Court of Appeal in Northern Ireland Decisions

Background

"We continued to question subject about his admissions to us, about being in the Provisionals and he agreed and said 'I am making no statement'. When asked why he did not want to make a statement to clear the whole lot up he replied 'I can't make a statement I am an officer'. We continued to question the subject and he then said 'Sure you said yesterday that I am the QM'. When the subject was asked if this was true he agreed.

…

We continued to question subject about this incident and he admitted 'I only done cover with a pistol while another man fired an Armalite'."

"Having considered his report we are content to accept it, as agreed by the Crown and, having looked carefully at the findings which he has recorded, it appears that there is a basis for his conclusion that there must have been another version of the interview note of interview five. We do not base this so much upon the absence of certain passages, which may perhaps at least be explicable by notes having been made on a different surface in the time when those portions were recorded, but what we consider is of substantial significance is verbal differences between the recorded interview and the impressions which were found by Mr Hughes on examination. These are not substantial matters and they do not bring in any other matter which was in itself damaging to the case of the appellant, and we should make that clear that there is no question in this case of matters apparently having been written in which dam him and which are not contained in the impressions. But they vary in certain minor respects in wording which cannot be accounted for, in our opinion, by anything appearing or explicable from the impressions and accordingly we accept the conclusion that Mr Hughes advanced that there appears to have been a different version of interview five in existence at some time."

- That when a Police Ombudsman investigation file was submitted the Director had to decide whether or not criminal proceedings should be instituted or continued;

- That it was the general practice of the Director to refrain from giving reasons for decisions not to institute or continue with criminal proceedings other than in the most general terms;

- That the Director recognised that the propriety of applying his general practice must be examined and reviewed in every case where a request for reasons was made;

- That accordingly the Director had carefully considered whether the general practice should be applied in this case or whether it was appropriate to depart from it. He had concluded that it would be inappropriate to depart from the general practice in this case;

- That the evidence and information reported on by the Police Ombudsman investigators together with their recommendations had been carefully considered by an experienced lawyer in the office. The advice of independent senior counsel had also been obtained. It had been concluded that the evidence available was insufficient to afford a reasonable prospect of obtaining a conviction against any person and accordingly a direction for no prosecution had been issued.

Perjury

"(1)   If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury …"

The decision not to prosecute

"22. With regard to the matter of providing reasons for decisions not to prosecute, 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 irrespective of whether the request for reasons emanates from a victim, an accused person or some other properly interested party.

23. This general practice is based upon the following main considerations:

(i) Firstly if detailed reasons are given in one or more cases, they may well 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."

The arguments

Re Manning and Re Adams

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

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

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

"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 e.g. 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."

The Convention arguments

"[17] In the present case the question of retrospectivity arises in the context of section 6 of the 1998 Act and article 2 of the convention. It arises in this way. Section 6 of the Act creates a new cause of action by rendering certain conduct by public authorities unlawful. Section 7 (1) (a) provides a remedy for this new cause of action. A person who claims a public authority is acting in a way made unlawful by section 6(1) may bring proceedings against the authority if he is a victim of the unlawful act. Thus, if the Secretary of State's failure to arrange for a further investigation into the death of Gervaise McKerr is unlawful within the meaning of section 6(1), these proceedings brought by his son fall squarely within s 7; if not, not.

…

[20] … article 2 may be violated by an unlawful killing. The application of section 6 (1) of the 1998 Act to a case of an unlawful killing is straightforward. Section 6(1) applies if the act, namely, the killing, occurred after the Act came into force. Section 6(1) does not apply if the unlawful killing took place before 2 October 2000. So much is clear.

[21] The position is not so clear where the violation comprises a failure to carry out a proper investigation into a violent death. Obviously there is no difficulty if the death in question occurred post-Act. The position is more difficult if the death occurred, say, shortly before the Act came into force and the necessary investigation would fall to be held in the ordinary course after the Act came into force. On which side of the retrospectivity line is a post-Act failure to investigate a pre-Act death?

[22] In my view the answer lies in appreciating that the obligation to hold an investigation is an obligation triggered by the occurrence of a violent death. The obligation to hold an investigation does not exist in the absence of such a death. The obligation is consequential upon the death. If the death itself is not within the reach of section 6, because it occurred before the Act came into force, it would be surprising if section 6 applied to an obligation consequential upon the death. Rather, one would expect to find that, for section 6 to apply, the death which is the subject of investigation must itself be a death to which section 6 applies. The event giving rise to the article 2 obligation to investigate must have occurred post-Act."

"[91] The duty to investigate is, in short, necessarily linked to the death itself and cannot arise under domestic law save in respect of a death occurring at a time when article 2 rights were enforceable under domestic law, i.e. on and after 2 October 2000."

The admissible basis of challenge to the DPP's decision

 "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."

[42] We consider that we are bound by the assessment that the policy is neither irrational or aberrant. We must therefore approach the question whether the DPP's decision is irrational on the basis that he is entitled to refuse a request that he give reasons for not prosecuting unless he is satisfied that the case comes within an exceptional category and that it does not give rise to the risks that are rehearsed in the policy. This is an important factor in setting the context for the appraisal of the argument that the decision not to give reasons was irrational. Properly analysed, this is not an open-ended review of the decision not to go beyond the reasons provided. Rather it is an examination of the reasonableness of the conclusion reached by the DPP that this case did not warrant a departure from his policy.

The alleged failure of the Director to have regard to the adverse consequences of his refusal to give reasons

Conclusions