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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 >> Hawthorne & Anor v Judicial Review [2018] NIQB 91 (26 November 2018)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2018/91.html
Cite as: [2018] NIQB 91
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- This addendum to my final judgment and Order, promulgated on 12 March 2018, is provided at a stage when the first instance phase of these proceedings remains uncompleted. This addendum has not been brought to the attention of the Judge who is dealing with the single issue being re-argued by the parties pursuant to my ruling of 26 January 2018 and in respect whereof I understand that judgment stands reserved. I prepared this text in April 2018 when the Ombudsman's Notice of Appeal came to my attention. I have purposely deferred dissemination, awaiting promulgation of the further judgment arising out of the partial re-hearing conducted in the same month. This addendum judgment does not touch on any issue of substance. It is, rather, strictly confined to certain issues of procedure which must be fully illuminated and understood by all concerned in the light of the Ombudsman's Notice of Appeal. In seeking to ensure that misunderstanding and misconception are avoided, the Court endeavours to give full effect to the overriding objective.
- The timing of promulgation has, ultimately, been dictated by the imminent listing in the Court of Appeal
- This formulates two broad grounds. The first of these complains about those aspects of the final order of the Court relating to the second Applicant, Mr White. The cornerstone of this ground of appeal is that the Court's final order ventures beyond the boundaries of the grant of permission to apply for judicial review. Specifically, it is asserted that Mr White –
- Having reviewed the trial bundles provided to me, the parties' skeleton arguments and my notes of the hearing, I observe:
- The beginning of the aforementioned phase was heralded by the promulgation of the Court's substantive judgment on 21 December 2017. The judgment identified two grounds of challenge under the headings of "The Vires Ground of Challenge", at [70]– [103] and "The Second Ground: Procedural Unfairness" at [104]–[115]. The Ombudsman's appeal relates to the second ground. I refer particularly to [112]–[115] of the judgment:
- The Court's management of the aforementioned phase generated a total of five interlocutory Orders and, ultimately, its final Order dated 09 March 2018. All of these Orders are appended. The fourth of the aforementioned interlocutory Orders is dated 06 March 2018 and is in these terms:
- If there is a judgment and/or order of Maguire J containing the limitation asserted in the Notice of Appeal, taking into account the general approach of courts (this Court in particular) in the public law world of judicial review proceedings and having regard to the judgment promulgated on 21 December 2017, if and insofar as a formal amendment of the Applicant's pleaded case should have been requested it is difficult to conceive of judicial refusal.
- The limited task which the Court has set itself in [1] above does not encompass the second of the identifiable grounds of appeal, at paragraphs 2.2 – 2.8 of the Notice, which challenges one aspect of the exercise of the Court's discretion in the matter of costs.
- The Applicants' written representations on the issues of remedy and costs will be provided on or before the close of business on 3 January 2018,
- The Respondent file their reply on or before the close of business on 10 January 2018,
- Paragraph [2] applies also to the interested parties. The court extends their written intervention accordingly,
- The matter shall be listed on 12 January 2018 at 9.45 am before the assigned Judge and;
- The costs of this application shall be reserved until the conclusion of the Judicial Review proceedings.
- The parties' written representations and those of the interested party ('IP'), on the issues of remedy and costs have been considered, with thanks.
- It appears to the court that an order quashing the report is not the sole live option.
- There is also, in principle, the option of an order incorporating the following ingredients:
- Declaring the court's findings/conclusions on the law viz re vires & procedural fairness ; and
- Ordering [mandamus] the erasure from the report of the passages which offend against the above i.e. the two chunky 'collusion' sections [pp 5 – 7 AND pp 138 – 146 and "ALLEGATION 5" @ p148]; and the 'Hawthorne specific' passages i.e. paras 5.7, 5.82 & 7.113/7.114 AND "ALLEGATION 7" @ pp149/150 ; and the re - promulgation of the cleansed report by X date
- Quashing [certiorari] said passages.
- Comment: the above exercise, arguably, results in a revised but perfectly coherent & comprehensible report, while also reflecting the limited nature of the Apps' challenge and resulting success. It also furthers certain other uncontroversial public interests. Provisionally, the key points possibly are that that the surviving text is unremittingly lawful in all respects, thereby qualifying for preservation, while the Apps receive a remedy that vindicates adequately their litigation success and is proportionate and the principle of practical and effective remedies is fully respected.
- If either party or the IP wishes to address this further option they are at liberty to do so.
- ) The Court's understanding of the most recent submissions and evidence of the parties is that the only issue to be re-litigated at a further hearing is that addressed in [70] – [103] of the judgment and the corresponding third conclusion in [118]. The final Order is being drawn up accordingly and will be promulgated by the Court at a listing on Friday 9 March 2018 at 10.15 am.
- By its judgment delivered on 22 December 2017 this Court decided as follows:
- Finally, the Court decided that the Police Ombudsman's "determination" of police collusion in the Loughinisland murders is unsustainable in law as it was not in accordance with the Ombudsman's statutory powers: see [70] – [103] and the corresponding conclusion in [118].
- The Police Ombudsman was required by the Court's Order of 26 January 2018 to take certain steps. The Court has now seen certain inter – partes letters, which state:
- The purpose of the Court's Order of 26 January 2018 was to identify and refine the issues to be considered in the event of any relisting of this case. The effect of the Police Ombudsman's letters is that none of the issues identified in [1] above is any longer in dispute. The only disputed issue is that specified in [2] above. The net result is unqualified success for Mr Hawthorne in his legal challenge. For the avoidance of all doubt, this court's extant judgment takes full effect, with the exception of [2] above. The judgment will be re-promulgated to make this clear.
- There are two discrete ancillary issues on which the parties' representatives have joined issue, requiring adjudication by the Court in consequence. The first is whether the Court should make a declaration enshrining and reflecting its assessments, findings and conclusions which have given rise to the Police Ombudsman's concessions reflecting [1] and [3] above. The main governing principles are outlined in [124] – [125] of the Court's judgment. A declaration would both vindicate Mr Hawthorne's unqualified success in his legal challenge and provide him with a coherent and unambiguous judicial statement of the elements of his success. It would also further the aforementioned principles. I have no hesitation in confirming that the Court should make a declaration: see [12] below.
- The second contentious issue is that of costs. The Police Ombudsman's proposal that Mr Hawthorne recover 50% only of his costs airbrushes all of the foregoing, in particular the unassailable assessment that Mr Hawthorne's legal challenge has succeeded in full and blithely ignores the statements in [68] – [69] of the Court's judgment:
- As the summary in [1] above demonstrates, the wider challenge brought by Mr White on behalf of retired police officers generally has similarly succeeded, leaving only for re-litigation the issue specified in [2]. The fact that there will be re-litigation of one further issue which the Court determined in favour of Mr White and his Association cannot operate to displace the general rule that costs follow the event. They are not to be faulted for the postponement of one aspect of the ultimate "event" ie [2] above. Furthermore Mr White and his Association incurred substantial additional costs in successfully resisting the post-judgment recusal application unsuccessfully pursued by the Police Ombudsman. To this must be added the Court's unreserved criticism of the Ombudsman's conduct of such application and the proceedings generally. In the alternative this may be viewed through the 'wasted costs' prism. The conclusion that Mr White is entitled to recover his costs incurred to date, in full, follows with equal clarity.
- The Police Ombudsman's retreat from his initial position (offering 50% of Mr Hawthorne's costs) to a later position (suggesting deferral of all cost issues) may be considered symptomatic of many of the shortcomings which have characterised the Ombudsman's conduct of these proceedings, dating from the filing of wholly inappropriate affidavits at a much earlier stage. Furthermore, the Court is bound to deprecate the attempted imposition of a condition that Mr Hawthorne receive 50% (only) of his costs in return for withdrawing from these proceedings. The Court considers this attempt to thwart Mr Hawthorne's constitutional right of access to the court quite improper.
- This Court is better equipped and positioned to make a fully informed judgment of all of the complex and multi-layered issues bearing on the resolution of the parties' costs dispute than any other Court could conceivably be at some unspecified future date. The Ombudsman's belated deferral suggestion is therefore rejected. Finally, the resolution of all costs incurred to date at this stage is manifestly in furtherance of the overriding objective.
- To summarise, the Police Ombudsman will pay all of both Applicants' reasonable legal costs and outlays incurred to date, to be taxed in default of agreement.
- There will be a relisting before an appropriately constituted Court on 23 and 24 April 2018 for the purpose of re-examining this Court's conclusions relating to the content and scope of the Police Ombudsman's statutory powers in [70] – [103] of its judgment and the related conclusion in [118]: see [2] above.
- IT IS HEREBY DECLARED THAT the Police Ombudsman's Loughinisland Murders "Public Statement" is unlawful in all of the following respects, as cross-referenced to the corresponding passages in the judgment of the Court delivered on 22 December 2017;
- These are:
Ref: McC10734
JR 16/68976
Neutral Citation No: [2018] NIQB 91
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Promulgated: 26/11/18
-v-
McCloskey J
Introduction
The Ombudsman's Notice of Appeal
"… was expressly refused leave to pursue any challenge on grounds of procedural fairness as reflected in the written judgment of Maguire J …."
(a) The trial bundles did not contain any judgment of Maguire J.
(b) Nor did they contain the Judge's leave order.
(c) The limitation canvassed in the Notice of Appeal did not feature in any parties' skeleton argument at the stage of the substantive hearing.
(d) Nor did it feature in any of the multiplicity of electronic communications, letters, further written submissions and further hearings which materialised during the post-judgment phase which culminated in the Court's ruling dated 26 January 2018, followed by its final order dated 12 March 2018.
(e) Throughout the last mentioned phase there was a succession of inter-partes hearings at which the Ombudsman was represented by senior and junior counsel and which involved both written and oral submissions relating to the issues of final order and remedy. In short, the limitation now canvassed belatedly on behalf of the Ombudsman was not raised at any stage in the proceedings before me.
"[112] I now turn to consider the broader panorama which arises by virtue of the representative challenge brought by the second Applicant, Mr White. The analysis that the Police Ombudsman's report contains condemnations of criminal conduct of the utmost gravity on the part of multiple police officers is, in my judgement, irresistible. I repeat that these are not couched in the language of suspicion, belief, impression or opinion. They are, rather, formulated as findings, determinations and conclusions. Foremost among these is the Police Ombudsman's unambiguous determination that RUC officers had engaged in collusion with the UVF terrorists who committed the Loughinisland murders.
[113] In my judgement, it matters not that the police officers thus condemned are not identified. There is no suggestion that they would be incapable of being identified. Further, and in any event, as a matter of law it suffices that the officers condemned by the Police Ombudsman have identified themselves as the subjects of the various condemnations. Procedural fairness, in this kind of context, cannot in my view depend upon, or vary according to, the size of the readership audience. If there is any defect in this analysis it is of no consequence given that the overarching purpose of the conjoined challenge of the second Applicant, Mr White, belongs to the broader panorama of establishing that reports of the Police Ombudsman couched in the terms considered exhaustively in this judgment are unlawful as they lie outwith the Ombudsman's statutory powers.
[114] The somewhat different challenge brought by Mr White, imbued by corporate and broader ingredients, gives rise to the following conclusion, declaratory in nature. Where the Police Ombudsman, acting within the confines of his statutory powers, proposes to promulgate a "public statement" which is critical of or otherwise adverse to certain persons four fundamental requirements, rooted in common law fairness, must be observed. First, all passages of the draft report impinging directly or indirectly on the affected individuals must be disclosed to them, accompanied by an invitation to make representations. Second, a reasonable period for making such representations must be permitted. Third, any representations received must be the product of conscientious consideration on the part of the Police Ombudsman, entailing an open mind and a genuine willingness to alter and/or augment the draft report. Finally, the response of the individual concerned must be fairly and accurately portrayed in the report which enters the public domain.
[115] If and to the extent that the requirements formulated above were not observed by the Police Ombudsman in respect of any affected police officer procedural unfairness occurred. Beyond this the court does not venture since, as highlighted more than once, Mr White's challenge is representative in nature and the only individual factual framework which the court has considered is that pertaining to Mr Hawthorne."
"The Court's understanding of the most recent submissions and evidence of the parties is that the only live issue to be re-litigated at a further hearing is that addressed in [70]–[103] of the judgment and the corresponding third conclusion in [118]."
This interim Order was formulated at a stage when the Court was endeavouring to devise its final Order. The Ombudsman did not challenge or question this Order at any time. It remains the Court's understanding, based on evidence provided, including the revision and re-publication by the Ombudsman of the Loughinisland Report, that the procedural fairness issue which the Court determined in the Applicants' favour was (a) fully acknowledged and conceded by the Ombudsman's post-judgment conduct and (b) did not feature in the further first instance hearing which materialised in April 2018. It is this Court's understanding that the latter further hearing was confined to the first ground of challenge (the vires issue) and did not encompass the procedural fairness ground.
UPON THE MATTER having being in the list for Judgment this day,
AND UPON READING the documents recorded on the Court file as having been read,
AND UPON HEARING Counsel for the Applicant and Counsel for the Respondent and Counsel for the Notice party,
IT IS ORDERED that;
[ ]
Proper Officer
Time Occupied: 21 December 2017 20 mins
Filed Date 28 December 2017
UPON THE MATTER having been considered in chambers this day by the Senior Judicial Review Judge,
AND UPON READING the documents recorded on the Court file as having been read,
IT IS ORDERED that;
………………………… with or without also ……………
[ ]
Proper Officer
Time Occupied: 11 January 2018 0 mins
Filed Date 11 January 2018
UPON THE MATTER being in the list this day for Hearing,
AND UPON READING the documents recorded on the Court file as having been read,
AND UPON HEARING Counsel for the Applicant and Counsel for the Respondent and Counsel for the interested party,
IT IS ORDERED that;
1. Any party to these proceeding should make any application by the way of summons and affidavit on or before the close of business on Wednesday 17 January 2018,
2. The Applicant and Respondent shall file any further written response to the issue of remedies on or before the close of business on Wednesday 17 January 2018,
3. The Respondent shall file any further affidavit on or before the close of business on Wednesday 17 January 2018,
4. The matter shall be listed for Hearing on Friday 17 January 2018 at 9.45 am before the assigned Judge,
5. The parties shall have liberty to apply and;
6. The costs of this application shall be reserved until the conclusion of the Judicial Review proceedings.
[ ]
Proper Officer
Time Occupied: 12 January 2018 25 mins
Filed Date 23 January 2018
UPON THIS MATTER having being considered in chambers this day by the Senior Judicial Review Judge,
AND UPON READING the documents recorded on the Court file as having been read,
IT IS ORDERED that;
[ ]
Proper Officer
Time Occupied: 6 March 2018 0 mins
19 January 2018 2 hours
Filed Date 6 March 2018
UPON THE MATTER having being considered in chambers this day by the Senior Judicial Review Judge,
AND UPON READING the documents recorded on the Court file as having been read,
IT IS ORDERED that;
1. Given the history of these proceedings, further delay is not acceptable to the Court, which will give precedence to its duties to the parties and the public, as required by the overriding objective,
2. The Police Ombudsman for Northern Ireland has been extensively accommodated by the Court and has had ample time to deal with all ancillary issues,
3. It is noted that only one member of the Police Ombudsman for Northern Ireland legal team is unavailable, choosing to give priority to something else unspecified,
4. The Court has other cases listed on the alternative dates proposed,
5. The message expressed loudly in [192] of the Court's Judgment is being blithely ignored,
6. On the grounds in [1]–[4] above the Police Ombudsman for Northern Ireland request to vacate the listing on 9 March 2018 is refused,
7. The Court requires full particulars of the Respondent's email dated 7 March 2018 by 14.00, 08 March 2018,
8. There has still, intolerably, been no proper compliance by the Police Ombudsman for Northern Ireland with the Court's Order of 28 Jan, paras [192 – 193].
9. The Court has taken the initiative and will not be obstructed further by the Police Ombudsman for Northern Ireland. There will be no adding to the gross waste of public resources which, lamentably, has already occurred and;
10. The listing at 10.00 am on 9 March 2018 hereby affirmed.
[ ]
Proper Officer
Time Occupied: 7 March 2018 0 mins
Filed Date 8 March 2018
UPON MOTION pursuant to Notice dated 13 June 2017 made to this Court on 1, 2, 14 December 2017 and 12 January 2018, by Counsel on behalf of Thomas Hawthorne and Raymond White (hereinafter referred to as "the Applicants") for Judicial Review,
AND UPON READING the documents recorded on the Court file as having been read,
AND UPON HEARING Counsel for the Applicant and Counsel on behalf of the Police Ombudsman for Northern Ireland, the Respondent and Counsel on behalf of Aidan O'Toole, the interested party,
(a) The first Applicant, Mr Hawthorne, is readily identifiable in the Police Ombudsman's Loughinisland "Public Statement" (the "Report") as the person to whom various criticisms and negative findings relating to the storage and disposal of the suspected murder vehicle and the simultaneous loss of an interior exhibit apply: see [67].
(b) Mr Hawthorne is vindicated unreservedly of any accusation, finding or determination of catastrophic failures in the original police investigation or collusion: [67] – [68].
(c) The Report fell short of acceptable standards and quality and was thus antithetical to the statutory purposes: [68] – [69].
(d) In consequence of these failings on the part of the Police Ombudsman Mr Hawthorne has suffered unjustified severe public criticism: [118].
(e) The Police Ombudsman's portrayal of Mr Hawthorne's response to the inadequate disclosure made to him before publication of the report was inadequate and inaccurate: [110].
(f) The Report's "determination" that Mr Hawthorne was guilty of an "act of negligence" vis-à-vis the storage and disposal of the suspected murder vehicle and the loss of an interior exhibit are unlawful, being in breach of the legal requirements of procedural fairness.
(g) Mr Hawthorne's status at all stages of the Ombudsman's Loughinisland investigation was that of mere "witness": [110].
(h) The Police Ombudsman failed to take proper investigatory steps regarding the matter of which Mr Hawthorne was accused: [109] and [110].
(i) Turning to the broader, representative challenge of the second Applicant, Mr White, certain fundamental requirements of procedural fairness must be observed by the Police Ombudsman in every case where it is proposed to promulgate a "public statement" which is critical of or otherwise adverse to certain persons: [113] – [114].
(j) If and to the extent that any of these requirements was not observed in the compilation of the Report the vitiating factor of procedural unfairness occurred: [114] – [115].
(i) Those passages in the Report reflecting adversely on Mr Hawthorne will be removed: see [131](d) – (f) of the judgment of the Court.
(ii) The Report will be amended to include an unambiguous statement that no personal negligence is attributable directly to Mr Hawthorne. Ditto none of the investigatory failures identified in the Report.
(iii) In furtherance of (ii), the "Collusion" section of the Report [7] will be amended.
(iv) Reflecting all of the above, the Police Ombudsman will publish an amended Loughinisland investigation "Public Statement".
Pausing, it is clear that the Ombudsman has accepted the relevant exhortations in the court's judgment.
"The above conclusions ……… vindicate Mr Hawthorne unreservedly. However, it should not have been necessary for Mr Hawthorne to initiate legal proceedings of this kind in order to secure the judicial analysis, conclusions and vindication of which he is now the beneficiary …
The authors of the report were careless, thoughtless and inattentive in the language and structuring of the document …. A report of acceptable standards and quality would have had no potential for the lengthy reflection and debate which have arisen …."
The Police Ombudsman spurned repeated opportunities to make the concessions ultimately afforded, from the pre-action stage onwards. The conclusion that Mr Hawthorne is entitled to recover his costs in full follows inexorably. The Police Ombudsman's offer of 50% manifestly fails to engage with the realities.
Declaration
(a) The first Applicant, Mr Hawthorne, is readily identifiable in the Report as the person to whom various criticisms and negative findings relating to the storage and disposal of the suspected murder vehicle and the simultaneous loss of an interior exhibit apply: see [67].
(b) Mr Hawthorne is vindicated unreservedly of any accusation, finding or determination of catastrophic failures in the original police investigation or collusion: [67] – [68].
(c) The Report fell short of acceptable standards and quality and was thus antithetical to the statutory purposes: [68] – [69].
(d) In consequence of these failings on the part of the Police Ombudsman Mr Hawthorne has suffered unjustified severe public criticism: [118].
(e) The Police Ombudsman's portrayal of Mr Hawthorne's response to the inadequate disclosure made to him before publication of the Report was inadequate and inaccurate: [110].
(f) The Report's "determination" that Mr Hawthorne was guilty of an "act of negligence" vis-à-vis the storage and disposal of the suspected murder vehicle and the loss of an interior exhibit are unlawful, being in breach of the legal requirements of procedural fairness.
(g) Mr Hawthorne's status at all stages of the Ombudsman's Loughinisland investigation was that of mere "witness": [110].
(h) The Police Ombudsman failed to take proper investigatory steps regarding the matter of which Mr Hawthorne was accused: [109] and [110].
(i) Turning to the broader, representative challenge of the second Applicant, Mr White, certain fundamental requirements of procedural fairness must be observed by the Police Ombudsman in every case where it is proposed to promulgate a "public statement" which is critical of or otherwise adverse to certain persons: [113] – [114].
(j) If and to the extent that any of these requirements was not observed in the compilation of the Report the vitiating factor of procedural unfairness occurred: [114] – [115].
The Court records that the Ombudsman has now [9 March 2018] re-promulgated his Loughinisland Report in accordance with the Court's Judgment: see [1] above.
Formal Ancillary Provisions
(i) The substantive judgment of the Court delivered on 21 December 2017 takes effect in the manner elaborated in [1] – [4] above
(ii) There shall be no Order regarding the costs of the interested party, save that same be taxed in accordance with Schedule 2 to the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981.
(iii) The Applicants' skeleton argument for the relisted hearing shall be provided by 23 March 2018.
(iv) The Respondents' replying skeleton argument shall be provided by 30 March 2018 and that of the interested party by 9 April 2018.
(v) The revised version of the Respondents' Loughinisland Report, intimated in its aforementioned letters, shall be both [1] published and [2] provided to the Applicants' solicitors and the Court, in the form of a supplementary bundle, by 16 March 2018.
(vi) One fresh set of the extant trial bundles will be provided by the Respondent to the Court by 23 March 2018.
(vii) Confirmation that the authorities' bundles remain unchanged will be provided to the Court by the same date.
(viii) There will be one final procedural listing at 9.45, 12 April 2018.
[ ]
Proper Officer
Time Occupied: 9 March 2018 1 hour
Filed Date 14 March 2018