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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 >> Downes, Re Application for Judicial Review [2007] NIQB 40 (24 May 2007) URL: http://www.bailii.org/nie/cases/NIHC/QB/2007/40.html Cite as: [2007] NIQB 40

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Ref: GILF5846

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND ________ QUEEN'S BENCH DIVISION (JUDICIAL REVIEW) ______ IN THE MATTER OF AN APPLICATION BY BRENDA DOWNES FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ________

GILLEN J

The application

[1]      The application of, and the relief sought by, the applicant in this matter is couched in the following terms in the Order 53 statement:

"(a) An order of certiorari quashing the decision of Mr Peter Scott QC ('the respondent') whereby he refused to allow the applicant to participate in his inquiry or to provide her and her representatives with all or any of the material gathered by him in the course of his investigation.

(b) A declaration that the applicant is entitled to participate in his inquiry and to have access to relevant material."

The application for leave to apply was determined by me on Wednesday 23 May 2007.

[2]      Although an appeal is outstanding against the findings of the judge in the judicial review proceedings, that appeal does not include on its face any objection to the findings of the judge on the issue of lack of candour.

The background

[3]      The applicant in this matter had previously brought proceedings in the High Court seeking a judicial review of the decision of the Secretary of State for Northern Ireland to appoint Mrs Bertha McDougall as Interim Victims Commissioner. Those proceedings were ultimately successful and resulted in three separate rulings from Girvan J (as he then was) dated 9 November 2006, 20 November 2006 and 15 January 2007 granting certain relief to Mrs Downes. In his ruling of 9 November 2006 Girvan J found that the respondent had failed in its duty of candour to the court and that the case raised very serious issues which should be the subject of "immediate and searching inquiry at high level". In his ruling of 20 November 2006 Girvan J considered that in light of the findings which he had made, the appropriate course for the court to adopt was to refer the papers and documents to the Attorney General. He identified a number of questions which he considered to be important in any investigation of what had occurred. In his judgment of 20 November 2006 at paragraph 7 he said:

"The Attorney General thus has the function of protecting the due administration of justice. I consider the proper course for this court to take is to refer the papers to him to decide what, if any, steps should be taken in the matter in the light of all the circumstances and in the light of all the papers before the court and any documents to which neither the court nor the applicant has access. In the Schedule I set out what appear to me to be the key questions which need to be addressed in the rigorous and searching investigation into the matter. The applicant who was the recipient of the misleading and incorrect information will of course have an interest in the proper conduct of the investigation."

[4]      On 4 December 2006, the Attorney General announced that he had asked Peter Scott QC ("Mr Scott") to investigate the issues referred to him by Girvan J following his judgment in the judicial review proceedings. The terms of reference of the Review were as follows:

"Further to the referral of papers to the Attorney General by Girvan J and in the light of his judgments of 9 November and 20 November 2006:

To examine the concerns raised by the judge;

To examine in particular the way in which the Government carried out its obligation of candour in the judicial review proceedings relating to the appointment of an interim Commission for Victims and Survivors;

To report to the Attorney General with recommendations to prevent a recurrence of any shortcomings identified."

The statement of the Attorney General continued:

"The Attorney General has asked that Mr Scott report to him as soon as is possible consistent with the need to conduct a thorough review."

The grounds on which the relief is sought

[5]      As often happens in the course of judicial review proceedings, particularly at the leave stage, the nature of the relief sought and the grounds on which counsel relied became refined and subject to material change as the argument progressed. Although 22 grounds are set out in the Order 53 statement, Mr McDonald QC, who appeared on behalf of the applicant with Ms Doherty, crystallised his case in the course of argument in a manner which allows me to summarise his case as follows:

(i) Mr McDonald made it very clear that he was not asserting a public law right on behalf of the applicant to participate in the inquiry. Nor was he asserting any legal right to see any document or indeed even to be represented. Rather he concentrated on what he alleged was the improper exercise of discretion by Mr Scott in the performance of his fact finding function in failing to properly involve the applicant in his inquiry. Counsel submitted that the applicant had a legitimate interest in the proper conduct of this investigation. It was his argument that Mr Scott had evinced an inflexibility of mind in relation to her role, failing to appreciate the significance of her position. In essence Mr McDonald asserted that Mr Scott had failed to recognise that not only was the applicant a victim of the breach of candour, but she was the one contradictor in an inquiry where all the other primary participants would be from the Government perspective. The applicant asserted sought no more than the right to intervene or participate in a meaningful sense in the inquiry now under way. In order to fulfil that role, the applicant required to be afforded access to relevant documentation and material. Thereafter, after close perusal of such documentation, she could then make further representations about the nature of her possible future intervention either with or without the benefit of counsel/solicitor depending on the circumstances.

(ii) Mr McDonald drew a distinction between the role of the Attorney General in instances where he is providing an evaluative/policy driven judgment – which may not admit of judicial scrutiny – and the purely fact finding analysis which he had delegated to Mr Scott. The latter did admit of full judicial scrutiny. In essence therefore Mr McDonald requested the court to consider the exercise of Mr Scott's discretion on Wednesbury principles.

(iii) Counsel for the applicant variously and colourfully described the plaintiff's position in the wake of Mr Scott's decision as being "on the sidelines", "unable to make any meaningful contribution", "confronted with a blanket refusal by Mr Scott" and "being afforded merely a courtesy meeting which would serve no purpose". By adopting this attitude Mr Scott, he submitted, was depriving himself of access to salient information. In particular counsel argued that Mr Scott might not be privy to practice and procedures in Northern Ireland or to exchanges which may have occurred outside court for example between counsel which could assist him in his task. The case was made that Mr Scott had failed to understand the assistance he could properly derive from appropriately involving the applicant.

(iv) Mr McDonald dismissed arguments that issues of privilege, sensitivity and confidentiality lent support to Mr Scott's approach. Counsel reminded the court that the Attorney General had made it clear that he intended to publish the findings. In any event the Government officials were bent on co-operating which counsel argued was tantamount to a waiver of any privilege. Alternatively Mr Scott could consider withholding certain documents and disclosing others which did not bear the mark of confidentiality or privilege.

In conclusion therefore Mr McDonald submitted that leave should be granted at this stage.

The respondent's case

[6]      Mr Shaw QC, who appeared on behalf of the respondent with Mr McLaughlin in the course of a well structured skeleton argument augmented by oral submissions made the following points:

(i) The review tasked to Mr Scott is one which he must carry out entirely independently of the Attorney General under the remit of the terms of reference. It is common case that this is a non-statutory private review where currently he has no powers to compel the appearance of witnesses or the production of documentation. One of the purposes of the review is to assist and inform the Attorney General about what happened before and in the course of the judicial review proceedings and why the concerns of Girvan J about breaches of duty of candour arose. Once informed by the contents of the report, the Attorney General will then determine what further steps need to be addressed in the public interest. Mr Shaw submitted however that it is not possible to divorce Mr Scott's role from the constitutional function of the Attorney General which lies at the heart of the current process.

(ii) Counsel relied on the authority of the Divisional Court in Northern Ireland In the matter of Applications by Alan Shuker and Others [2004] NIQB 20. Those cases were set in the context of challenges to a decision of the Attorney General not to exercise his power to certify certain offences as descheduled by virtue of Section 75(1) of the Terrorism Act 2000. In the course of submissions about the justiciability of the Attorney General's certification, Kerr LCJ said at paragraph 23:

"The cases where it has been held that judicial review will not lie to challenge the decision of prosecuting authorities have been essentially pragmatic in their reasoning. In the present case many of the reasons advanced by the respondent that judicial review should not be available to challenge a decision of the Attorney General are likewise pragmatic."

Again at paragraph 25 the judge said:

"Ultimately therefore, the question of whether the Attorney General should be subject to judicial review in respect of decisions about de-scheduling must be answered in a way that take account of the particular features of this process of decision-making. We have concluded that this is not a process which is suitable to the full panoply of judicial review superintendence."

Mr Shaw borrowed these observations to found a submission that the ultimate decision by the Attorney-General of what action, if any, should be taken to protect the public interest is not likely to be a subject to review (or only subject to review to a limited extent) . Accordingly he argued it was a necessary corollary that the process by which he informs himself prior to making that determination ie the fact finding and recommendation exercise of Mr Scott, should be subject to a similar reluctance on the part of the court to intervene.

(iii) Developing the pragmatic theme, counsel drew attention to the practical difficulties of affording the applicant access to the material generated by Mr Scott in the course of his review. These included such matters as the intrinsically sensitive nature of much of the material relating to individuals which it would not be in the public interest to disclose, that the review is currently being conducted on the basis of the co-operation of individuals and material has been assembled in confidence for the purpose of the review, the material itself may be relevant or prejudicial to the outcome of any further proceedings in the wake of the report, and the report itself must be carried out expeditiously according to the remit.

(iv) Considering the relationship between the applicant and the review, Mr Shaw argued that there is little material contribution that she could conceivably afford to the inquiry by a perusal of the papers which is not already available to Mr Scott. The review has at its disposal all the papers available in the judicial review and a transcript of the relevant parts of the proceedings themselves. Insofar as there is any extraneous material, eg arising out conversations between counsel outside court and to which the inquiry is not yet privy, there is no reason why Mr Scott could not invite the applicant or her representatives to apprise him of such material.

(v) Counsel stoutly denied that the applicant had been sidelined in any way. Mr Scott has made it clear to her representatives that while he does not anticipate any basis for representations or a substantive response to be made on her behalf, he has made it clear in correspondence to her solicitor that he will keep under review how best he might be assisted by her in relation to any new material that may come to light during the course of the investigation.

(vi)The applicant, whilst a victim of the lack of candour during the judicial review proceedings, has now no greater interest in the outcome than any other member of the public. Mr Shaw submitted that the breach of duty of candour which the court identified is now a matter of historical fact and her claim has been fully disposed off in the original proceedings subject to the appeal outstanding. There is now a freestanding investigation arising out of the concerns of Girvan J and, as with any other member of the public, the applicant now might wish to assist the review.

(vii) The comments of Girvan J to the effect that the applicant would have an interest in the proper conduct of the investigation did not in counsel's submission create an interest at law entitling her to contribute in the manner she wishes. There is nothing prescriptive in the three judgments of Girvan J to suggest that the applicant should be entitled to have access to all or any of the materials obtained by the review or to have the opportunity to make representations upon the material. In any event, Mr Shaw argued that the judgment of Girvan J could not have been binding upon Mr Scott.

Conclusions

The leave application

[6]      The test to be adopted at this stage is that set out in Application by John Hill for Leave to Apply for Judicial Review, Neutral Citation No. 7 (2007) NICA 1 at para. 23 where Kerr LCJ said:

"It is well settled that, in order to be permitted to present a judicial review application, the applicant must raise an arguable case on each of the grounds on which he seeks to challenge the impugned decision …."

[7]      I pause to repeat however observations that I made in the matter of an Application by Colin Armstrong for Leave to bring Judicial Review (unreported) GILC5765 where I considered that there is much merit in the views expressed by Keene J in R v Cotswold District Council ex parte Barrington (1998) 7 C&P 515 where he said:

"Where the court seems to have all the relevant material and have full argument at the (permission) stage on an inter partes hearing, the court is in a better position to judge the merits than is usual on a (permission) application. It may then require (a claimant) to show a reasonably good chance of success if he is to be given (permission). In the present case this court has heard arguments stretching over 1½ days from all three parties, each represented by leading counsel, and with substantial skeleton arguments from all three parties, and with all the documentation which these parties have been able to assemble over the period of almost four months since this application was lodged. This is very different, therefore, from the ordinary 20 minute ex parte (permission) hearing".

[8]      In this case it was clear to me at the outset that I was in possession of a great deal of relevant material including a full skeleton argument by the respondent. I therefore invited counsel at the outset of this case to deal with this matter as a full hearing. Their joint reluctance to do so dissuaded me from adopting this course and accordingly I have dealt with it purely as a leave hearing. However it seems to me that in similar circumstances in the future, recognising the need to effect expeditious and cost saving litigation, the court may be rather less sympathetic to such a consensual approach where it is evident on the papers that the full argument is going to unfold.

Delay

[9]      In his skeleton argument Mr Shaw raised the spectre of delay in this matter. I had the benefit of a further affidavit from the applicant on the morning of hearing and responsibly, in light of that affidavit, Mr Shaw did not pursue with any vigour that submission. I therefore concluded that the concept of delay did not arise in this case.

My decision

[10]      I have come to the conclusion that the applicant in this case has failed to raise an arguable case on any of the grounds upon which she seeks to challenge the impugned decision. My reasons for so concluding are as follows:

(i) It is pivotal to an understanding of the issues in this case to understand the nature and purpose of the review procedure. Mr Scott is an independent person, not appointed under statute, who has been requested by the Attorney General to carry out a specific remit which I have outlined in paragraph 4 of this judgment. It is therefore a non-statutory private review whose purpose is to examine the concerns raised by the judge, the way in which the Government carried out its obligation of candour in the judicial review proceedings and thereafter to report to the Attorney General with recommendations to prevent a recurrence of any shortcomings identified. That task is to be carried out as soon as possible consistent with the need to conduct a thorough review. The nature of this inquiry must therefore inform the exercise of Mr Scott's discretion in the manner in which he ensures the conduct of the review and procedural propriety during the course of the exercise. I respectively borrow the words of Lord Bridge in Lloyd v McMahon (1987) AC 625 at 702H when he said:

"What the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make, and the statutory or other framework in which it operates."

The framework in this instance is an expeditious inquisitorial process carried out by Mr Scott into the concerns raised in the remit he has been given. In the course of his submissions Mr McDonald characterised the approach of the Scott inquiry as amounting to merely making a precis of statements given to him and acting as a conduit pipe to the Attorney General. I do not accept this and indeed such an approach would be to misconceive the searching inquisitorial nature of the inquiry and the lack of adversarial flavour. His task is to ask such questions and to assemble such documents as he may require to fulfil his duty to report .It is not a list in the conventional sense and as such he must have a wide discretion to conduct this task in a manner that he finds most conducive to an expeditious and thorough completion. I find nothing in the evidence before me which suggests that the exercise of Mr Scott's discretion in the context of this review transgresses the Wednesbury principles given the context in which he is working. I find nothing irrational or perverse about the impugned decision and I find no evidence that he has failed to take into account all relevant matters and ignored irrelevant matters in the exercise of his discretion in this instance.

(ii) I find no evidence to sustain the argument that he has set his mind against a role for the applicant in this matter or that he has failed to appreciate the significance of her position. It is common case that the applicant does not assert a public right to participate in the review, to see any document or to be represented. Nonetheless, in correspondence of 8 February 2007, through the secretary and solicitor to the Review, Mr Scott has recognised her interest in the proper conduct of his investigation and outcome to the extent that he has not only invited her to disclose any facts or matters bearing on the terms of his reference but has thereafter indicated that he continues to keep under review how best he might be assisted by her in relation to any new material that may come to light during the course of the investigation. There is an offer to meet with Mrs Downes in due course which remains outstanding. In light of this, I reject entirely the submission of Mr McDonald that the applicant has been sidelined, issued with a blanket refusal to participate or that she is being afforded only a courtesy meeting which would serve no purpose. Mrs Downes has responded to the initial request through her solicitor in correspondence of 18 January 2007 in the following terms:

"We write to indicate that, further to your letter dated 8 January 2007, on the material currently available to her Mrs Downes is not aware of any facts or matters bearing on Mr Scott's Terms of Reference that he is not already aware of. We assumed that Mr Scott has being given full access to all the documentation that was before the court in the judicial review proceedings and all relevant background material in the respondent's position custody or control."

He has in my opinion kept his mind ajar to the possibility of future meetings with her in the terms set out unequivocally in the letter of 8 February 2007.

(iii) The review has full access to all the documents that were before Girvan J at the hearing together with a transcript of relevant extracts of the hearings. Mr Scott doubtless will also be assisted to focus on the issues by the questions that the judge has already identified as relevant to the issues. The question therefore arises as to how the purpose of this review would be furthered by affording the applicant access to all or any of the documentation that he may now gather or have gathered during the course of his inquiry. I find no substance in the suggestions by counsel that only by affording her access to the documents together with further unspecified participation could Mr Scott be satisfied that he was in possession of all the salient issues. I find implausible the suggestion of Mr McDonald that Mr Scott may be unfamiliar with practice and procedure in Northern Ireland or that he would be unaware of any legal differences between the two jurisdictions which would serve to impede his inquiry in the absence of assistance from the applicant or her representatives. Such a proposition almost perversely underestimates the qualifications of the distinguished barrister who is to head this inquiry. Almost uniquely amongst professionals, lawyers, and particularly barristers, operate in a milieu where they have divided loyalties with a duty to the court as well as to their clients. They daily contribute to the workings of justice and have to act honestly and responsibly. These are amongst the qualities that make Mr Scott suitable for the inquisitorial task in hand. Part of that duty to the court may on occasions require an assessment of comparative legal systems. I have no doubt that Mr Scott is well able to research, discover and deal with any relevant distinctions between judicial review practice in Northern Ireland and in England and Wales in the unlikely event of this arising in what is after all purely an investigation into breach of candour. It is a discipline in which as a barrister he is well versed and I cannot conceive of any assistance which he could alone derive from the intervention of the applicant or her representatives. Similarly, I find no attraction in the submission that he requires the input of the applicant or her representatives to reveal to him any of the external exchanges that may have occurred outside the court setting and which would be relevant to his inquiry. Clearly the plaintiff and a representative are in a position to inform him of any of which they are currently aware. If he receives such information from those he interviews in the course of his inquiry, this would constitute new information which he could well raise with the applicant. Indeed it is conceivable that she could be shown some relevant documentation if such need arose. In either case, it does not constitute a reason for the exercise of his discretion in the manner sought by the current application.

(iv) Insofar as Mr Scott has exercised his discretion to decline to disclose all the evidence in documentary form which is obtained to the applicant, I find no arguable case that this amounts to a Wednesbury unreasonable conclusion. In the correspondence of 8 February 2007 Mr Henderson on behalf of Mr Scott made the following argument:

"The investigation now being carried out involved numerous facts and matters which are the subject of legal professional privilege and/or otherwise confidential or sensitive. It is obviously important that evidence being obtained by the review should deal fully and frankly with all such matters, and it would be unfair to expect those concerned to provide such evidence on the basis that it would be published during the course of an investigation that you suggest. Mr Scott very much doubts whether the judge contemplated any such procedure, but in any event he respectfully could not think it right to adopt it."

In my opinion Mr Scott is entitled to take into account that much of the information and material which he is receiving may be of an intrinsically sensitive nature and may not be suitable for or capable of disclosure to the applicant or to be put into the public domain . It is unnecessary for me to have had an affidavit in this matter before considering the strength of this point. It is self evident. The self imposed obligation accepted by the Attorney General to publish his conclusions does not contain any inherent contradiction to this. I also considered that it is appropriate for Mr Scott to have taken into account that the possibility of a criminal investigation may be one of the possible outcomes of the papers being referred to the Attorney General. The applicant might well be a potential witness in such an investigation and it would be a wholly unconventional and indeed even inappropriate step if she were to have advance access to all such material before she had made a statement in such proceedings or that she should be treated in some different way form other witnesses to the potential criminal proceedings. These are circumstances which in my view Mr Scott is entitled to weigh in the balance when exercising his discretion against disclosure of documents to the applicant and which, from a pragmatic perspective, must necessarily inform the degree and scope of what is required to satisfy the demands of procedural fairness in the circumstances of this case.

(v) I consider that in arriving at this decision, Mr Scott was also entitled to take into account in the exercise of his discretion the need for expedition in the completion of his task. Expedition and thoroughness are not two mutually exclusive concepts. They are both vital ingredients of the remit that he has been given. The Attorney General has made it clear to him that he should report "as soon as is possible". The relief which the applicant seeks – access to information, opportunity to make comment thereon, legal costs from public funds – could all serve to trigger parallel applications and challenges from others involved in the inquiry and could serve to impede an expeditious conclusion. Such a precedent would introduce unheralded and unnecessary complexity in a manner inconsistent with the remit which he has been given. I consider therefore that it is perfectly appropriate for the decision-maker to have taken the need for expedition into account in exercising his discretion.

(vi) I find nothing in the interest that the applicant has in this matter that arguable impugns the discretion exercised by Mr Scott. Mr McDonald urged me to take into account the views expressed by Girvan J and set out by me at paragraph 3 of this judgment. Whilst of course the views expressed by this senior judge must carry appropriate weight nonetheless the judge did not attempt to prescribe the nature of the participation of the applicant or indeed even the nature of the investigation/inquiry. That was a matter for the Attorney General to determine as the judge himself acknowledged. I have sympathy with the view argued by Mr Shaw that it is important to appreciate that the review does not derive from the findings of the learned judge but rather as a consequence of the decision of the Attorney General. I find no basis for the proposition that the judge's comments create a right in law. Nor did Mr McDonald suggest the contrary. Indeed, understandably, he readily conceded that it did not provide a basis for a legitimate expectation of involvement of any particular type in the inquiry. There is no doubt that the applicant, as a victim of the lack of candour, does have an interest in the conduct and outcome of this inquiry. To that extent the comments of Girvan J underline an obvious point. But that interest does not create a right to intervene or participate in the manner postulated on her behalf The nature of her participation is not a freestanding one and must take its colour from the context of the review.

(vii) Finally, it was also appropriate that Mr Scott should take into consideration in the exercise of his discretion that there was nothing to suggest that the applicant would be criticised in the report to the Attorney General.

(viii) The conclusions I have reached and which have been set out in the above-mentioned paragraphs are sufficient to satisfy me that this application should fail and that the applicant has not established an arguable case. I observe however that a further matter was raised before me by Mr Shaw. He sought to invoke the authority of Shuker's case to ground a proposition that the court should tread carefully in exercising its powers to review the discretion exercised by Mr Scott and, to use his phrase, exercise reticence before intervening given the character and function of the inquiry. He argued that it was artificial to divorce Mr Scott's role from the constitutional function of the Attorney General which lies at the heart of the current process. Mr McDonald, on the contrary, argued that Mr Scott had been given a narrowly defined fact-finding role which was quite separate from the political/evaluative judgments which are the functions of the Attorney General. In my view whilst it is artificial to ignore the fact that Mr Scott derives his remit from the Attorney General, a pragmatic approach should be adopted by the court to the task in hand being carried out by Mr Scott. Given the precise nature of his inquisitorial function, I am unpersuaded that the process should not be subject to conventional judicial review in a manner that takes account of the particular features of that part of the process of decision-making in which he is participating. The demands of procedural fairness, as I have already indicated, will obviously vary depending on the nature of the task. So long as the court fully appreciates the role that has been delegated by the Attorney General to Mr Scott I see no reason why the court cannot properly intervene in a pragmatic sense recognising the inquisitorial nature of the inquiry. Such matters should be dealt with on a case by case approach with the courts fixing the standard of procedural fairness according to the circumstances of the instance. That is the approach that I have adopted in this matter. I therefore dismiss the application.