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High Court of Justice in Northern Ireland Queen's Bench Division Decisions |
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You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Cooleys, Re Judicial Review [2013] NIQB 31 (14 March 2013) URL: http://www.bailii.org/nie/cases/NIHC/QB/2013/31.html Cite as: [2013] NIQB 31 |
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Neutral Citation No: [2013] NIQB 31 | Ref: | TRE8806 |
Judgment: approved by the Court for handing down | Delivered: | 14/03/2013 |
(subject to editorial corrections)* |
TREACY J
Introduction
Grounds of Challenge
(a) In reaching the impugned decision the PSNI erred in law in failing to recognise that the award of intimidation points by the NIHE under Rule 23 (2) of the Housing Selection Scheme (on receipt of advice from the PSNI) denotes that the criterion for eligibility for a Chief Constable's Certificate is met in the applicants' cases.
(b) In reaching the impugned decision the PSNI erred in law in failing to recognise that risk of serious injury or death is a phrase readily comparable with the concept of risk of serious harm in criminal justice (which as defined in Article 3 of the Criminal Justice (Northern Ireland) Order 2008 encompasses risk of death or serious personal injury, whether physical or psychological), and in so doing failed to avert to the risk of serious psychological injury presented by continued residence at 100 Mountpottinger Road and/or 106 Mountpottinger Road.
(c) In reaching the impugned decision the PSNI acted in a procedurally unfair manner, in that the decision maker appealed from was improperly involved in a task of gathering all relevant information in respect of the appeal (letter dated 27th July 2011).
(d) In light of the information available to the PSNI the decision that the applicants, although specifically or directed threatened or intimidated, are not at risk of death or serious injury (whether physical or psychological) if they continue to reside in 100 Mountpottinger Road and/or 106 Mountpottinger Road, is unreasonable and irrational.
Background
"At the front of her home, all windows are covered by steel grids, and all windows both front and back are triple glazed for extra reinforcement against missile attacks. The front door has heavy drop bars installed to protect against attacks, although for many years this door simply has not been used as it is too risky to do so. All visitors enter and exit the house via the back door, and in fact the front section of the house is barely used at all. Annette, her family and any guests remain in the kitchen at the back instead of the living room at the front. Lights cannot be put on at this side of the house at all during the night, because this is an indication that there is someone inside, and very often a precursor to a barrage of missile attacks".
"… suffers from anxiety and sleeplessness as a result of recurring problems over the past 13 years on the interface where she lives.
Miss Cooley suffers from considerable stress, anxiety and broken sleep because of verbal threats and abuse over the past 13 years and these have been a lot worse over the past 5 years.
She has retreated to her house and is afraid to go out especially in the evenings or at night …
This ongoing situation is affecting her health. The pressures have been ongoing and persistent, and her mental health is being affected. I am concerned that her health is being very adversely affected and could deteriorate further if the situation regarding housing move is not resolved for her".
"… is an elderly lady with a serious mental health problem. She lives alone. I feel that the constant fear that she has to endure is very detrimental to her health".
Statutory Framework
SPED Scheme
"Scheme for purchase of evacuated dwellings
29.–(1) The Executive shall submit to the Department a scheme making provision for the Executive to acquire by agreement houses owned by persons who, in consequence of acts of violence, threats to commit such acts or other intimidation, are unable or unwilling to occupy those houses.
(2) A scheme submitted under paragraph (1) may include provision as to-
(a) the circumstances in which the Executive a house under the scheme;
(b) the manner in which the purchase price is to be determined;
(c) the fittings which the Executive may purchase when acquiring a house under the scheme;
(d) the disposal of such houses; and
(e) such other matters as the Executive considers appropriate."
"2.1 All of the following conditions must be satisfied before an application will qualify for acceptance within SPED.
(i) The house must be owner-occupied and must be the applicant's only or principal home.
(ii) A certificate signed by the RUC Chief Constable, or authorised signatory, must be submitted to the Executive, stating clearly that it is unsafe for the applicant or a member of his/her household residing with him/her to continue to live in the house, because that person has been directly or specifically threatened or intimidated and as a result is at risk of serious injury or death.
(iii) The applicant must qualify for A1 (Emergency) status under the Executive's Housing Selection Scheme."
[See Judgment of Morgan J (as he then was) in Re Watt's Application [2005] NIQB 35, para 11]
Housing Selection Scheme: Intimidation
"An Applicant will be entitled to Intimidation points (see Schedule 4) if any of the following criteria apply in respect of the application:
1) The Applicant's home has been destroyed or seriously damaged (by explosion, fire or other means) as a result of a terrorist, racial or sectarian attack, or because of an attack motivated by hostility because of an individual's disability or sexual orientation, or as a result of an attack by a person who falls within the scope of the Housing Executive's statutory powers to address neighbourhood nuisance or other similar forms of anti-social behaviour.
2) The Applicant cannot reasonably be expected to live, or to resume living in his / her home, because, if he or she were to do so, there would, in the opinion of the Designated Officer, be a serious and imminent risk that the Applicant, or one or more of the Applicant's household, would be killed or seriously injured as a result of terrorist, racial or sectarian attack, or an attack which is motivated by hostility because of an individual's disability or sexual orientation, or as a result of an attack by a person who falls within the scope of the Housing Executive's statutory powers to address neighbourhood nuisance or other similar forms of anti-social behaviour."
Applicants' Submissions
" … there does not appear to be any evidence that the applicant is at risk of serious injury or death. Although the medical condition of the applicant is recognised, in consideration of 'psychological injury' this does not correlate with a risk of serious injury or death as a result of threats or intimidation for the purpose of a Chief Constable's Certificate being issued".
Respondent's Submissions
"12. ... Whether targeting of that nature is such that it is unsafe for the occupier to continue to live in the house and whether the occupier is at risk of serious injury or death is a matter of judgment for the Chief Constable.
13. ...
14. ... I am satisfied that the assessments have adopted an inappropriately restrictive approach to the issue of whether the applicant was directly or specifically threatened or intimidated. Whether a positive answer to that question leads to the conclusion that it was unsafe for the applicant to continue to live in the house or that there was a risk of serious injury or death are different issues."
Conclusion