Court of Appeal in Northern Ireland Decisions

"Having regard to the functions of the Director, you will understand that for good and coercive (sic) reasons it is an invariable practice of the Director to refrain from giving reasons for decisions not to institute or continue with criminal prosecutions, other than in the most general terms. However, I can inform you that, following careful consideration of the facts and information reported in the supplementary report, it was concluded that the evidence remained insufficient to warrant the prosecution of any person in relation to the death of Mr Jordan."

It seems likely, as Mr McCloskey QC for the DPP suggested, that the word "coercive" was written inadvertently for the word "cogent".

"80. The Director of Public Prosecutions (the DPP), appointed pursuant to the Prosecution of Offences (Northern Ireland) 1972 (the 1972 Order) is an independent officer with at least 10 years' experience of the practice of law in Northern Ireland who is appointed by the Attorney General and who holds office until retirement, subject only to dismissal for misconduct. His duties under Article 5 of the 1972 Order are inter alia:-

'(a)  to consider, or cause to be considered, with a view to his initiating or continuing in Northern Ireland any criminal proceedings or the bringing of any appeal or other proceedings in or in connection with any criminal cause or matter in Northern Ireland, any facts or information brought to his notice, whether by the Chief Constable acting in pursuance of Article 6(3) of this Order or by the Attorney General or by any other authority or person;

(b)  to examine or cause to be examined all documents that are required under Article 6 of this Order to be transmitted or furnished to him and where it appears to him to be necessary or appropriate to do so to cause any matter arising thereon to be further investigated;

(c)  where he thinks proper to initiate, undertake and carry on, on behalf of the Crown, proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him.'"

"81. Article 6 of the 1972 Order requires inter alia Coroners and the Chief Constable of the RUC to provide information to the DPP as follows:-

'(2)  Where the circumstances of any death investigated or being investigated by a coroner appear to him to disclose that a criminal offence may have been committed he shall as soon as practicable furnish to the [DPP] a written report of those circumstances.

(3)  It shall be the duty of the Chief Constable, from time to time, to furnish to the [DPP] facts and information with respect to –

(a)  indictable offences [such as murder] alleged to have been committed against the law of Northern Ireland; ...

and at the request of the [DPP], to ascertain and furnish to the [DPP] information regarding any matter which may appear to the [DPP] to require investigation on the ground that it may involve an offence against the law of Northern Ireland or information which may appear to the [DPP] to be necessary for the discharge of his functions under this Order.'"

82.  According to the Government's observations submitted on 18 June 1998, it had been the practice of successive DPPs to refrain from giving reasons for decisions not to institute or proceed with criminal prosecutions other than in the most general terms. This practice was based upon the consideration that

(1)  if reason were given in one or more cases, they would be required to be given in all. Otherwise, erroneous conclusions might be drawn in relation to those cases where reasons were refused, involving either unjust implications regarding the guilt of some individuals or suspicions of malpractice;

(2)  the reason not to prosecute might often be the unavailability of a particular item of evidence essential to establish the case (e.g. sudden death or flight of a witness or intimidation). To indicate such a factor as the sole reason for not prosecuting might lead to assumptions of guilt in the public estimation;

(3)  the publication of the reasons might cause pain or damage to persons other than the suspect (e.g. the assessment of the credibility or mental condition of the victim or other witnesses);

(4)  in a substantial category of cases decisions not to prosecute were based on the DPP's assessment of the public interest. Where the sole reason not to prosecute was the age, mental or physical health of the suspect, publication would not be appropriate and could lead to unjust implications;

(5)  there might be considerations of national security which affected the safety of individuals (e.g. where no prosecution could safely or fairly be brought without disclosing information which would be of assistance to terrorist organisations, would impair the effectiveness of the counter-terrorist operations of the security forces or endanger the lives of such personnel and their families or informants)."

"122. The Court recalls that the DPP is an independent legal officer charged with the responsibility to decide whether to bring prosecutions in respect of any possible criminal offences committed by a police officer. He is not required to give reasons for any decision not to prosecute and in this case he did not do so. No challenge by way of judicial review exists to require him to give reasons in Northern Ireland, though it may be noted that in England and Wales, where the inquest jury may still reach verdicts of unlawful death, the courts have required the DPP to reconsider a decision not to prosecute in the light of such a verdict, and will review whether those reasons are sufficient. This possibility does not exist in Northern Ireland where the inquest jury is no longer permitted to issue verdicts concerning the lawfulness or otherwise of a death.

123. The Court does not doubt the independence of the DPP. However, where the police investigation procedure is itself open to doubts of a lack of independence and is not amenable to public scrutiny, it is of increased importance that the officer who decides whether or not to prosecute also gives an appearance of independence in his decision-making. Where no reasons are given in a controversial incident involving the use of lethal force, this may in itself not be conducive to public confidence. It also denies the family of the victim access to information about a matter of crucial importance to them and prevents any legal challenge of the decision.

124. In this case, Pearse Jordan was shot and killed while unarmed. It is a situation which, to borrow the words of the domestic courts, cries out for an explanation. The applicant was however not informed of why the shooting was regarded as not disclosing a criminal offence or as not meriting a prosecution of the officer concerned. There was no reasoned decision available to reassure a concerned public that the rule of law had been respected. This cannot be regarded as compatible with the requirements of Article 2, unless that information was forthcoming in some other way. This however is not the case."

He stated that the Director was alert to the separate issue currently pending in connection with the Jordan inquest, that is to say the measures to be taken at the level of the United Kingdom Government in response to the judgment of the European Court.

"The Government are considering a package of measures which, taken together, should meet the concerns expressed by the European Court of Human Rights in its judgments in a series of cases from Northern Ireland, including Jordan v United Kingdom. In furtherance of that objective, I have had a number of discussions with the Director of Public Prosecutions for Northern Ireland (the Director) regarding the giving of reasons when a decision is reached not to initiate or continue a prosecution.

We have agreed that the following statement should issue:-

"No reasons, other than in general terms, have been given to date. Inquest proceedings in relation to the death of Pearse Jordan are currently live. Once the proceedings have been completed, the Director of Public Prosecutions for Northern Ireland will give further consideration to whether any prosecution should follow. Following the decision of the ECHR in the case of Jordan v UK the Director has reviewed his policy on the giving of reasons."

She then referred to the written reply of the Attorney-General set out at paragraph [15] above.

(1) That the European Court had held that the DPP was in breach of his procedural obligations under Article 2 in refusing to give reasons for deciding not to prosecute in 1993 and 1995 and that failure to give reasons for a decision not to prosecute is an aspect of Article 2.

(2) That the DPP made a decision in January 2002, communicated to the legal advisers of the appellant by letter dated 1 February 2002, not to give reasons which was in breach of section 6(1) of the Act.

(3) That the DPP was in continuing breach of those obligations, when asked for reasons in September 2001, contrary to section 6(1) of the Human Rights Act 1998.

(4) That the Act was retrospective, that Lambert and Kansal related only to criminal proceedings and that Wilson and Wainwright were fact specific.

(5) That there was an obligation on the court to act in a manner which was compatible with the Article 2 rights of the appellant.

(6) That there was a right on the part of the appellant to an effective official investigation at common law including an obligation on the Secretary of State to ensure that it was carried out and an obligation on the DPP to comply with rules of procedural fairness to disclose his reasons for directing 'no prosecution'.

(7) That the court must impose such an obligation on the Secretary of State and on the DPP.

(8) That there was an obligation of promptness imposed by Article 2 and that the adjournment of the inquest necessitated a disclosure of the DPP's reasons now.

(9) That the common law acknowledged a right to life and that the court should develop the common law in the light of the decision in Jordan.

(10) That the decision in Re Adams should not be followed as it preceded the decision in Jordan and was inconsistent with the decisions of the Court of Appeal in re McKerr.

(1) That the European Court had held that there were six shortcoming in the investigation by the State, one or two of which might not amount to a breach of Article 2 and, therefore, it was not correct to say that the court had found the DPP to be in breach of Article 2.

(2) That the DPP did not act or fail to act, within the meaning of section 6(1) when the letter dated 1 February 2002 was written. The DPP acted in 1993 and 1995. The decision not to prosecute and not to give reasons was one decision.

(3) Every decision has a continuing effect but there was no continuing obligation to give another decision. To give another decision in February 2002 or now might pollute the inquest and any subsequent decision by the DPP in respect of a prosecution. The decision not to prosecute was not a continuing act: see In re Adams [2001] at p. 19. There is no conflict between the decisions in Re Adams and Re McKerr.

(4) Section 6(1) is not retrospective subject to the limited exception contained in section 22(4).

(5) The obligation on the part of the DPP and of the court turns on the construction of section 6(1). Jordan does not assist in the construction of section 6(1).

(6) There is no duty on the DPP In domestic law to give reasons for his decision not to prosecute. The various shortcomings referred to by the European Court belong to the realms of international law, and, therefore, do not assist in the construction of section 6(1).

(7) A package of measures is proposed to meet the shortcomings indicated by the European Court. A reform of the Coroners' Rules has been made: a fresh inquest or the adjourned inquest will be conducted according to those Rules: the scope of the inquest could be wider, depending on the decision of the House of Lords in Middleton; further measures may be taken to widen the scope of the investigation. The DPP does not rule out the provision of reasons for deciding 'not to prosecute', if that is the outcome of his decision whether or not to prosecute, after he has received the Coroners' report of the more thorough investigation which is to be carried out. The time to address the duty to give reasons, if there is a duty, is when the inquest is completed or a fresh inquest is held.

(8) There is no current breach of Article 2 by the DPP. He has given a public commitment to re-consider his decision not to prosecute, following receipt of the Coroners' report.

(9) The appellant is not a victim within the meaning of section 7(1)(b).

"There is no reasoned decision available to re-assure a concerned public that the rule of law had been respected. This cannot be regarded as compatible with the requirements of Article 2 unless that information was forthcoming in some other way." The information was not forthcoming by way of an inquest conducted under the Coroners Act (Northern Ireland) 1959 and the rules made in 1963, the court held: see paragraphs 125 to 140 of the judgment of the Court.

Notwithstanding the practice of successive DPPs to refrain from giving reasons for decisions not to institute or proceed with criminal prosecutions other than in the most general terms, based upon the consideration set out at paragraph 82 of the judgment of the Court it held that in the case of Jordan, this practice did not accord with Article 2.

It concluded that the proceedings for investigating the use of lethal force by Sergeant A had been shown to disclose six forthcomings: see paragraph 142 of the judgment.

At paragraph 145 it found that there had been a failure to comply with the procedural obligation imposed by Article 2 of the Convention and, therefore, a violation of that provision in that respect.

"9(1) No witness at an inquest should be obliged to answer any question tending to incriminate himself or spouse.

(2) Where it appears to the coroner that a witness has been asked such a question, the coroner shall inform the witness that he may refuse to answer."

The effect of this Rule is that Sergeant A may now be required by the Coroner to give evidence but is not obliged to answer any question tending to incriminate himself. Where there has been a decision by the DPP not to prosecute, this alters the nature of the inquest. In the present case the DPP must, I consider, have based his decision partly on the statement of Sergeant A who will be faced with cross-examination: see the summary of events set out in the judgment of the court. If he declines to answer a question on the ground that he may incriminate himself, the question or questions which he refuses to answer, will doubtless, be taken into account by the coroner when he reports to the DPP under article 6(2) of the Prosecution of Offenders (NI) Act 1972 and by the DPP when he receives the report.

For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. I reject the argument of the respondent that the appellant is not a victim.