called upon to stop but did not.
"[Cunningham] had a mental age of between 6 and 10 and as such, was dependent on others to care for him. … [He] was easily confused and may have had an inherent fear of men in uniform and armoured vehicles. …. On 11.50 am on Saturday 15 June 1974 [Cunningham] was walking home from The Priory. He was walking along Carrickaness Road, approximately a quarter of a mile from home when a ten man, two vehicle military patrol, heading towards Benburb, approached him. This patrol had been deployed in the area on follow up operations after a different Life Guard patrol had been involved in a shooting incident with Provisional IRA gunmen and an arms find two days previously.
As the Army patrol rounded a left hand bend in the road they saw [Cunningham] standing on their left looking into the hedge. He turned towards the patrol, appearing startled and he immediately ran across the road, in front of the vehicles, towards a gateway to a field. [Cunningham] climbed over this gate, entered the field and began to run parallel to the road in the general direction of his home, pursued by soldiers A and E who were shouting commands for him to stop and put his hands up. Evidence from soldier E suggests he believed [Cunningham] may have been armed.
Soldier B then ran from his vehicle and went to a second gateway, closer to where [Cunningham] was running. It is not clear from the evidence whether [Cunningham] had passed this gateway prior to the arrival of soldier B, but after several shouts from Soldier A for him to stop, a total of five shots was fired by both soldiers. [Cunningham] died where he fell, close to a metal strand fence used to separate two fields …..
[Cunningham's] death was an absolute tragedy that should not have happened. He was a vulnerable adult who was unarmed and shot as he was running away from soldiers. There is no evidence that he posed a threat to the soldiers or anyone else. The soldiers have declined to provide an account of what happened. Although HET cannot be critical of them for exercising their legal rights, the consequences of their decisions have resulted in the full facts of the case about [Cunningham's] death never being established."
The relevant legislation
"1. Issue of certificate
(1) This section applies in relation to a person charged with one or more indictable offences ("the defendant").
(2) The Director of Public Prosecutions for Northern Ireland may issue a certificate that any trial on indictment of the defendant (and of any person committed for trial with the defendant) is to be conducted without a jury if—
(a) he suspects that any of the following conditions is met, and
(b) he is satisfied that in view of this there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury.
(3) Condition 1 is that the defendant is, or is an associate (see subsection (9)) of, a person who—
(a) is a member of a proscribed organisation (see subsection (10)), or
(b) has at any time been a member of an organisation that was, at that time, a proscribed organisation.
(4) Condition 2 is that—
(a) the offence or any of the offences was committed on behalf of a proscribed organisation, or
(b) a proscribed organisation was otherwise involved with, or assisted in, the carrying out of the offence or any of the offences.
(5) Condition 3 is that an attempt has been made to prejudice the investigation or prosecution of the offence or any of the offences and—
(a) the attempt was made on behalf of a proscribed organisation, or
(b) a proscribed organisation was otherwise involved with, or assisted in, the attempt.
(6) Condition 4 is that the offence or any of the offences was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons.
(7) In subsection (6) 'religious or political hostility' means hostility based to any extent on—
(a) religious belief or political opinion,
(b) supposed religious belief or political opinion, or
(c) the absence or supposed absence of any, or any particular, religious belief or political opinion.
(8) In subsection (6) the references to persons and groups of persons need not include a reference to the defendant or to any victim of the offence or offences."
"7 Limitation on challenge of issue of certificate
(1) No court may entertain proceedings for questioning (whether by way of judicial review or otherwise) any decision or purported decision of the Director of Public Prosecutions for Northern Ireland in relation to the issue of a certificate under section 1, except on the grounds of—
(b) bad faith, or
(c) other exceptional circumstances (including in particular exceptional circumstances relating to lack of jurisdiction or error of law).
(2) Subsection (1) is subject to section 7(1) of the Human Rights Act 1998 (c. 42) (claim that a public authority has infringed Convention right)."
"3. The purpose of this Act is to deliver a number of measures which are necessary to deliver a commitment to security normalisation in Northern Ireland.
4. Under the Belfast ('Good Friday') Agreement the Government made a commitment to make as early a return as possible to normal security arrangements in Northern Ireland consistent with the level of threat. In April 2003 the Government set out proposals to normalise the security profile across Northern Ireland. In response to the IRA statement of 28 July 2005, on 1 August 2005, the Secretary of State Peter Hain announced a programme of security normalisation, subject to an enabling environment. A key part of the normalisation timetable is the repeal of counter-terrorist legislation particular to Northern Ireland (that is, Part VII of the Terrorism Act 2000) by July 2007.
5. Part VII of the Terrorism Act 2000 underpins the longstanding Diplock system. This is a system whereby certain offences ('known as scheduled offences') are tried without a jury unless the Attorney General exercises his discretion and directs that a case is to be tried before a jury (known as 'descheduling'). In exercise of his discretion, the Attorney General applies a non-statutory test that he will not deschedule a case unless he is satisfied that it is not connected with the emergency. ….
6. However, although Northern Ireland is in a process of security normalisation, some arrangements are necessary to ensure that jurors in Northern Ireland are protected from intimidation. This Act therefore makes provision to reform the jury system in Northern Ireland. sections 10 to 13 and Schedule 2 amend the Juries (Northern Ireland) Order 1996 to give effect to a number of reforms which it is considered will reduce the risk of juror intimidation and partisan juries by achieving greater anonymity for jurors and by promoting greater randomness in jury selection.
7. Despite the proposed jury reforms, it is not yet possible for Northern Ireland to operate entirely without the fall-back of some special arrangements for a small number of exceptional cases. This Act therefore provides for a new system of non-jury trial. The new system provides the Director of Public Prosecutions for Northern Ireland with discretion to issue a certificate stating that a trial is to take place without a jury if certain conditions which are set out in the Act are met. This means that the presumption will be for jury trial in all cases, while the small number of exceptional cases requiring non-jury trial will still be able to be treated appropriately. Such a system is necessary to ensure that trials continue to be fair in Northern Ireland and that the quality of justice remains high."
The background to the relevant statutory provisions in the 2007 Act
" The use of non-jury courts to try scheduled offences connected with the Northern Ireland troubles represented an exceptional measure necessitated by the widespread use of threats and violence which threatened to undermine the integrity of the criminal justice system. With security considerations improving the view was taken by Government that it was possible and desirable to return to the normal legal process with jury trials taking place in relation to trials on indictment, wherever possible. The Government, accordingly, issued a consultation paper 'Replacement Arrangements for the Diplock Court System' in August 2006. It proposed a new approach whereby the presumption would be that there would be trial by jury but with scope for non-jury trial available when it was considered necessary to ensure that a fair trial could be provided where there are paramilitary or community based pressures on a jury. The paper recognised a continuing legacy of terrorism that had to be taken into account when considering future arrangements. There was a recognised residual risk from those dissident Republicans and Loyalist paramilitaries who still engaged in planning acts of terrorism and who continued to raise funds for their organisations. Ministers concluded that some form of non-jury trial would be necessary in Northern Ireland for exceptional cases. However, it was considered that the time was right for the presumption to shift in favour of jury trial. The consultation paper concluded that the Director was best placed to make the decision for non-jury trials. He should make his decision against a defined test. A statutory test would be more transparent and give the Director clear guidance about his decision-making. The consultation paper recognised the existence of the provisions of the Criminal Justice Act 2003 section 44 of which enables the prosecution to apply in any case for a non-jury trial where there is a clear and present danger of jury tampering.
 Following the consultation process the Government brought before Parliament draft legislation. Under its proposals the decision whether a trial should be conducted without a jury was to be made by the Director. The test to be applied was whether he suspected that any of the specified conditions were met and, if so, whether he was satisfied that in view of this there was a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. Section 1 of the 2007 Act was duly enacted so as to specify that test.
 One provision of the draft legislation was a matter of particular contention, namely that relating to a limitation in respect of a legal challenge to the issue of a Director's certificate."
(The court then set out the wording of the original draft)
"Concerns were expressed about this wording by the Joint Committee on Human Rights and by the House of Lords' Select Committee on the Constitution. In due course Clause 7 of the Bill was modified and section 7 ultimately emerged in its final form. In its present form a judicial review is limited to grounds of dishonesty bad faith or 'other exceptional circumstances (including particular exceptional circumstances relating to lack of jurisdiction or error of law)'."
"In response to her questions about why we include a fourth condition in the first limb about religious or political hostility, we do so because incidents, events and crimes might reflect the religious and political hostility that has, I am sad to say, been a feature of Northern Ireland for far too long, and there could be evidence of that but no evidence that the perpetrators were involved in a proscribed organisation. The Hon. Lady might say that that is not likely, and perhaps it is not, but if the Director of Public Prosecutions had evidence that people or a defendant were involved in political or religious hostility, but could not show that they were members of a proscribed organisation, it would be wrong if the option of the non-jury trial was prevented in such circumstances.
Let me take the example of Whiterock. If there was evidence that a defendant was involved in the kind of hostility that marked that dreadful event in Northern Ireland—related as it clearly was to political and religious hostility—but it was not possible to show that they were a member of a proscribed organisation, the fourth test in the first limb would enable the DPP to issue a certificate. Our motivation is to ensure that all eventualities are covered in relation to the conflict and criminality with which we are trying to deal, which is the most serious criminality in Northern Ireland."
The Director's response to the challenge of the applicant
"5. I can confirm that there are two aspects to the decision taken by me. In the exercise of my discretion I must firstly:
(a) Suspect that (Condition 4) is met, and
(b) Be satisfied that in view of this there is a risk that the administration of justice might be impaired if the trial were to be conducted by the jury.
6. I suspected that Condition 4 was met.
7. Condition 4 requires that (thereafter the condition is set out) …
8. I respectfully contend that the wording suggests it was the intention of Parliament to provide that this sub-section should be broadly interpreted.
9. There is no suggestion that the soldier is any part of the 'sectarian divide', nor is he involved in any proscribed organisation. Indeed paragraph 8 of the legislative framework makes it clear that references to persons and groups of persons need not include the defendant.
10. I suspected that the offence was committed to any extent (whether directly or indirectly) as a result of or in connection with or in response to the political hostility of one person or group of persons towards another person or group of persons; namely in connection with or in response to the political hostility of members (or suspected members) of the Provisional IRA towards those who believe that Northern Ireland should remain a part of the United Kingdom.
11. As stipulated above and in the legislation the object of the political hostility need not be either the defendant or the victim of the offence.
12. The following factors were relevant in my decision to suspect that Condition 4 was satisfied (hereinafter the Director set out the detail contained in paragraph 8 of this judgment).
13. It is my contention that in light of the aforementioned factors, the section is worded sufficiently widely for me to have reasonably suspected that Condition 4 was met having considered these factors.
14. The second limb of section 1(2) relates to my satisfaction that there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. In arriving at my conclusion I was mindful of judicial consideration of such matters as articulated in Re Jordan's Application, both in the High Court and Court of Appeal and in Re McParland's Application. I was satisfied that in the circumstances of this case there was such a risk as is provided for in section 1(2)(b).
15. In consideration of all the material before me and in a careful analysis of the facts, circumstances and senior counsel's opinion, I was properly satisfied that in view of this there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury.
16. The applicant suggests that the issuing of a certificate in this prosecution is a statement that no member of the security forces can have a trial by jury. I can confirm that that my decision to issue a certificate is a decision that I take in a case by case basis and only upon application.
17. The issuing of a certificate in this case is by no means a pronouncement as to the mode of trial in future cases involving members of the security forces or the police."
"I can advise you that the Director suspected that Condition 4 in section 1 of the 2007 Act was satisfied on the basis of information provided by the police coupled with a commentary and assessment of that information, and analysis of the facts and circumstances of this case and the advice of senior counsel. In this way the Director formed the requisite suspicion.
In view of the suspicion which he formed in relation to Condition 4, the Director was satisfied that there was a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. This risk arises from the possibility of a biased juror or jury having regard to the particular circumstances of this case.
The Director further considered whether the risk to the administration of justice could be mitigated by application to the court to screen the jury, sequester the jury or transfer the trial to a different venue. The Director was satisfied that there remained a risk that the administration of justice might be impaired on the basis that, even if granted, these measures might not be sufficiently effective in preventing or significantly reducing the potential risk posed to the administration of justice in this case.
In reaching this decision, the Director had regard to the views of police, the analysis of the circumstances of this case, the evidence to be led at trial and the advice of senior counsel."
"2. I am informed by senior counsel who is retained to prosecute the case against the applicant, and believe, the evidence to be adduced by the prosecution indicates that the applicant thought the deceased was acting suspiciously. In interview with police after the death of the deceased, the applicant did not make a case that he suspected that the deceased was a terrorist, although that is one interpretation of the answers which he provided.
3. I am further informed by counsel, and believe, the evidence to be adduced by the prosecution does not include evidence that the applicant suspected that the defendant was armed. There is evidence available that another soldier present at the scene believed that the deceased had a concealed weapon.
4. I am further informed by counsel, and believe, that evidence to be adduced by the prosecution indicates the deceased was called upon to stop by soldiers but failed to do so."
"Bearing in mind the need to narrowly and strictly construe section 1 of the 2007 Act it is necessary to determine the true effect of the conditions which, if satisfied, justify the withholding of a defendant's right to a jury trial. The statutory conditions, expressed in clear and unambiguous terms, justifying the exercise of the Director's power to issue a certificate for a non-jury trial necessitate formation of a suspicion that one or more of the conditions under section 1 are met. If that suspicion is formed the Director must reach an evaluative conclusion whether in the view of that suspicion there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. The tests of suspicion and risk to justice are set at a modest level. They are tests to be considered by the Director and call for a personal judgment reached by him in the light of the information available to him."
"The nature of the statutory conditions (suspicion and a risk to the interests of justice) involves matters of impression and evaluation and judgement on the part of the Director."
"What is impermissible is to treat the wishes and desires of the Government about the scope of the statutory language as reflecting the will of Parliament. The aims of the Government in respect of the meaning of clauses as revealed in explanatory notes cannot be attributed to Parliament. The object is to see what is the intention expressed by the words enacted (our emphasis)."
• Condition 4 is not confined to the circumstances of Conditions 1, 2 and 3. The wording moves beyond the confines of the accused person being within a paramilitary organisation. It clearly envisages looking at the circumstances leading up to the offence being considered.
• The significance of the wording that the offence "was committed to any extent (whether directly or indirectly)" cannot be underestimated. This clearly widens the bracket of connective circumstances that can be embraced between the offence itself and the religious or political hostility.
• The breadth of this phraseology confounds Mr Lewis's assertion that the words "immediately" should be imported into the section so that the offence in question had to be committed immediately after the initial offence. Not only could Parliament have easily drafted this precise wording into the section if it was meant to apply, but to have done so would have been incongruous with the phraseology that has been included. We see no basis for adopting such an interpretation.
• As already indicated political hostility can apply to "supposed" political opinion, again widening the reach of the section.
Section 1(a) of the 2007 Act
"Two days before John Pat's death, in another incident, a Life Guard foot patrol had surprised a group of men who were in the process of transferring weapons into a car near the village of Eglish. The patrol was fired on and during an exchange of gunfire, three men were arrested and a quantity of arms and explosives was recovered. However, at least three other gunmen escaped. Following that incident, the patrol that came across John Pat had been engaged in follow up operations in the general area in an effort to apprehend the remainder of the gunmen and also to location further arms caches believed to be in the area."
Section 1(b) of the 2007 Act
"That risk, albeit reduced, exists to the present time."
- There are formidable difficulties in being satisfied that the insidious nature of bias has been removed in security and terrorist type cases.
- It is necessary to confront directly the need to ensure that jury verdicts emerge unconstrained by tribal loyalties. A Coroner must be satisfied that there will be a sensitively constructed distance between prejudice and justice.
- The existence of a real risk of a biased juror or jury will outweigh any other factor."
"If an applicant for permission to move for judicial review claims that the Secretary of State's decision is vitiated by some form of illegality he will file evidence to that effect. The court will not shut out evidence that is relevant to the issues. Indeed, it may order disclosure of evidence for disposing fairly of the application. The evidence is not strictly limited to evidence which was or should have been before the Secretary of State at the time of the decision"
"Without limiting the generality of this request we specifically seek disclosure of: the facts, the analysis and counsel's opinion referred to in paragraph 15 of the Mr McCrory's affidavit."
"Please be advised that the material you have requested has been considered and in light of the decision arising in the case of Tweed v Parades Commission  1 AC 650, it is not considered that disclosure of the material sought is necessary in order to resolve the matters fairly and justly."
"In the minority of judicial review applications in which the precise facts are significant, procedures exist in both jurisdictions … for disclosure of specific documents to be sought and ordered. Such applications are likely to increase in frequency, since human rights decisions under the Convention tend to be very fact specific and any judgment on the proportionality of a public authority's with reference to a protected Convention right is likely to call for a careful and accurate evaluation of the facts. But even in these cases, orders for disclosure should not be automatic. The test will always be whether in the given case, disclosure appears to be necessary in order to resolve the matters fairly and justly."
"A party whose affidavits contain a reference to documents should therefore exhibit them in the absence of a sufficient reason (which may include the length or volume of the documents, confidentiality or public interest immunity). If he raises objection to production of any document, the judge in a Northern Ireland case can decide on the hearing of a summons … whether to order production."
"As Re Shuker  NI 376 shows, it is not every decision making process which demands procedural fairness in the sense of requiring the decision maker to consult the party affected or to make him aware of the nature of the evidence being relied on when reaching a decision adverse to him. The nature of the statutory conditions (suspicion and a risk to the interests of justice) involves matters of impression and evaluation and judgment on the part of the Director. A suspicion once formed on the basis of sensitive intelligence material, usually of such a nature that it could not in the public interest be disclosed to the defendant, will remain unless it can be wholly dispelled. The ipse dixit of the defendant denying any ground for suspicion is not going to dispel a suspicion properly formed on the basis of intelligence advice emanating from apparently reliable sources. The nature of the exercise to be carried out by the Director does not, as pointed out in Re Shuker, lend itself either to the full panoply of judicial review or the implication of a duty to seek or receive representations before the Director forms a suspicion. The Director had to act fairly in the sense of reaching a dispassionate decision based on some material which led him rationally to form a suspicion that one or more of the conditions was satisfied and that there was a risk that the administration of justice might be impaired if the trial were conducted with a jury. There is no evidence that the Director failed to approach his task in the correct manner."
Section 7 of the 2007 Act