Belfast Telegraph

Northern Ireland judge warns inquests into death involving alleged state collusion could go on until 2040

Alan Erwin

Inquests into scores of deaths involving alleged state collusion and cover-up could go on until 2040 unless the coronial system is changed, Northern Ireland's top judge warned today.

Lord Chief Justice Sir Declan Morgan described current arrangements for dealing with so-called legacy cases as unsatisfactory, "lamentable" and not working.


Suggesting the Historical Institutional Abuse Inquiry as a potential blueprint for providing an effective remedy, he said: "Unless a solution is achieved we will continue to incur considerable public expense in legal challenges and claims for compensation."


Sir Declan's appraisal came as he delivered reasons for upholding a decision to quash the verdict in the inquest into the police shooting of an IRA man 22 years ago.


The ruling, by three senior judges at the Court of Appeal in Belfast, clears the way for a new hearing on the circumstances surrounding the death of Pearse Jordan.


Their verdict was based on the non-disclosure to next of kin of reports into allegations of a shoot-to-kill policy operated by the security forces.
Pearse Jordan was killed in disputed circumstances on the Falls Road in west Belfast in 1992.


His death was one of several high-profile cases in Northern Ireland involving claims that the RUC were involved in shoot-to-kill incidents.
In October 2012, a long-delayed inquest failed to reach agreement on key aspects.


The jury was split on whether reasonable force was used in the circumstances, the state of belief on the part of the officer who fired the fatal shots, and whether any alternative course of action was open to him.


The dead man's father, Hugh, then mounted a wide-ranging judicial review challenge to the outcome.


In January a High Court judge ruled that the inquest verdict should be quashed on a number of grounds, including the failure to disclose the Stalker/Sampson reports into other so-called shoot to kill cases and the decision to sit with a jury.


Amid fears of a potentially perverse verdict being reached in such a contentious inquest, the judge held that a new tribunal into Pearse Jordan's death should sit without a jury.


The PSNI was also held responsible for a delay of up to 11 years in holding the original hearing.


A £7,500 compensation award was subsequently made to the Jordan family.


Wide-ranging challenges to the High Court outcome were mounted by the Chief Constable and the coroner.


But the three appeal judges concluded last month that the decision to quash the first inquest's findings was justified.


Sir Declan agreed that the coroner had been wrong about the potential relevance of the Stalker/Sampson reports.


Deciding that a Police Ombudsman report into the PSNI shooting of Neil McConville in 2003 could not be deployed at the inquest amounted to a further error, the court held.


Setting out further reasons for the decision today, Sir Declan said it was with "limited enthusiasm" that the court was directing the case be remitted to a different coroner.


"Despite the unsatisfactory nature of the present coronial system no material step has been taken to address this lamentable state of affairs and there is no realistic prospect of the present Assembly legislating to resolve this situation before the expiry of its present mandate in May 2016," he said.


It could be close to 2020 before appropriate legislation reflecting the impact of the European Convention on Human Rights (ECHR) is put in place, he predicted.


Sir Declan claimed it is impossible for the coroner to carry out an inquisitorial role to establish the truth, identify wrongdoing and learn lessons for the future without having coroners' officers to assist with investigations, powers to take statements and secure documents and appropriate procedural rules to govern public hearings.


The impact of these deficiencies has been most pronounced in legacy inquests, according to Sir Declan.


To date this group includes 51 cases involving 78 deaths plagued by allegations of state involvement and issues such as the murder of suspected terrorists, collusion, planning and control, individual error and cover up.

 
With the deaths ranging from 1971 to 2005, the Chief Justice noted the absence of adequate powers and procedures have resulted in the inquests becoming "an adversarial battleground instead of a Coronial-led inquiry". 


In the Jordan case alone there have been 24 judicial reviews, 14 referrals to the Court of Appeal, two hearings in the House of Lords and one before the European Court of Human Rights.


Sir Declan said: "If the existing legacy inquests are to be brought to a conclusion under the present system someone could easily be hearing some of these cases in 2040."


Although he acknowledged it was not the court's role to determine how the UK honours its ECHR investigatory obligations in legacy cases, Sir Declan warned that the requirement of reasonable expedition will continue to be breached without a new approach.


Pointing to the Historical Institutional Abuse Inquiry as the potential model for an effective solution, he said all legacy cases could be taken out of the inquest system and considered in a time bound inquiry.

Other elements to the suggested way forward included:
:: An inquiry chair with senior judicial experience.
:: Facilities for independent investigation and powers of compulsion in respect of witnesses and documents. 
:: Public Interest Immunity issues addressed by redaction and gisting so families would have a proper opportunity to comment on the evidence.


Sir Declan concluded: "Although we recognise that it is for the Executive and the Legislature to find a solution to this issue it is abundantly clear that the present arrangements are not working.


"Unless a solution is achieved we will continue to incur considerable public expense in legal challenges and claims for compensation such as those arising in this case and the subject of further hearing."

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