Inquest delay and damages

Re Jordan’s Applications for JR – Delay & Damages [2015] NICA 66

From the inquest that just keeps on giving a further judgment of the Northern Ireland Court of Appeal (‘NICA’) has been published concerning the award of damages under the Human Rights Act as compensation for the continued delays in bringing to a conclusion the (still unfinished) inquest into the death of Pearse Jordan who was shot by an RUC officer on the Falls Road in 1992.

“The investigation into the death of a close relative, impacts on the next of kin at a fundamental level of human dignity. It is obvious that if unlawful delays occur in an investigation into the death of a close relative that this will cause feelings of frustration, distress and anxiety to the next of kin”. -Stephens J

A huge number of legal decisions, including more than 25 Judicial Review applications have already arisen from the procedural inadequacies in investigating this death. In 2001 an award of £10,000 as compensation for the delay up to that point was made by the European Court in Strasbourg, which called into question whether the Northern Irish inquest system was, at the relevant time, structurally capable of providing for both speed and effective access for the deceased’s family.

The inquest into Pearse Jordan’s death was eventually heard in 2012. However, further legal challenges including allegations of bias by the Coroner led to that inquest being overturned in 2014 and a fresh inquest being ordered before a different coroner by the Northern Irish Court of Appeal.

In the latest Judicial Review claim concerning the continued delay to holding an Art 2 compliant inquest Stephens J determined in November 2014 that the coroner was not responsible for those further delays which had occurred in concluding the fresh inquest, but that the steadfast resistance to provide documents shown by the Police Service of Northern Ireland (PSNI) had been largely responsible. He made an award of £7,500 damages for the breach of Article 2 procedural obligations.

The PSNI then appealed that award of damages and Mr Jordan cross-appealed the finding in respect of the Coroner. The Court of Appeal has now dismissed that cross-appeal but also declined to accept the arguments of the PSNI that Mr Jordan’s damages claim for a delay going back longer than a year was brought outside the HRA limitation period. The Court of Appeal, relied upon earlier Supreme Court decisions, when it held that where such inquest delays are a continuing act of alleged ECHR incompatibility then time runs from the date when the incompatible act ceases, not when it begins.

Furthermore although Stephens J had awarded £7,500 damages without having any medical evidence or personal statement from Mr Jordan dealing with the impact of the delay upon him, the Court of Appeal stated that they saw no error in an approach that inferred without any evidence of the fact that there had been frustration and distress at the delay. As Stephens J had neatly put it “as a matter of domestic law it would be lamentable if a premium was placed on protestations of misery.

However whether the sum of £7,500 in damages was actually an appropriate level of award remains unresolved as, no doubt anticipating further actions and seeking to bring some finality to this long running saga, the NICA has held that any claims for damages for delay should be assessed after the completion of the fresh inquest, which has not yet commenced.

“It is when the inquest has been completed that it will be possible to examine all of the circumstances surrounding any claim for delay and the court will then be in a position to determine whether adequate redress requires an award of damages and if so against which public authority in which amount.”

The NICA also emphasised that any application should be made within one year of the completion of the inquest. Although, after 23 years and 25 judicial review applications with still no end in sight, some may wonder what those lawyers who have been involved in this case for decades might then do with all their spare time should this inquest and its satellite litigation ever conclude.