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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 >> X, Re Application for Judicial Review [2008] NIQB 65 (13 June 2008)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2008/65.html
Cite as: [2008] NIQB 65
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Ref: TRE7204
TREACY J
[1] In this application for judicial review the applicant is in effect seeking relief in relation to three separate matters arising from decisions of the Rosemary Nelson Inquiry ("the Inquiry"):(1) The decision of the Inquiry to disseminate certain sensitive material concerning the applicant (see para 2(1) of the Order 53 statement).
(2) The decision of the Inquiry not to disclose to the applicant witness statements made to the Inquiry which are adverse to him (see para 2(6) of the Order 53 statement).
(3) The decision to refuse to grant the applicant legal representation at the Inquiry.
Decision to disseminate certain sensitive material
[2] As far as this decision is concerned it is difficult to identify in the Order 53 statement the actual grounds relied upon to support the relief sought. Grounds (a)-(d) and (f)-(g) are merely criticisms of the nature of the material. Many of these "grounds" are not in reality grounds at all but rather assertions of fact. Grounds (m) – (q) appear to relate to this issue. Under this heading ground (q) would appear to be the most relevant. It is in the following terms:"The Inquiry has failed to balance the relevance and importance of the material against the risk to the applicant's life and safety which will result from its disclosure or, if it has, it has failed to give due weight to that risk by comparison with the value to the Inquiry of disclosing the material."[3] Neither this central ground of challenge nor any of the other "grounds" assert that the Inquiry applied the wrong test. In reality this is an irrationality challenge to the determination made by the Inquiry as was counsel's submission that, contrary to the Inquiry's finding, there was a real and immediate risk to the life of the applicant. As to the complaint that the Inquiry allegedly failed to balance the relevance and importance of the material against the risk to the applicant this is plainly ill-founded. That the Inquiry did conduct such a balancing exercise is clear from the decision of 2 June 2008 (exhibit 29) which explains in detail the precise balancing exercise which was in fact carried out. [4] The second part of the challenge embraced within ground (q) – alleged failure to give due weight to the risk, etc – is also an irrationality challenge. In light of the closely reasoned decision of 2 June 2008 I do not consider that this raises even an arguable case. The weight to be attached to the risk and the value to the Inquiry of disclosure were manifestly at the forefront of the Inquiry's deliberations. See for example paras 8 et seq. of the decision. [5] The Inquiry, applying the correct test, concluded that the increased risk arising from dissemination would not lead to a real and immediate risk to life. The positive obligation under article 2 of the Convention arises only when the risk is "real and immediate". A real risk being one that is objectively justified and an immediate risk being one that is present and continuing –see para 20 of Lord Carswell's judgment in Re Officer L [2007] UKHL 36.As Lord Carswell pointed out in the same paragraph "it is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high."[emphasis added].The Inquiry concluded on the basis of the material before it that this high threshold had not been met. The applicant has not demonstrated any flaw in the tribunals reasoning and has failed to demonstrate, even arguably, that the decision to disseminate certain sensitive material is unlawful.
Decision not to disclose witness statements adverse to the applicant
[6] Inter alia at paragraph 15 of its decision the Inquiry has said that in accordance with the Salmon principles the applicant will be warned of any matters or questioning that may form the basis of criticism of him by the Inquiry and that this will be done well in advance of his giving evidence at the Inquiry. However the Inquiry has already indicated in its letter of 28 May 2008 and again at paragraph 15 of its decision that "it is very unlikely that the Inquiry will in fact have any criticisms to make of X". In the letter of 28 May 2008 the Inquiry stated:"Regretfully, it is unavoidable that your client's name should be mentioned in the Inquiry proceedings given that Mrs Nelson represented him and was for a time, together with her husband, X's landlord. However, I must emphasise that neither the truth of any accusation made against X, nor the basis or morality of any adverse views of X are the focus of the Inquiry's interest. The Inquiry is interested only in the contemporaneous existence of attitudes towards X in so far as they informed their investigation into Rosemary Nelson's murder.
It follows from my comments above that X is very unlikely to be criticised at this Inquiry."[7] Earlier in its decision the Inquiry stated as follows –
"10. In your submissions, a complaint is made on behalf of your client that he has not been provided with any of the statements of any witnesses who may, in due course, give evidence in relation to the intelligence material.
11. As stated in our letters dated 8 April 2008 and 1 May 2008 the Inquiry is not prepared to provide X with copies of the Inquiry Bundle or the witness statements. X is not a Full Participant to the Inquiry, he is a witness and as such he has no procedural entitlement to receive such documents; although, as and when X is called to give evidence, it may be appropriate to show him copies of relevant documents on which his questioning will be based."
It is to be noted that the applicant has in fact been given the opportunity, which has been availed of, of inspecting the intelligence material and making notes thereon.
[8] As recorded at paragraph 13 the Inquiry has re-emphasised that it has no authority to adjudicate on criminal liability and has no intention of determining whether the suggestions made in the intelligence material are true. It considers that the "aspersions" cast against the applicant are relevant to the Inquiry's terms of reference only in so far as they may have resulted in hostility or compromise to the safety of Rosemary Nelson. The Inquiry will not be investigating the truth or falsity of those aspersions nor will the Inquiry be making any allegations against the applicant. [9] I am not persuaded that at this stage it has been demonstrated, even arguably, that the Inquiry has in any way acted unlawfully or unfairly in failing to disclose the material sought. As the Inquiry has pointed out the applicant is a witness not a Full Participant and the procedural rules (which have not been challenged) do not give him any entitlement to the documents sought. The context here is of vital importance in deciding this aspect of the challenge. The truth of the assertions is not in issue and no allegations are being made by the Inquiry against the applicant. They are only relevant to the Inquiry's terms of reference in the manner summarised in the preceding paragraph. Although not specifically stated it would appear that the applicant can only realistically seek these documents in order to try and engage in an adversarial challenge to the truth or weight of the allegations. Such an exercise would not, of course, be permitted by the Inquiry. And mere interest in the contents of documents, no matter how acute, cannot of itself give rise to a procedural entitlement such as to require the Inquiry as a matter of public law to provide the material.Refusal to grant the applicant legal representation
[10] Having regard to the terms of the letter of 4 June 2008 from the Inquiry to the applicant's solicitor I am satisfied that, as the proposed Respondent contended, this aspect of the challenge is indeed premature. [11] The letter states, inter alia:"Thank you for your letter of 30 May 2008 (which I received yesterday) renewing your request for witness representation for Mr X. It is my intention to put this request to the Inquiry panel this week and to revert to you in due course with their decision . . . [the letter then addresses a number of issues raised in earlier correspondence and continues] Bearing this in mind, I would be grateful if you would identify the adverse criticism/prejudicial evidence which you consider has been made against Mr X, how such matters bear upon the Inquiry's list of issues and how Mr X and the Inquiry would be assisted by a grant of legal representation. I would also be grateful for clarification of the exact nature of the assurances you say were made to Mr X at the time of his interview by the Inquiry."[12] As matters stand at the present it appears that the renewed request for witness representation is under active consideration, that the applicant has been requested to deal with the matters referred to in the passage quoted above but that, as yet, the applicant has not written to the Inquiry in response. [13] Until the process has been complete and a final decision has been arrived at by the Inquiry I consider that any judicial review challenges on this ground is premature. [14] Leave is therefore refused.