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Jordan v The Chief Constable of the PSNI [2019] NICA 61.  15 November 2019 (judgment here)

The latest instalment of the long running Pearse Jordan inquest saga provides an important warning to all coroners and other public bodies involved in Article 2 investigations where there is delay in coming to inquest because of shortcomings on the part of a public body (including the court).

Mr Jordan’s family have now had their second award of damages upheld by the Northern Irish Court of Appeal. The appeal court found that a sum of £5,000 represented ‘just satisfaction’ for the exacerbation of the bereaved’s ‘feelings of frustration, anxiety and distress’ arising from 14 months of culpable delay in bringing the case to inquest.   This assessment of damages took into account that an award of £10,000 had already been made by the European Court of Human Rights in 2001 as compensation for earlier delays in investigating Mr Jordan's death.

Brief background

Pearse Jordan, had been shot and killed by a member of the Royal Ulster Constabulary in 1992. His father made an application to the European Court of Human Rights (“ECtHR”), complaining that the state’s failure to carry out a prompt and effective investigation into his son’s death was a violation of Art 2 ECHR. In 2001 the ECtHR upheld Mr Jordan’s complaint and awarded him £10,000 in respect of non-pecuniary damage. [1]

Following the judgment of the ECtHR there was further and extensive domestic litigation in relation to various aspects of the procedure which should apply in the Northern Irish Coroner’s Court.  Eventually an inquest into the death was held which concluded in 2012. Proceedings for judicial review of the conduct of that inquest resulted in the verdict being quashed in 2014.[2]  A further inquest concluded in 2016. 

The delay claim

Meanwhile, in 2013 Mr Jordan had brought proceedings for judicial review in which he sought declarations that the Coroner and the Chief Constable of the Police Service of Northern Ireland (“PSNI”) had been responsible for further delays since 2001 in the commencement of the inquest - in further violation of his Art 2 rights. 

Stephens J upheld the claim against the PSNI, finding that the repeated delays in commencing the inquest were due to, amongst other matters, deficiencies in the Northern Irish Coroners Rules and to a series of failures of the PSNI to obtain or disclose relevant information and provide documents that they sought to the next of kin. The judge found that the PSNI had created obstacles and difficulties which prevented progress in the inquest and had also not reacted appropriately to other obstacles and difficulties. Issues over redacted documents had remained unresolved until May 2008 and the PSNI had failed to devise a process of risk assessment for anonymity applications which was responsible for the further adjournment of the inquest.   Stephens J therefore made a declaration that the PSNI had “delayed progress of the Pearse Jordan inquest in breach of Article 2 of the European Convention on Human Rights and contrary to s.6 of the Human Rights Act 1998” (‘HRA’).

In awarding damages under s.8 HRA against the PSNI the judge held that that where one public authority before the court had not complied with any aspect of the requirement of promptness and reasonable expedition and another public authority not before the court had also been responsible for delay, the award of damages should not be reduced, as it was for the state body before the court to seek a contribution if it wished from the other state authority. Damages of £7,500 were awarded.[3]  (See our earlier blog here discussing the initial award and subsequent stay)

The PSNI appealed against the declaration and award of damages, contending that although the PSNI might have been responsible for part of the delay, they should not have orders made against them where other state authorities had also been responsible for the delay but were not party to the proceedings. 

The Decision

The Court of Appeal considered s.8 HRA which provides that where a public authority has been found to have acted in breach of ECHR rights a court may grant such relief or remedy or make such order as it considers just and appropriate. Damages under HRA can be awarded by any court which has the power to award damages in civil proceedings.

The Court noted that two public authorities might each be responsible for the same period of delay or alternatively each may be responsible for separate or sequential periods of delay.   In a delay claim it was necessary to make a finding of the unlawful acts of the relevant public authority and identify any period of delay for which those unlawful acts bear any responsibility.  

The period of delay in respect of which this claim was made ran from 2001 until the first inquest commenced in 2012. In the period from 2002 until 2007 there had been ongoing litigation concerning the obligation of the PSNI under s.8 Coroners Act (Northern Ireland) 1959 to supply to the Coroner with information.  The PSNI had been successful before the Court of Appeal in limiting that obligation. Although its position was subsequently established as being unlawful in the House of Lords, being in breach of s 8 of the 1959 Act, it did not follow that the PSNI had been responsible for culpable delay in breach of the procedural obligation under Art 2 as the delay arose from the prolongation of proceedings in which the PSNI appeared to have engaged appropriately.

The Culpable Delay

However, the Court of Appeal found that there had been further unlawful delay from March 2007 until May 2008 when the relevant documents were provided by the PSNI.    The PSNI was therefore responsible for this delay of 14 months, in breach of Art 2.

Delays of this duration could give rise to an award of damages pursuant to Art. 41 ECHR. When determining appropriate damages the Court of Appeal noted that although this was one part of a much longer non-culpable delay the persisting failure of the PSNI to honour its legal obligations would still have exacerbated the bereaved parents’ feelings of frustration, anxiety and distress.  When set against a background of already very lengthy delay this made it just and appropriate to afford ‘just satisfaction’ under the HRA by way of damages.

The persisting failure of the PSNI to honour its legal obligations exacerbated the bereaved parents’ feelings of frustration, anxiety and distress.

The level of damages had to take into account the relatively short period for which the PSNI was responsible and the fact that the family of the deceased had already received an earlier pecuniary award of £10,000. Having considered other awards under Art 2 for failure to act with promptitude the court considered that an award of £5,000 would be consistent with other awards and so substituted that figure for the larger sum that had been allowed by the judge.

Comment

This case should be a wake-up call for all those coroners with long-standing cases in their lists where Art 2 investigative obligations are engaged.   Albeit this is a decision from a Northern Irish court, the HRA principles enunciated here are likely to apply equally in England and Wales.   Unless there are justifiable reasons for a coroner not bringing a case to an inquest then damages awards could be made against both that coroner and any other public body that has contributed to the delay by their own inaction.

Where periods of culpable delay are established it will not help to argue that there have also been other reasons for other periods of delay.   The prolonged legal proceedings that coloured the background to this case were, for many years, due to the bereaved bringing judicial review challenges to the inquest.  However, as the European Court already recognised[4]  it cannot be regarded as unreasonable for a party to make use of the legal remedies available to him to challenge aspects of the inquest procedure.  Similarly, the PSNI was not considered responsible for those periods in which it too was legitimately pursuing legal proceedings in order to establish clarity about its disclosure obligations.  It was the PSNI’s failure to meet those obligations for a further 14 months that represented the Art 2 breach here.

The ECtHR had already found two separate periods of eight months culpable delay in proceeding with the inquest which had justified an award of £10,000 against the UK. Over a decade then passed between the judgment of the ECtHR in 2001 and the commencement of the inquest in 2012.  Perhaps it was these quite exceptional circumstances that justified a further award of £5,000 damages arising from the specific period of in-action from March 2007 to May 2008.

Unlike cases in tort, a monetary award of damages is not automatic under s.8 HRA.  Damages will only follow if the frustration and distress caused by delay makes it “just and appropriate" to afford satisfaction by way of damages.  However in Mr Jordan’s case the court was content to infer, without any evidence, that such distress had been caused.  As Stephens J put it “the investigation into the death of a close relative impacts on the next of kin at a fundamental level of human dignity.  It is obvious that if unlawful delays occur in an investigation that this will cause feelings of frustration, distress and anxiety to the next of kin”.

 

Footnotes

[1] Jordan v UK (2003) 37 EHRR 2.

[2] [2014] NIQB 11 – see also the appeal dismissed at [2014] NICA 76

[3] [2014] NIQB 71.

[4] Jordan v UK (2003) 37 EHRR 2 at [138].