By Mike Ritchie
On Friday 20th October 2017, an important judicial intervention took place in relation to cases arising from conflict-related killings where state involvement or collusion is at the heart of litigation.
On that day, the Loughgall families were in court challenging the failure of the state to resource the inquest that must take place; the hearing was due to consider whether former first Minister Arlene Foster’s blocking of resources for legacy inquests means she should be represented in the hearing; even though she claims that it is nothing to do with her! Two applications for judicial review were also to be heard, in relation to two incidents: the murder of Peter McCormack and the attempted murder of John McEvoy in the Thierafurth Bar in Co Down by the UVF in November 1992; and in respect of the UDA murder of James Cameron and Mark Rodgers at the council depot on Kennedy Way in October 1993. Both these cases were calling for proper, independent investigations, as required by rulings from the European Court for Human Rights in Strasbourg over the last two decades. Finally, Pearse Jordan’s mother Theresa was in court seeking to overturn a milk-water finding by the coroner in the third inquest into her son’s killing by RUC officers.
The day was, therefore, an instructive example of how relatives of those killed by (or with the collusion of) the state are being ill-served by the responsible authorities who are supposed to resolve these issues. There was a promise at the time of the Good Friday Agreement that the rule of law would replace the days of conflict. Yet, in truth, the very entities that preach the rule of law, seek to evade and defy it when the law points in their direction.
The two judicial review applications listed for last Friday are the latest in a numerous series of judicial reviews raising a variety of issues relating to Article 2 of the European Convention on Human Rights, the duties and obligations of the state in respect of conflict-related deaths. The failure to establish coherent mechanisms to deal with legacy issues has resulted in extensive litigation by victims seeking to ask the courts to resolve what are seen as government failures or incorrect decisions. The judicial reviews are targeted at the various elements of the state that are currently responsible for policy in this area or were responsible for the individuals or organisations responsible for the deaths: the NIO, the PSNI, the MoD, the Cabinet office etc.
Many of these cases have been sitting for months and years waiting for the attention of the courts, held up by delays and prevarications in disclosure or legal argument. They have also become a challenge for the courts in managing the rising tide of litigation as victims and relatives press their legitimate cause for proper investigations that examine in detail what the state was up to during the conflict.
Though each case may raise a slightly different issue, collectively, they give powerful testimony to the absolute mess that the state has created by its failure to put in place effective mechanisms to deal with legacy. Giving visual expression of interlinkage of these several cases, a range of relatives and campaigners attended the court to support the families who were due to have their day in court that Friday.
As people waited for the hearings to begin, a press release from the Lord Chief Justice landed into their lawyers’ smart phones. This informed us that, following a review of all legacy related judicial review files, a new case management plan had been adopted in order to move them forward “in an efficient, effective and expeditious manner”. Parties in all these cases were put on notice that formal directions hearings to progress matters would be listed in front of the new Senior Judicial Review Judge, Bernard McCloskey. The statement concluded with the news that a similar review of all conflict-related civil litigation would now commence in order to progress these. (While there are currently between 20 to 30 judicial review cases, there are over four hundred civil cases before the courts.)
The immediate effect of these statement could be seen in the applications for judicial reviews in the Thierafurth Bar and Kennedy Way depot cases. Both were granted with alacrity by McCloskey J., who indicated that he was extremely reluctant to consider lengthy argument from the state solicitors as to why he should not grant leave. The matter was concluded with minimal fuss, the authority of the international human rights framework having been raised above the carping of the crown!
In the course of the hearing, McCloskey, J., gave more detail as to how he proposed to implement the Lord Chief Justice’s decisions. Each case would be given a full hearing date; working back from this, short periods would be allocated for opening application, response, settling on agreed facts and issues and identifying points of disagreement which needed to be argued before the bench. Time-framed disclosure and discovery is also to be allowed for, an indication that the judiciary are becoming frustrated at the delays in state disclosure.
In briefing families afterwards, lawyers described this as good news. The Lord Chief Justice is, once more, taking the lead and putting his authority behind a speedy resolution of the cases. It suggests that the judiciary want to engage seriously with the state’s obfuscation and delaying tactics in legacy cases.
There was less good news for Theresa Jordan in her extraordinary pursuit of accountability for the RUC officers responsible for killing her son, Pearse – whether through direct shooting or by overseeing the operation which culminated in his death.
Theresa and her husband, Hugh, have – over the course of more than 200 court hearings and three full inquests – demonstrated an epic patience and persistence in the face of crown and police attempts to hide their actions, tell untruths, to withhold and destroy evidence. Their epic judicial journey has transformed the inquest procedure into a much more penetrating vehicle for scrutinising state actions during the conflict. In the past, resources rights and entitlements during inquests were wholly stacked in favour of the state and its agents. This is no longer the case, thanks, in large part to Theresa and Hugh, who deserve great credit for having refurbished and modernised the inquest system by their persistent and just demands that their son’s needless death should be accounted for.
In the event, Mrs Justice Keegan refused her application to challenge the coroner’s findings in this most recent inquest where Mr Horner said he could not decide between two conflict narratives of what happened at the moment RUC Officer A fired at Pearse. Keegan, J. ruled that the hearing of the inquest had been fair and, once this is conceded, it is not her role to second guess the coroner’s conclusions. Article 2 compliance is an assessment of procedure rather than outcome. She had not heard all the evidence so should not comment on findings. However, no one had questioned the fairness of the hearings. Accordingly, she refused leave to challenge the inquest’s outcome.
Theresa must now assess with her legal team from Madden and Finucane whether to appeal this ruling or conclude that the account of what took place by Mr Horner at the end of the inquest, with all its undoubted criticism of the RUC’s operation leading up to Pearse’s death and the cover-up afterwards, is the last word on the case.