High Court of Justice in Northern Ireland Queen's Bench Division Decisions

1. The applicant in this case is David Adams. He has instituted these proceedings for the purpose of seeking judicial review of two decisions of the Director of Public Prosecutions ("DPP") made on 6 August 1999 and 7 September 1999. It is claimed that in the course of these decisions the DPP declined to direct a prosecution against any police officer involved in the arrest, assault and detention of the applicant on 10 February 1994 and that he failed to provide adequate and intelligible reasons for his decision.

2. On 10 February 1994 a planned police operation took place in Belmont Avenue, Belfast to foil a terrorist attack which, according to intelligence reports, was to occur that morning. The police were successful in preventing the attack and in arresting those involved one of whom was the applicant in this case. He and the others who were arrested with him were convicted on 17 May 1995 of a number of serious criminal offences including conspiracy to murder. They were sentenced to lengthy terms of imprisonment. The plaintiff alleged that after he had been apprehended by the police, he was subjected to a series of assaults by them. The violence inflicted on him was, he claimed, wholly unnecessary to effect his arrest. He instituted civil proceedings for compensation against the Chief Constable of the Royal Ulster Constabulary ("the Chief Constable"). On 18 February 1998 he obtained £30,000 damages on foot of an award made to him by Kerr J. In the course of his conclusions Kerr J said at page 42 of his judgment:

3. A police investigation file in respect of allegations of criminal conduct against police officers made by the applicant was received by the DPP from the Royal Ulster Constabulary on 29 July 1994. Following completion of the criminal proceedings against the applicant a direction of no prosecution was issued to the Chief Constable. Subsequent to the judgment of Kerr J in February 1998 and following a request from the applicant's solicitors, Madden & Finucane, a further interim direction was issued by the DPP to the Chief Constable on 27 February 1998 asking whether police intended to carry out further investigations in light of the judgment. On 11 March 1998 the DPP was informed by the Chief Constable that the circumstances of the case had been referred to the Independent Commission for Police Complaints ("ICPC") who had agreed to supervise a further investigation. The DPP was further informed that the Chief Constable had asked the Chief Constable of Strathclyde Police to nominate a suitable investigating officer. Pursuant to this, Assistant Chief Constable James Orr was nominated and approved by the ICPC ("ACC Orr"). On 16 December ACC Orr's report was submitted to the DPP's office by the Chief Constable accompanied by a certificate from the ICPC dated 8 December 1998 stating that, in the opinion of the ICPC, the investigation had been comprehensive and carried out extremely thoroughly to the satisfaction of the Commission.

4. In an affidavit on behalf of the respondent dated 10 December 1999 sworn by Alan White, barrister at law, ("White's first affidavit") he averred that he had considered the investigation file of ACC Orr which contained a number of sections and which are set out between paragraphs 17 and 22 of his affidavit. At paragraph 24 he averred that he had briefed senior counsel with the papers and asked him to consult with whichever witnesses he considered necessary and advise whether there was a reasonable prospect of convicting any police officer of an assault on the applicant or any other criminal offence arising from the facts and circumstances reported. At paragraph 27 he averred that on 7 May 1999 senior counsel and himself consulted with the independent forensic pathologist and a police officer on observation duty on 10 February 1994 (both of which pieces of evidence had not been heard at the civil proceedings). Mr White averred at paragraph 30 that he had concluded 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. On 6 August a direction of no prosecution issued to the Chief Constable. This is the first decision that forms the subject of this judicial review.

5. Between August and November 1999 correspondence was exchanged between the DPP's office and the applicant's solicitors and two human rights organisations. In the course of the correspondence the Director was requested to explain in detail the basis of the direction for no prosecution. By way of letter dated 7 September 1999 Mr White reiterated that the decision of no prosecution had been issued on 6 August 1999. He refused to make public the report of ACC Orr or the information contained in the police investigation file. The applicant argues that he also failed to provide what the applicant has characterised as adequate and intelligible reasons for his decision not to direct a prosecution against any police officer involved in his arrest, assault and detention. This is the second decision that is challenged.

6. By this application the applicant challenges both decisions. He seeks an order of certiorari to quash the decisions, a declaration that the decisions were unlawful and an order of mandamus directed to the DPP requiring him to make a determination in this matter in accordance with correct principles of law and practice and taking into account all relevant matters.

7. In its original form, the statement served on behalf of the applicant under Order 53 of the Rules of the Supreme Court (Northern Ireland) 1980 adumbrated the following main grounds:

8. On 3 March 2000, by order of Kerr J, the Order 53 statement was amended to include the following grounds:

9. In the course of the hearing, on 8 March 2000 I permitted a further amendment. Whilst I consider that leave to amend a grounding statement will only be granted in exceptional circumstances, I consider that in this instance it was necessary to determine the issues in suit between the parties. The amendments were as follows:

10. Mr Harvey QC, who appeared on behalf of the applicant with Mr Macdonald, founded his case on two broad submissions. First, that the DPP had failed to provide reasons why a prosecution was not brought in this case. The decision to refuse to give reasons he argued was a free standing issue which can and should be the subject of judicial review. Secondly, he submitted that the decision not to prosecute, taken in the absence of reasons, was irrational and unlawful. In making his case he relied on a number of arguments which I shall deal with in the course of this judgment. He indicated at the outset that he was relying also on the submissions to be made by Mr Treacy BL who had obtained leave from Kerr J to intervene in these proceedings on behalf of the Northern Ireland Human Rights Commission (hereinafter referred to as "HRC").

11. The general principles which have substantially governed my consideration of the arguments put before me in this matter are as follows:-

12. It is trite law to state that an application for judicial review is not an appeal. In particular it is not an appeal against the merits of the decision being challenged. In general that means that conclusions of fact, judgment and discretion are undisturbable. The court will review the way in which a decision has been made to determine whether there has been unlawfulness, unreasonableness or unfairness. This has recently been restated by Lord Clyde in Reid v Secretary of State for Scotland (1999) 1 AER 506:

13. In recent cases on judicial review, a trend towards an increasing insistence on greater openness in matters of government and administration may be discerned. Moreover that momentum seems to have generated a greater willingness to intervene in cases where reasons have not been given and an increased recognition of the duty on decision-makers of various types to furnish reasons. In Doody v Secretary of State for the Home Department (1993) 3 AER 92 at page 107E (" Doody's case") Lord Mustill said:

14. More recently in Stefan v G.M.C. (1999) 1 WLR page 1300 (" Stefan's case") Lord Clyde said:

15. An assessment of such circumstances must commence by recognising that despite the trend towards recognition of the duty to give reasons, a court must not lose sight of the established position of the common law that there is no general duty to give reasons for administrative decisions universally imposed on all decision-makers. (See Stefan's case and Doddy's case). This must be tempered to some extent by the remarks of Lord Clyde in Stefan's case at page 1301A:

16. Against this background, the following principles may be deduced in approaching the circumstances where a duty to give reasons arises:

17. Mr Smith QC criticised this part of the judgment as introducing an all too vague category of "trigger factors" which he submitted was devoid of ascertainable meaning. I consider, however, that the court was not introducing a separate entity by referring to trigger factors, but simply indicating the manner in which the court should approach identifying a class of case where there is a duty to give reasons. Recognition of such a class is "triggered" for example by an issue of personal liberty or an obviously aberrant decision.

18. In this context Sedley J helpfully proposed a number of factors in favour of giving reasons and factors not in favour of requiring reasons at page 665J:

19. It is difficult to state with any degree of precision the standard of reasoning a court will demand. Much depends upon the particular circumstances and the statutory context in which the duty to give reasons arises. Consequently the courts have not attempted to define a uniformed standard or threshold which the reasons must satisfy. Assistance may be gained as to the form which a decision should take from In the Matter of an Application by the Fair Employment Commission for Northern Ireland for Judicial Review (1990) 10 NIJB 38 (per Carswell J as he then was), Cunningham's case, Doody's case, Higher Education case and In the Matter of an Appeal by Kevin Farrell against the Refusal of Leave to Apply for Judicial Review (unreported, Court of Appeal in Northern Ireland, 29 June 1996 per Nicholson LJ) and the authorities therein discussed. However, I consider that one cannot do better than refer to the observations by Lord Clyde in Stefan's case:

20. The applicant in this case has submitted in paragraph 3F of his statement that in addition to the failure on the part of the director to furnish any or adequate reasons, he has failed to act fairly in arriving at the said decision in that he failed to make available to the applicant copies of either Assistant Chief Constable Orr's report of the investigation or the written advices of senior counsel on the merits of the prosecution. The latter point with reference to senior counsel's opinion was abandoned by Mr Harvey QC in the course of submissions. The statement goes on to submit that the Director failed to give the applicant a proper opportunity to make informed representations in the light of the said report and advice. It is appropriate, therefore, that I should consider the general principles governing the concept of procedural fairness in judicial review.

21. The trend towards greater openness is reflected in the requirements of fairness. The duty of fairness is a flexible and evolving concept. Mr Smith QC on behalf of the respondent submitted to me that procedural fairness only arises where a decision confers a benefit or an advantage on another person. Whilst such circumstances will be most compelling, as a general proposition I consider this to be too restrictive and inflexible. Lord Mustill in Doody's case said of the concept of fairness at page 106E:

22. The path of the authorities and the modern trend is traced in such leading textbooks as De Smith, Woolf & Jowell on Judicial Review of Administrative Action, 5th Edition at page 404 where the author states:

23. I consider, therefore, that the concept of fairness is an evolving one and its standards are not immutable. I accept the proposition of Mr Harvey QC on behalf of the applicant that where procedural fairness is required the Wednesbury test is inappropriate. The test is not whether the court considers that no reasonable body would have so acted. Rather the test is simply whether or not the body has acted with procedural fairness. Moreover I endorse the view that whilst fairness is dependant on the context of the decision nonetheless the standards of fairness may, where they are unclear or incomplete, move or change with the grain of our times. It is in this context that international standards do fall to be considered. Counsel for the respondent has criticised this approach on the basis that it creates uncertainty and vagueness which in essence should be anathema to legal principle. One must be mindful however of what Lord Reid said in Ridge v Baldwin (1964) AC 40 at page 64/65:

24. Judicial review, therefore, will naturally search for precision as an aid to the prediction and prescription of administratively fair and correct procedures but it cannot afford to abandon flexibility as a principle. The evolving nature of the standards of fairness and the trend in favour of openness was illustrated to me by Mr Treacy with two further current examples. First, in a Home Office circular of 28 April 1999 entitled "Deaths in police custody: guidance to the police on pre-inquest disclosure". This circular recognises the need in such inquests for pre-inquest disclosure to the family of the deceased including in some instances, where it is in the public interest, even the investigating officer's report. Secondly, the Review of the Criminal Justice System in Northern Ireland. Whilst this is not a legal document and without standing as a precedent, it espouses the need for a prosecutor to give as full an explanation as possible to someone with a proper and legitimate interest in a case as to why there has been no prosecution "without prejudicing the interests of justice or the public interest". It recommends that the presumption should shift towards giving reasons where appropriate (see paragraph 4.167).

25. As a general proposition there is merit in the suggestion that the common law or public law standards, the boundaries of which are not immutable and which do tend to evolve with the passage of time, should be open to guidance from relevant international standards and principles where there is uncertainty, ambiguity or incompleteness in the law. Insofar as the concept of fairness is an evolving one, that evolution can take these standards into account in the course of a restrained review at domestic as well as at the international level.

26. In this context the Northern Ireland Human Rights Commission(“HRC”) sought and obtained leave from Kerr J to intervene in the above proceedings. Mr Harvey QC, who appeared on behalf of the respondent, indicated that he wished to adopt the arguments of the HRC as part of his case and did not intend himself to deal with this aspect. For this reason I permitted the HRC to make oral representations in addition to their written submissions. My ruling therefore should not be taken as a precedent for similar applications to intervene in future cases. In normal circumstances written submissions may well suffice to fulfil the role of an intervener where leave has been granted. Mr Treacy BL, who appeared on behalf of the HRC, invited the court to take into account a number of European and international standards. In a well presented argument it was his submission that whilst the court was not bound in each instance to take them into account they ought to provide appropriate guidance in my approach to current common law or public law standards. His submissions were:-

27. Mr McCloskey QC, who appeared on behalf of the respondent with Mr Smith QC, in an equally well presented argument, submitted that Mr Treacy’s case was implausible in that it amounted to an invitation to give effect to these rights by way of back door incorporation. In essence Mr McCloskey’s argument is that a national court in our legal system is not competent to give effect to any of the international instruments or treaties on which the respondent relies unless they have been incorporated by legislation.

28. The genesis of the respondent’s argument in this regard is Regina v Secretary of State for the Home Department ex parte Brind and others (1991) 1 AC 696 (" Brind's case"). In this case, the applicants sought to invoke Article 10 of the European Convention in the face of a bar by the Home Secretary on the broadcasting of the direct spoken words of members of certain terrorist organisations in Northern Ireland. The House of Lords however held that the presumption that legislation complies with a treaty obligation only applies in the case of a true ambiguity and does not apply to limit the meaning of clear general words. At page 747G, Lord Bridge said:

29. It was Mr McCloskey’s argument that only where there was ambiguity in English primary or subordinate legislation could Convention or treaty rights be deployed for the purpose of the resolution of an ambiguity. Accordingly it was impermissible to import such standards into the common law even if, contrary to his assertion, the concept of procedural fairness applied in this instance to the Director’s decision. He argued that the principles of fairness in the common law were settled and accordingly ambiguity did not arise in their interpretation. Insofar as there was text book authority and judicial authority to the contrary, Mr McCloskey argued that such authority either ignored Brind or betrayed a misunderstanding of it. In his submission, the most recent opportunity for the House of Lords to have modified Brind, if that was their wish, arose in R v Director of Public Prosecutions ex parte Kebeline and others (1999) 4 AER 801. This case considered the DPP’s continuing consent to prosecute the applicants for offences under Section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989 in light of Article 6(2) of the European Convention and pending the coming into force of Section 22(4) of the Human Rights Act 1998. The applicants' argument was rejected and Lord Steyn said at page 833B:

30. Accordingly, Mr McCloskey borrows this quotation to fuel his argument that Parliament has now entered into this field and that in this twilight period until the Human Rights Act 1998 is brought into effect, the boundaries are clearer than ever between domestic law as it now applies and the new law when it comes into effect. Finally, Mr McCloskey argues that many of these international instruments relied on by Mr Treacy do not even have the status of treaties in international law and are therefore even further removed from creating any guiding principles.

31. I consider that the respondent’s argument imposes too great a constraint on the development of the common law and too restrictive an interpretation upon the view of the majority in Brind’s case. In Derbyshire CC v Times Newspapers (1992) 1 QB 770, in a case dealing with the entitlement of a local authority at common law to sue for libel to protect its governing reputation, the Court of Appeal considered the impact of Brind. At page 812B, dealing with Article 10 of the European Convention, Balcombe LJ said:

32. Later Balcombe LJ said at page 813B:

33. I do not consider that such an approach does depart from the authority of Brind. I am reinforced in this view by the judgment of Sedley J in the case of R v Secretary of State for the Home Department, ex parte McQuillan (1995) 4 AER page 400. This case involved the review of an exclusion order under Section 5 of the Prevention of Terrorism (Temporary Provisions) Act 1989 prohibiting the applicant from being in or entering Great Britain on the ground that he was or had been involved in acts of terrorism. The question arose as to whether the Secretary of State’s decision contravened Articles 2 and 3 of the European Convention recognising the right to life and the right not to be subjected to inhuman treatment. Sedley J said at page 42F:

34. This appears to have been the approach adopted by Kerr J in R v McMullan and others (unreported 4 October 1994). In that case, one of the issues before the court, was whether the existence of a violation of the European Convention was a factor within the embrace of the broad discretion vested in the court by Section 11(3) of the Northern Ireland (Emergency Provisions) Act 1973. Having reviewed all the authorities, Kerr J said at page 12:

35. These propositions have found respectable support from a number of leading text books, namely:

36. Two basic tenets govern the operation of these principles in this sphere. First, as Lord Wilberforce said in Balthwayt v Baron Cawley (1976) AC page 426:

37. Secondly, however, this must be tempered by what Lord Simon said in the same case at page 427:

38. I conclude therefore that to permit international standards to serve as a useful guide rather than as a prescriptive rule in those areas where procedural fairness is uncertain, ambiguous or incomplete is not to adopt forbidden reasoning. I consider that to do so where appropriate shows a proper sensitivity to the limits of permissible judicial creativity and to be no less than constitutional propriety requires.

39. I must now consider how these general principles are applicable to the particular circumstances of this case:

40. Under Article 5(2) he is responsible to the Attorney General for the due performance of the functions of the Director under the Order. Article 6 deals with the delivery of information to the Director and at Article 6(3) the Order states:

41. Clearly therefore there is no statutory obligation to provide reasons.

42. 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. It is a reflection of this complex function that has led to the conclusion in a number of authorities that judicial review should be sparingly exercised when dealing with the office of the Director of Public Prosecutions. The position is well summarised in the judgment of Kennedy LJ in R v DPP ex parte C (1995) 1 CAR 136 (" ex parte C (1995)"). This case considered the decision of the Director not to prosecute in a case of alleged buggery. Having reviewed all the authorities, Kennedy LJ said at page 141:

43. More recently in R v Director of Public Prosecutions ex parte Treadaway , The Times, 31 October 1997 (" Treadaway's case"), at page 8, Rose LJ said:

44. This was a case involving the decision of the DPP not to prosecute a number of police officers in the West Midlands Police Serious Crime Squad and the issue arose as to whether or not reasons for that refusal ought to have been given. At page 14 Rose LJ said:

45. A similar approach to the Office of the Director of Public Prosecutions had been adopted outside this jurisdiction. In H, applicant v Director of Public Prosecutions and the Commissioner of Garda Sicohana (1994) 2 IR 589 the case concerned an application to compel the DPP to institute a prosecution or to give reasons for not doing so and to supply the applicant with such statements and documentation. In the Supreme Court O'Flaherty J said at page 602:

46. Mr Smith submits that given the nature of the DPP's functions, procedural fairness is not the criterion to be applied where a victim seeks review of a decision not to prosecute or a failure to provide reasons for not instituting a prosecution. Whilst I consider this is too absolute a position, I am persuaded that it is only in the exceptional circumstances postulated by Lord Clyde in Stefan's case that such an obligation would arise. The recent decision in the Divisional Court in England in R v Director of Public Prosecutions ex parte Patricia Manning and Elizabeth Melbourne (unreported 17 May 2000) is a good example of such a circumstance. In that case a prisoner had died in the course of a struggle with prison officers whilst he was in custody. Death was a result of fatal force to the neck which had been applied by one particular officer. An inquest was held with a jury into the death and a verdict of unlawful killing on the basis of an unlawful act of manslaughter was returned. The DPP issued a decision not to prosecute. A judicial review of that decision was instituted by relatives of the deceased on the grounds, inter alia, that no adequate reasons for the decision were given. At page 22 Lord Bingham LCJ said:-

47. Mr McCloskey urged on me that this case had been wrongly decided. I do not agree. I consider it is no more and no less than a working illustration of that exceptional class of case where even a Director of Public Prosecutions will be required to furnish reasons to a victim for failing to prosecute.

48. Moreover there may well be occasions when the Director may furnish reasons in specific cases for example on foot of a policy adopted, a code drawn up, the public interest, or even as part of the gathering momentum of transparency and openness in public affairs. Ultimately the DPP is accountable to the Attorney General and to Parliament and it would be strange if current public concern for victims was not reflected to some degree in the Director's approach to his functions. I was referred to two decisions of Kerr J namely In the matter of an Application by Margaret Laverty for Leave to Apply for Judicial Review (unreported, 28 April 1998) and In the matter of an Application by Chalmers Brown for Judicial Review (unreported, 13 December 1996) and to R v The Crown Prosecution Service ex parte Maureen Hitchins (unreported 13 June 1997) in England where reasons had been provided by the Director for a decision not to prosecute. Such cases however in my view do not necessarily spring from a duty to act with procedural fairness but as a result of a case by case consideration by the Director and as a consequence of the discretion vested by Parliament in him to act in the public interest. In my view, so long as in this case the Director has looked at the matter on an individual basis, in light of the policy he has adopted, has considered in terms if this is one of the exceptional cases such as Manning and has not fallen foul of the principles set out by Kennedy LJ, then he is not bound to adopt the same approach to the giving of reasons in this case as he may have adopted in other individual instances.

49. Mr Harvey rightly concedes that there can be no general rule that the Director must give reasons in every case. Rather he argues, relying on the principles to which I have referred in the cases of Doody, Murray, Cunningham and Higher Education , that this is one of those trigger cases requiring reasons or alternatively one of those cases that "cries out" for reasons. In essence the circumstances which he argues triggers the need for reasons are as follows:

50. The chairman of the ICPC had also indicated that the Commission had considered an external officer should be appointed because of the specific nature of the case and the need for an investigation which was "transparently independent".

51. I am not persuaded that these factors, individually or cumulatively, do constitute a trigger requiring reasons to be furnished to Mr Adams beyond those already given in general terms by the DPP. Whilst undoubtedly serious assaults such as this by the police on members of the public are matters of profound concern, I cannot see why, without more , victims in such instances should have a more compelling case or should enjoy greater rights than a plethora of other victims. The potential category is endless. Victims of rape, child abuse, bombing outrages and the relatives of murder victims and children killed by joyriders are but examples of an endless list of high profile outrageous offences which have all individual claims for special treatment especially where the victim's and the public's perception may be that the perpetrators are well known to the police. I consider it would be invidious and indeed illogical for a Director to be obliged to draw a line between those victims whose cases were in a special category justifying reasons being given and those which were not when the line is based solely on the identity of the offender and the publicity given to the offence. Such a division itself would constitute a potent stimulus for judicial review. Where however there are additional factors, such as are found in Manning's case, the fact that servants of the State were involved may be an important matter but by itself I do not consider it to constitute a sufficient trigger. In this case, unlike many other victims, and the family in Manning's case, Mr Adams has had his assault thoroughly investigated not only by the police but also by the DPP, an independent police force supervised by the Independent Commission for Police Complaints, an independent senior counsel and a full public hearing before a High Court judge. It is not without note that the Independent Commission for Police Complaints for Northern Ireland wrote to the Chief Constable on 8 December 1998 stating, inter alia:

52. However Mr Harvey argues that the additional factor in this case is that there was a full and effective inquiry before Kerr J and that in light of his finding the decision not to prosecute was so inexplicable and aberrant that the ordinary expectation would be that the Director would vindicate his decision by giving intelligible reasons. Accordingly I must consider this proposition in the present context of procedural fairness although I consider precisely the same reasoning will be applied when considering whether or not the decision not to prosecute was irrational under the Wednesbury principles to which I will turn later in this judgment. I do not consider that one can characterise the decision of the Director in this case as being inexplicable or aberrant. In the first place, the Director had before him a number of matters which were not before the learned trial judge. These included forensic medical evidence, additional witness statements and information provided by Assistant Chief Constable Orr. One of the witness statements included an eye-witness undercover police officer allegedly at the scene. This evidence was not only subjected to the scrutiny of the Director, but also to that of an independent senior counsel as well as that of the Assistant Chief Constable Orr and the ICPC. The standard of proof in a criminal matter would of course be different from that in the civil proceedings before Kerr J. It must be appreciated that whilst there obviously was clear evidence before Kerr J that Mr Adams had been assaulted by police officers for which the Chief Constable was vicariously liable (the injuries virtually speak for themselves in this regard), a wholly new process has to be considered when ascertaining if there is sufficient evidence for specific criminal proceedings to be preferred against individual officers.

53. Mr Harvey has drawn my attention to a number of specific passages from the judgment of Kerr J, namely pages 28, 30, 38, 39 and 43 indicating that the learned judge had expressed substantial reservations about the truth and accuracy of the evidence of at least three officers, namely Forsythe, McBrien and Berry. I do not consider it however an irrational leap of logic, particularly where there has been additional evidence, for the Director to have concluded that in law the evidence did not reach the standard appropriate to institute criminal proceedings. Two matters illustrate this possibility. First, Mr Harvey argues that Sergeant Rainey should have been the subject of prosecution for failing to observe or note Mr Adams' injuries upon his arrival at Castlereagh. Of this officer Kerr J said:

54. However, as Mr Smith pointed out to me, a charge against Sergeant Rainey for neglect of duty by a police officer requires a number of detailed legal considerations. Mere non-feasance is not sufficient and it requires proof of deliberate failure and wilful neglect. As Lord Widgery CJ said in R v Dytham (1979) QB 722:

55. This is a balanced judgment which has to be made by the Director taking into account all the evidence and I do not believe that failure to institute a charge such as this necessarily connotes circumstances which are aberrant or irrational. The learned trial judge did not have to consider this specific charge and doubtless did not even have it in mind when making the comments which he did on Sergeant Rainey. Similarly the suggestion by Mr Harvey and Mr Macdonald that there was a basis for charges of assault against officers at Castlereagh individually or as being involved in a joint enterprise. The constituent elements of joint enterprise also require individual legal perusal. A person is not guilty merely because he is present at the scene of a crime and does nothing to prevent it. In each case the Crown would have to prove, in the absence of any positive act, a prior agreement or some positive act of assistance or encouragement voluntarily done. The fact that officers may have been less than frank does not by itself necessarily prove that they have each participated to the degree necessary to satisfy a court that they were jointly involved in a criminal offence. Accounts of the individual participation of each officer or even the identity of each officer may well have been conflicting. An example of this was that Mr Adams himself was clearly mistaken in suggesting that Sergeant Berry participated in the attack at Castlereagh Police Office. As Kerr J remarked at page 42 of his judgment the applicant was given to inaccuracy and exaggeration albeit that the judge also concluded that plaintiff was assaulted in Castlereagh in the manner alleged by him. In contrast in Manning's case the inquest jury verdict implicated a person who, although not named in the verdict, was clearly identified in the specific crime of unlawful killing.

56. 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. I consider this case is wholly distinguishable from that of Treadaway where there was clear evidence that the judgment in question had not received a sufficiently careful analysis if a decision not to prosecute was to be made. I find no such evidence in this instance.

57. Mr Harvey also submits that there have been a number of other breaches of the duty to act fairly. In particular he argues that there has been a failure to make available to the applicant copies of either Assistant Chief Constable Orr's report of the investigation or the written advices of senior counsel on the merits of the prosecution. In final submissions Mr Harvey, in a wise concession, made clear that he was not pursuing the latter matter. Unlike the instance in the Kebeline case, senior counsel's opinion in the instant case is clearly privileged and a victim would not have a legitimate expectation to see that opinion. If authority for this proposition be needed it is found in Re Shearer's application (1993) 2 NIJB 12 at pages 31-37. Not dissimilar principles govern the retention of ACC Orr's report. In R v Director of Public Prosecutions ex parte Hallas (1988) 87 Cr App R 340 one of the issues that arose was whether an individual who has instituted a private prosecution has a right to the production of documents such as police statements, reports and photographs held by the Crown Prosecution Service. At page 342 Lloyd LJ said:

58. The function of the DPP is again relevant in this regard. The Director, having the discretion vested in him to consider whether or not to issue a prosecution, must balance a number of rights which may be transgressed by the disclosure of material. The victim is not the sole person whose rights have to be considered. The role of disclosure in the administration of justice was dealt with in Taylor and others v Serious Fraud Office and others (1998) 4 AER 801 (" Taylor's case"). The House of Lords considered the immunity of potential witnesses in criminal proceedings and those investigating a crime or possible crime. Lord Hope said at page 817C:

59. Accordingly I do not consider the applicant has any legal right to see ACC Orr's report.

60. Similar reasoning governs my view that the submission in this case that Mr Adams was unfairly deprived of access to the material considered by the DPP is without foundation and is not an example of procedural unfairness. In Taylor's case, Lord Lloyd continued at page 817:

61. Lord Hoffman dealt with the same theme at page 810J when he said:

62. I consider there are no such overriding requirements in this case and the public interest would not be best served by affording access to the file to Mr Adams.

63. Mr Harvey argued that the Director failed to act fairly in that he did not provide the applicant with a proper opportunity to make informed representations in the light of ACC Orr's report and senior counsel's advices. In essence this amounts to a claim by Mr Adams that the decision of the DPP was rendered unfair by the failure to consult him. I find no authority that indicates there is any general duty of consultation. I am reinforced in that view by the recent authority of R v Director of Public Prosecutions ex parte C reported 10 March 2000. I believe the reasoning is summarised at page 10 of that judgment where it states:

64. In this case, a young rape victim had not been consulted by the Crown Prosecution or indeed even informed of the decision not to proceed with her case. I see nothing in the applicant's case that distinguishes it from the general proposition that there is no duty to consult the victim for discontinuance of proceedings.

65. A further submission on behalf of the applicant was to the effect that a judicial review in itself created the need for reasons to be given so that the court will know whether grounds for challenge exist. I do not agree with this proposition because to so hold would create a general duty to give reasons in the face of a common law principle which establishes that there is no such general duty (see Higher Education Funding case at page 665D). The determination of whether or not reasons require to be given is a free standing issue. In Manning's case Bingham LCJ said at page 23:

66. The judicial review itself cannot create the need for reasons. There is either an entitlement or there is not. It is for the court to determine whether or not reasons ought to have been given.

67. However irrespective of the general position, Mr Harvey argues that in this particular case the Director does have a policy with reference to the giving of reasons and this policy has been operated unfairly. Not only does Mr Harvey point to cases, to which I have adverted, in the past where reasons have been given, but in this instance he fastens on to the proposition that in considering his policy, the Director has confused two questions. It is submitted that the Director has failed to ask at the outset if reasons ought to be provided in view of the unique features mentioned above and thereafter to ask if the undesirable consequences of reasons being given should have an impact on that decision. Mr Harvey submits that Mr White on behalf of the Director has fallen into the false logic of saying that because one or more of the undesirable consequences of giving reasons obtains, reasons cannot be given ie he has failed to consider the appropriate starting point, namely whether there are sufficient features to take this case out of the general rule.

68. On behalf of the respondent, Mr White averred at paragraph 33 of his affidavit of 10 December 1999 ("the first White affidavit") as follows:

69. Mr White then goes on in paragraph 34 to outline five main considerations which govern this general practice:

70. In paragraph 37 of the affidavit Mr White avers:

71. I should say at this stage that I consider that there is nothing unfair about this general approach or about the reasons underlying the adoption of this policy. Moreover I see nothing aberrant or unlawful in the adoption of such a policy.

72. I have also read the contents of paragraph 8 of Mr White's affidavit of 21 March 2000 ("White's second affidavit") where the deponent has meticulously gone through each sub-paragraph of paragraph 3K of the plaintiff's statement as amended. I conclude that in applying the policy which I have set out above, the Director did consider the appropriate factors contained within paragraph 3K. Insofar as he did not take into account any of those factors my views are as follows:

73. Consequently I consider that the Director did take into account all those matters which might have had the potential to take this particular case outside his general policy. He then considered the impact of attempting to give reasons in this instance. I do not accept therefore that he confused the two questions raised by Mr Harvey.

74. I now consider the Director's application of the policy in this instance. Mr Harvey argues that the exercise of his discretion must be informed by fairness. He submits this has been an inexplicable decision not to prosecute and therefore the failure to give reasons effects the whole process and the decision itself. In this case he says the policy has not been applied fairly and the explanation given by the Director for not providing detailed reasons is flawed with unfairness. The first affidavit of Mr White deals with this matter at paragraphs 41 to 43:

75. A number of disparate interests, including the public interest, have to be weighed by the Director whilst implementing this policy. The very nature of the interest which he is protecting may preclude him from going beyond general reasoning because to enter into detailed reasoning may promote the very mischief which the Director is anxious to avoid. It is against this background that I have concluded that the application of this policy has not been applied unfairly, if that was to be the test to be applied and has not been applied irrationally in a Wednesbury sense. Thus:

76. I must consider now whether or not the application of procedural fairness in this case is to be influenced or guided by the international standards to which I have referred earlier in this judgment. It is my view that where the evolving concept of procedural fairness is uncertain, ambiguous or incomplete then the court can take these standards into account. There is no arbitrary limit to cases which may come within the gathering ambit of the exceptions to the general rule not to give reasons as outlined by Sedley J in Higher Education Funding case, Lord Clyde in Stefan's case or the principles set out in Doody's case or Murray's case. In the circumstances of this particular case however I do not find there is any element of uncertainty, ambiguity or incompleteness in the principles of procedural fairness which fall to be applied. The principles I have visited in the preceding paragraphs of this judgment all seem to me to be tolerably clear and wedded to authoritative precedent. In terms I find nothing to bring this case within the parameters of the statement of Balcombe LJ in Derbyshire CC v Times Newspapers (1992) 1 QB 770 at page 812B and which I have referred to at pages 21 and 22 of this judgment. Consequently I do not consider that the international standards referred to require to be invoked as a further guide.

77. If however again I am wrong in this and if the evolving nature of the concept of fairness and of public law has created ambiguity, uncertainty or incompleteness in the principles I have considered, or indeed if the international standards per se must be taken into account in determining standards of fairness, then I must turn to these standards and consider their relevance to this case. Having done so, I have concluded that I can find no breach of any of these standards when applied in this instance.

78. At the heart of Mr Treacy's submissions lay the argument that by virtue of the assault on Mr Adams by servants of the State they had committed an act of torture, contrary to Article 3 of the Convention. As a result a number of matters are triggered:

79. Two cases illustrate the difference between the present case and those authorities. In Assenov's case, at page 701 paragraph 103 it is clear that the alleged beating in that case was witnessed by approximately 35-40 witnesses but that no attempt was made to contact or question these witnesses in the immediate aftermath of the incident. Instead a statement was taken from only one independent witness who could not recall the events. There had been a deplorably ineffective investigation into the claim that he had been beaten by police officers. In Aydin's case at paragraph 106 it is clear that the victim had made allegations of torture, rape and ill-treatment by police. A similarly deplorable investigation had ensued. The public prosecutor had not visited the scene of the incident, had made no attempt to ascertain if the location the victim described was consistent with her allegations, had questioned no police officers in the critical initial stages of the investigation and had conducted that part of the inquiry by correspondence. I believe that any court, irrespective of Article 3 of the Convention, would have concluded that there was a totally inadequate investigation and any conclusion to the contrary would have been irrational.

80. In contrast in this case, I see no such evidence of an ineffective investigation. The allegations in this case have not only been subjected to the scrutiny of the RUC, but also by a new investigation by an independent police force supervised by an independent statutory body, namely the Independent Commission for Police Complaints for Northern Ireland. This body concluded that there had been a thorough investigation. Thereafter independent senior counsel played a role in further assessing the investigation. It seems to me therefore that there is absolutely no basis for suggesting that there has not been an effective investigation of these matters.

81. Although Mr Treacy drew my attention to the cases of Aydin, Aksoy v Turkey (1997) 23 EHRR 553, Kaya v Turkey (1999) 28 EHRR 1 and Assenov's case, I find nothing in these cases that defines precisely the criteria applicable to such a concept. Perhaps recognising this, Mr Treacy in this context largely relied on Ogur's case. Once again however the facts of the case bear no comparison to the present instance. In Ogur's case, the victim had been killed in the course of an operation conducted by the security forces at a local building site. As paragraph 85 of the decision makes clear, the investigating officer had not even considered it necessary to identify and question the members of the security forces who had taken part in the operation. The Commission considered that the investigation carried out at a national level into the death had not been conducted by independent authorities, had not been thorough and had taken place without the applicants being able to take part. In short there had been a total cloak of secrecy over the whole proceedings. At paragraph 92 of the judgment, the court noted 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.

82. I do not believe that this is a free-standing decision to the effect that access to a case file must be provided in any investigation in order to comply with European standards of public law. To hold this, would be to overturn the principles I have referred to in Taylor's case. I find nothing in any of the European standards urged on me which conflicts with the principles set out in Taylor. Indeed, turning to the second skeleton argument of the HRC, I note that the guidelines on the role of prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders specifically states that prosecutors shall "keep matters in their possession confidential unless the performance of duty or the needs of justice require otherwise". Unlike Ogur's case, Mr Adams was invited to contribute albeit at first he refused to do so. I see nothing to suggest that he or his advisers were not informed of the progress of the investigation. Moreover, as I have already indicated, direct access to every aspect of the case was given to an independent police force and an independent statutory body as well as senior counsel. The principles in Taylor's case must be a guide in the area of access and within those constraints I am not persuaded that there has been any failure in this case to afford appropriate access to the investigations.

83. Thirdly, I do not believe that as a victim Mr Adams has been deprived of an effective remedy. The practical impact of the aggregation of remedies has to be considered (see Silver v United Kingdom (1983) 5 EHRR 347 and Lester and Pannick on Human Rights Law and Practice 1999 Edition at paragraph 4.13.17). In this context I think there is strength in Mr McCloskey's submission that the applicant has had a catalogue of domestic redress available to him which he lists as follows:

84. I consider, therefore that Mr Adams has been afforded an effective remedy against the wrongs visited on him in this instance.

85. It is my conclusion therefore that insofar as the European international standards which have been urged on me must inform the concept of procedural fairness in this particular case, I find no disharmony between those standards and our domestic law. Accordingly had I been obliged to decide whether or not there had been a breach of procedural fairness to Mr Adams in light of the international standards submitted to me, I would have concluded that there had been no such breach and that he had been accorded appropriate procedural fairness.

86. Mr Harvey's second primary argument was that the decision not to prosecute, taken in the absence of reasons, was irrational and unlawful. I consider that the principles governing this approach are those set out by Kennedy LJ in ex parte C (1995) and to which I have already referred in this judgment. I shall deal with these principles in turn:

87. I do not consider therefore that the granting of leave does constitute prima facie finding of irrationality because leave falls far short of any such finding.

88. Finally, I do not find any basis for suggesting that there was improper motive or bad faith on the part of the Director in this matter. It was submitted on behalf of the applicant that there was mala fide on the part of the RUC in that evidence was produced to the DPP eg the undercover police officer at the scene, which was not discovered to the plaintiff in the civil action or produced in evidence at the hearing before Kerr J. I do not see how mala fide on the part of the police or Chief Constable would in any event visit improper motive or bad faith on the part of the DPP whose task is to consider pursuant to a statutory obligation material disclosed to him by the Chief Constable. Secondly, I see nothing suggestive of mala fide on the part of the police or the Chief Constable in producing this additional evidence. An independent senior counsel has consulted with this witness and one must assume has given the matter close and independent perusal. Where there has been this and other independent scrutiny, I see no basis for the case that the DPP's decision-making power was infected with improper motive, fraud or dishonesty. I am therefore not persuaded that this applicant has succeeded in discharging the heavy burden which is necessary to condemn a decision as Wednesbury unreasonable.

89. Accordingly I have concluded that the application in this matter must be refused.

90. The applicant's costs as a legal aided person will be taxed in accordance with the relevant schedule of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981.