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IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
In the matter of an application by
Steven Davis, Seamus McNeill, Tom Woods, Brian Barlow,
Jacqueline Townsend and David Eagleson
for leave to apply for judicial review
And in the matter of a decision of the Secretary of State for Northern Ireland
INTERVENTION BY BRITISH IRISH RIGHTS WATCH
Introduction
This intervention is filed on behalf of British Irish Rights Watch, a non-governmental human rights organisation (NGO).
Brief details of the intervener are set out in the schedule to this intervention.
Leave to intervene in this application has not yet been granted. At the same time as seeking leave to intervene, the intervener is including a copy of the submission it would make if leave was granted, given the tight timeframe within which the application is being considered.
The intervener has frequently expressed concern about the circumstances surrounding the murder of Billy Wright. As a result, the intervener has supported his father David Wright’s call for an investigation into the murder that complies with the requirements of relevant international and domestic human rights law pertaining to the promptness, thoroughness, independence, impartiality and effectiveness of investigations into human rights abuses, in particular, Article 2 of the European Convention on Human Rights (‘ECHR’).
The intervener’s concerns about the circumstances surrounding Billy Wright’s murder arise from the fact that he was in the custody of the state when he was killed, and from evidence that has come to light since his death which has given rise to credible allegations that there was collusion in his murder. In light of this, the intervener considers that, as required by relevant domestic and international human rights law, the circumstances surrounding the murder need to be fully investigated in a manner which complies with the above-mentioned standards[1].
The intervener objects to the instant application for judicial review of a decision by the Secretary of State of Northern Ireland (‘the Secretary of State’) made on 26 June 2007 whereby he declined to amend the terms of reference of the Billy Wright Inquiry (‘the Inquiry’), because of its profound concerns that to restrict the terms of reference at this stage of the Inquiry would result in an inadequate investigation of the murder that fails to comply with the relevant international human rights standards; and would also cause unacceptable and potentially destructive delay to an Inquiry that has already taken ten years to establish and commence hearing evidence.
The Inquiry was established in November 2004, initially under section 7 of the Prison Act (Northern Ireland) 1953. On 25 June 2005, Lord Maclean, the chairman of the Inquiry, announced that he proposed to ask the Secretary of State to convert the Inquiry from one under the Inquiries Act “as the list of issues required examination of matters that go beyond the provisions of the Prison Act.”[2] On 23 November 2005, the Secretary of State issued his decision to convert this Inquiry into an inquiry under the Inquiries Act 2005. At the same time, the Secretary of State declared that the Terms of Reference, which had already been considered at length by the Inquiry and widely circulated amongst the interested parties, would remain the same.
The murder of Billy Wright is one of six cases selected for review during the Weston Park negotiations - an integral part of the implementation of the Good Friday Accord - to determine whether a public inquiry should be held with regard to any of them. The Inquiry’s terms of reference are based on the findings of the ensuing independent investigation conducted by Judge Cory, as set out in his report dated 1 April 2004[3], and are necessarily broad. The legal and practical implications of any attempt to restrict these terms of reference are extensive. Our submission draws the court’s attention to the following crucial considerations:
(i) whether a restriction to the terms of reference would be compatible with both the objectives of the Inquiry and the international and domestic human rights standards established to ensure the effectiveness of any investigation into a death;
(ii) the effect that allowing the instant application for judicial review will have on the timing of the Inquiry; and
(iii) the practical implications of any restriction of the terms of reference and the extent to which they might be incompatible with the public interest.
Compatibility with the objectives of the Inquiry and the requisite international; standards
The murder of Billy Wright while in custody clearly engages Article 2 ECHR and the attendant obligations that give effect to the right to life[4].
The European Court of Human Rights has stated that:
‘Article 2 ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. Together with Article 3, it also enshrines one of the most basic values of the democratic societies making up the Council of Europe.’[5]
The “procedural” aspect of Article 2, i.e. the right to an effective independent investigation into a death, clearly emerged in the Court’s judgment in McCann v UK where the Court noted that:
‘… a general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities.’ [6]
The notion that a failure to satisfy the procedural aspect of Article 2 could in and of itself constitute a breach of Article 2 has been confirmed in a number of Turkish cases[7]. Where the death has occurred in custody, the requirements in relation to the investigation of fatal incidents are strict: there must be a thorough and effective official investigation into the circumstances in which the death occurred, and those responsible should be held accountable (whether by prosecution or otherwise).[8]
The Inquiry’s terms of reference are firmly aimed at ensuring the Inquiry complies with the obligations imposed by Article 2 ECHR. Indeed, in his opening speech to the Inquiry on 22 June 2007, Lord Maclean stated, “The Secretary of State for Northern Ireland… has confirmed that it is for the panel to interpret the Terms of Reference of the Inquiry. In my view, although there is no strict legal obligation on the Inquiry to do so, this Inquiry should seek to satisfy the procedural requirements implicit in Article 2 of the European Convention of Human Rights.”[9] The terms of reference are strongly based on the conclusions of Judge Cory’s April 2004 Report “Cory Collusion Inquiry Report – Billy Wright”. Judge Cory was specifically tasked by the UK Government to investigate allegations of collusion by members of the security forces in the context of the deaths of Billy Wright and three others, as a result of the terms of the Good Friday Accord and the Weston Park Agreement. His report was the result of a lengthy review of all the relevant papers pertaining to each case, including the records of earlier investigations and interviews with those who could assist in the examination of the relevant documents. The aim was to determine whether sufficient evidence exists of collusion between state security forces and those responsible for the murder of Billy Wright to warrant a public inquiry.
Judge Cory reached the emphatic conclusion that there must be a public inquiry into the murder of Billy Wright[10], as the documents showed sufficient evidence of collusive acts to warrant this being held. He identified a number of incidents that pointed to the existence of collusion, and set out some basic requirements and suggested methodology for a public inquiry. He identified six essential characteristics, as follows,
“An independent commissioner or panel of commissioners.
The tribunal should have full power to subpoena witnesses and documents together with all the powers usually exercised by a commissioner in a public inquiry.
The tribunal should select its own counsel who should have all the powers usually associated with counsel appointed to act for a commission or tribunal of public inquiry.
The tribunal should also be empowered to engage investigators who might be police officers or retired police officers to carry out such investigative or other tasks as may be deemed essential to the work of the tribunal.
The hearings, to the extent possible, should be held in public.
The findings and recommendations of the Commissioners should be in writing and made public.”[11]
Terms of reference
“To inquire into the death of Billy Wright with a view to determining whether any wrongful act or omission by or within the prison authorities or other state agencies facilitated his death, or whether attempts were made to do so; whether any such act or omission was intentional or negligent; and to make recommendations.”
List of Issues for Consideration by the Inquiry
“The Inquiry will consider all of the facts and circumstances relevant to the death of Billy Wright in The Maze Prison on 27th December 1997 with a view to determining whether any intentional act or failure to act, or any reckless or negligent act or omission by or within the Prison Authorities in Northern Ireland or by or within other State Agencies, facilitated, or amounted to an attempt to facilitate, the death of Billy Wright.
In determining whether any intentional act or omission facilitated the death, or attempted to do so, or whether any reckless or negligent act or omission facilitated it, the Inquiry will consider the political context in Northern Ireland at the relevant time and the significance, if any, of the death of Billy Wright in that context” (paragraph 1).
In his opening statement to the Inquiry on 22 June 2005, Lord Maclean adverted to the importance of the breadth of the Inquiry’s terms of reference. He stated “We are to consider matters other than those arising solely in relation to a prison. We are to inquire into the conduct, not only of the prison authorities, but also of other State agencies which did not normally have any jurisdiction in respect of prison matters… outwith the prison setting and unrelated to prison administration.”[12]
The intervener submits that any restriction of the terms of reference would not only frustrate the aims of the Inquiry, as recommended by Judge Cory following an independent review of the material, but also fail to comply with the fundamental human rights obligations enshrined in Article 2 ECHR.
In addition, the intervener, as well as Amnesty International, the Committee on the Administration of Justice and the Northern Ireland Human Rights Commission, previously made detailed submissions to the Court in the judicial review of the decision of the Secretary of State to convert the Inquiry to an inquiry under the Inquiries Act 2005[13]. These submissions raised the question, inter alia, whether the Inquiry’s powers under the Inquiries Act 2005 into the circumstances of Billy Wright’s death were compatible with international and domestic human rights standards established to ensure the effectiveness of any investigation into a death, including Article 2 ECHR. The intervener was opposed to the conversion of the Inquiry. Kerr LCJ in the Court of Appeal found that, contrary to the intervener’s concerns, an inquiry under the Inquiries Act 2005 would “conduct a much more meaningful and effective investigation” than one under the Prison Act[14]. In reaching this conclusion, Kerr LCJ took into consideration both the current terms of reference and the list of issues for consideration by the Inquiry. To restrict the terms of reference at this stage would be to deny the validity of Kerr LCJ’s conclusion that the conversion of the Inquiry would not violate Article 2 ECHR.
The intervener was fundamentally opposed to the Inquiry’s conversion to an inquiry under the Inquiries Act 2005, as it anticipated that it might give rise to problems of application or interpretation of the Act. Our opposition appears vindicated by the instant application, which is in our view a spurious challenge to the authority of the Inquiry. If the Inquiry had remained under the Prison Act, and assuming the instant challenge is motivated by concerns about the procedure of the Inquiry rather than any personal concerns on the part of the applicants as to findings of liability, this issue would not have arisen, since the terms of reference are perfectly compliant with the provisions of the Prison Act.
Further or in the alternative, the intervener submits that the Inquiry’s terms of reference do fall within the remit of the Inquiries Act 2005. Section 2 of the Act provides:
“No determination of liability
(1) An inquiry panel is not to rule on, and has no power to determine, any person's civil or criminal liability
(2) But an inquiry panel is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes”.
The applicants assert that the terms of reference are incompatible with, and ultra vires, section 2(1) of the Inquiries Act 2005, since they allow the Inquiry to determine the liability of civil or criminal liability of individuals or bodies. The intervener cannot accept this argument. In fact, the terms of reference grant the Inquiry powers to determine whether any wrongful act or omission by or within the prison authorities or other state agencies facilitated Billy Wright’s death. This will not necessarily lead to a finding of civil or criminal liability of any particular person(s), but rather a more generic finding of liability, for example, on the part of one of the state agencies. Further, Section 2(2) provides that an inquiry panel should not be inhibited in its investigations by any likelihood of liability being inferred from facts that it determines or recommendations that it makes, which would appear to allow an investigation of the necessary facts, issues and persons involved, even if liability can be inferred. Indeed, as Lord Maclean himself recognised, Section 2(2) “makes it clear that an Inquiry can be required, through its Terms of Reference, to determine facts”.[15]
Finally, the applicants were all prison officers in a position of authority on the day of Billy Wright’s murder. Their actions are at issue in relation to the Inquiry and are central to the investigation. The intervener submits that the Court should be very cautious in granting an application restricting the terms of reference if this would curtail the Inquiry’s ability to examine the involvement of these prison officers. In this context, the intervener is at a loss to understand how the Crown Solicitors can bring this application, reviewing a decision of the Secretary of State on behalf of the individual prison officers, when they have also represented the Secretary of State in various related hearings, in particular during the application by David Wright for judicial review of the decision of the Secretary of State to convert the Inquiry to an inquiry under the Inquiries Act 2005. The intervener therefore invites the Court to consider whether this aspect of the case raises any issue of procedural impropriety.
The effect of a delay on the Inquiry
It is two years since the possibility of converting the Inquiry into one under the Inquiries Act 2005 was first mentioned by the Inquiry panel. Lord Maclean announced his proposal to ask the Secretary of State to convert the Inquiry on 25 June 2005; the request was formally made on 13 July 2005. The Secretary of State’s decision to convert was issued on 23 November 2005. The Crown Solicitor’s Office and, indeed, Mr Boyd were consulted when the terms of reference and List of Issues were originally circulated for comment, prior to conversion. They made no comment at that time, nor indeed subsequently in November 2005 when the Inquiry was converted.[16] Further, although the Crown Solicitors refer in the application to the opening comments of Leading Counsel to the Inquiry made on 30 May 2007, neither Mr Boyd nor any of his team of three counsel, who were present in the Chamber during leading Counsel’s opening, have made comment to the Inquiry.[17] Given the amount of time which has elapsed since the possibility of conversion arose, the intervener submits that the instant application for judicial review of the Secretary of State’s decision not to restrict the terms of reference seeks to frustrate the Inquiry and is disingenuous, at the very least.
Billy Wright was murdered in December 1997. It took nearly seven years to establish a public inquiry into his death. Although the Inquiry is now up and running, it may be up to five years before its final report is published. The exigency of investigating the issues surrounding the death of Billy Wright and establishing the truth within the context of the peace process cannot be underestimated. Indeed, as Judge Cory has recognised “The failure to hold such an inquiry as soon as possible might be thought to be a denial of the original agreement [Weston Park], which appears to have been an important and integral part of the peace process. The failure to do so could be seen as a cynical breach of faith which could have unfortunate consequences for the Peace Accord”[18]. “A speedy resolution is essential if the public confidence in the penal system, the police and the administration of justice is to be restored.”[19] Given the centrality of the issues in dispute to the effectiveness of the Inquiry, it is likely that any application for judicial review would ultimately fall to be considered by the House of Lords, which would take considerable time. The intervener therefore submits that to allow the instant application for judicial review would cause further unwarranted and harmful delay to the Inquiry.
The intervener submits that this application is out of time. Section 38 of the Inquiries Act 2005 provides as follows
“Time limit for applying for judicial review
(1) An application for judicial review of a decision made -
(a) by the Minister in relation to an inquiry, or
(b) by a member of an inquiry panel
must be brought within 14 days after the day on which the applicant became aware of the decision, unless that time limit is extended by the court.”
In view of the matters set out in paragraph 23 above, the intervener submits that the court should not extend the time limit, and therefore the application is out of time.
Further, Article 2 ECHR provides not only that an investigation into a death in custody should be effective, but also that it should be prompt.[20] The intervener asserts that to allow the instant application would delay the Inquiry and violate the state’s obligations to provide a prompt and effective investigation under Article 2 ECHR. Any delay may also raise the possibility of procedural unfairness.
In addition, Billy Wright’s father, David Wright, has pursued a long and protracted campaign for an effective investigation into the death of his son over the past ten years. However, he is elderly and frail and even as things currently stand, may not live to see the results of the Inquiry. Further delay to the Inquiry is likely to cause him severe distress and mental anguish, in violation of Article 3 ECHR.
The fact that the Crown Solicitors had ample opportunity to raise their concerns with the terms of reference over the past two years and yet failed to do so until now, suggests that the instant application for judicial review is motivated by concerns other than those set out in the application. It is possible that there are concerns about the content of the evidence that has so far been heard by the Inquiry – or that this application, brought by prison officers who were in a position of authority on the day of Billy Wright’s murder, is at the very least an attempt to frustrate the Inquiry. The intervener submits that such an attempt should be firmly prevented and accordingly permission for leave denied. To do otherwise would raise issues of procedural irregularity.
The intervener was fundamentally opposed to the Inquiry’s conversion to an inquiry under the Inquiries Act 2005. However, now that the Inquiry is under way, their concerns lie mainly in ensuring a full investigation occurs into the murder of Billy Wright, not only to examine the allegations of collusion, but also to obtain long-awaited justice for his family. Under the Inquiries Act, the Inquiry panel itself does not have the power to determine the subject of the instant application, which falls to be decided by the Secretary of State and then challenged by way of judicial review. As a result, further delay is being injected into the Inquiry process, vindicating the intervener’s original objections to the Inquiry’s conversion, based on concerns that conversion would lead to an inquiry which was not compliant with Article 2 ECHR.
Public interest
Billy Wright was the leader of paramilitary group the Loyalist Volunteer Force (‘LVF’). His murder by the INLA led to a number of revenge murders, including the deaths of Maurice O’Kane (1994), Séamus Dillon (1997), Edmund Treanor (1997), Terry Enright (1998) Fergal McCusker (1998), and the more recent linked murder of Martin O’Hagan in 2001. Although the LVF are on a ceasefire, there is a real danger of public disorder if the Inquiry is emasculated and/or delayed. As Judge Cory recognised, “without public scrutiny, doubts based solely on myth and suspicion will linger long, fester and spread their malignant infection throughout the Republic and Northern Ireland Community.”[21]
Billy Wright was in the custody of the state when he was killed, and evidence that has come to light since his death has given rise to credible allegations that there was collusion in his murder. In the light of this, the intervener considers that, as required by relevant domestic and international human rights law, the circumstances surrounding the murder need to be fully investigated in a manner which complies with the above-mentioned standards, including Article 2 ECHR. The ECHR and the jurisprudence of the European Court of Human Rights require, inter alia, that, where the state is alleged to have been responsible for a death or to have engaged in collusion, there must be a full and thorough, effective investigation. Any frustration of the effectiveness of the Inquiry will be both contrary to the public interest in failing to adequately investigate allegations of collusion.
Schedule: the Intervener
British Irish Rights Watch
British Irish Rights Watch is an independent non-governmental organisation that has been monitoring the human rights dimension of the conflict, and the peace process, in Northern Ireland since 1990. Our services are available, free of charge, to anyone whose human rights have been violated because of the conflict, regardless of religious, political or community affiliations. We take no position on the eventual constitutional outcome of the conflict. We have shared information with, and made detailed submissions to, both Judge Cory and the Billy Wright Inquiry, which formed an integral element of the establishment of the Inquiry and the investigation of Billy Wright’s murder.
British Irish Rights Watch, together with Amnesty International and the Committee on the Administration of Justice, was a third party intervener in the judicial review of the decision of the Secretary of State to convert the Billy Wright Inquiry to an inquiry under the Inquiries Act 2005. British Irish Rights Watch has also intervened in a number of other cases, including McCann v UK, John Murray v UK, Al-Skeini and Others v. the Secretary of State, In re McKerr and In the Matter of Coleman, Avery and Others.
[1] There is a considerable amount of jurisprudence, both here and in the European Court of Human Rights, as to the circumstances in which the state has such an obligation and, where it does, as to the content of the obligation. As the Court of Appeal recently stated in D, R (on the application of) v Secretary of State for the Home Department [2006] EWCA Civ 143 (28 February 2006)
“It is common ground that the following principles apply to a case of a death in custody:
i) The purposes of the investigation are those stated by Lord Bingham in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 632, at paragraph 31, namely
"to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others".
ii) The Convention does not adopt a prescriptive approach to the form of the investigation. So long as minimum standards are met, it is for the state to decide the most effective method of investigating: see eg Edwards v United Kingdom (2002) 35 EHRR 487, 511 at paragraph 69 and Amin per Lord Bingham at paragraph 31, Lord Slynn at paragraph 42 and Lord Hope at paragraph 63.”
[2] In the Matter of An Application by David Wright for Judicial Review, [2007] NICA 24 at [5]
[3] Cory Collusion Inquiry Report – Billy Wright, paragraphs 3.222 to 3.231
[4] The European Court has established certain general principles in relation to deaths in custody. For example, in Ognaynova Choban v Bulgaria (Application no.46317/99) the Court reiterated these general principles - “ Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective. In the light of the importance of the protection afforded by Article 2, the Court must subject complaints about deprivations of life to the most careful scrutiny, taking into consideration all relevant circumstances. Persons in custody are in a vulnerable position and the authorities are under an obligation to account for their treatment. Consequently, where an individual is taken into police custody in good health but later dies, it is incumbent on the State to provide a plausible explanation of the events leading to his death.”
[5] See McCann and Others v UK (1995) 21 EHRR para 147; Soering v UK (1989) 11 ECHR 439 para 88; Andronicou and Constantinou v Cyprus (1977) 25 EHRR 491 para 171; Gul v Turkey (2002) 34 EHRR 719 para 76; Jordan v UK (2003) 37 EHRR 52 11 BHRC 1 para 102; Kelly v UK App No 30054/96 Judgment of 4 May 2001 para 91.
[7] See, eg. Aksoy v Turkey (1997) 23 EHRR 553; Kaya v Turkey (1999) 28 EHRR 1; Aydin v Turkey (1997) 25 EHRR 251; Yaşa v Turkey (1999) 28 EHRR 408; Tanrikulu v Turkey, Application No 26763/94, 8 July 1999
[8] Ibid
[9] Preliminary Hearing of the Billy Wright Inquiry, Hearing 22nd June 2005, Opening Statement by Chairman of the Inquiry Lord Maclean; http://www.billywrightinquiry.org/transcripts/4/
[10] Cory Collusion Inquiry Report – Billy Wright, paragraph 3.222
[11] Cory Collusion Inquiry Report – Billy Wright, paragraph 3.224
[12] Preliminary Hearing of the Billy Wright Inquiry, Hearing 22nd June 2005, Opening Statement by Chairman of the Inquiry Lord Maclean; http://www.billywrightinquiry.org/transcripts/4/
[13] In the Matter of an Application by David Wright for Judicial Review, [2007] NICA 24
[14] In the Matter of an Application by David Wright for Judicial Review, [2007] NICA 24 at [46]
[15] Letter from Lord Maclean to the then Secretary of State, Peter Hain MP, dated 20 June 2007
[16] Ibid
[17] Ibid
[18] Cory Collusion Inquiry Report – Billy Wright, paragraph 3.226
[19] Ibid, paragraph 3.227
[20] Finucane v UK, application number 29178/95, 1 July 2003
[21] Ibid, paragraph 3.227
For Peace Justice & Human Rights
