A woman whose husband died over 30 years ago and has not had an Article 2 ECHR
compliant investigation into his death has successfully argued that the decision
of former First Minister,
Arlene Foster, not to permit a paper
on legacy inquests to go before the Executive Committee was
unlawful.
Directing that NI departments and the Secretary of State must
reconsider the provision of additional funding for legacy inquests,
Justice Paul Girvanstated that Arlene Foster had erroneously took into account
the absence of an overall agreed package to deal with legacy issues. Justice
Girvan held that there was an obligation on State authorities to ensure that the
Coroners Service could effectively comply with Article 2 irrespective of whether
an overall package was agreed.
Failure to provide adequate
funding Brigid Hughes’ husband, Anthony
Hughes, died in 1987 when innocently caught in the cross-fire between soldiers
and police officers and the IRA at Loughgall RUC station.
The Court
heard that no Article 2 compliant investigation into his death has been held;
and in 2015, the Advocate General ordered a fresh inquest which is yet to take
place.
Ms Hughes challenged the ongoing failure of the
Executive
Office, the
Executive Committee, the
Department of Justice, the
Minister of
Justice, and the
Secretary of State for Northern
Ireland to put in place adequate funding to prevent further delays to
the holding of legacy inquests relating to deaths during “the
Troubles”.
Ms Hughes contended that the failure to provide adequate
funding “caused inexcusable delay to the listing and completion of numerous
inquests, including the inquest into her husband’s death”.
Ms Hughes
submitted that the former First Minister,
Arlene Foster,
“unlawfully prevented the tabling and discussion of a paper put forward by the
MoJ which attempted to advance the securing of additional funding for the
coronial system to assist it in progressing the legacy inquests and reducing
systemic delays”.
Procedural requirements Rule
3 of the
Coroners (Practice and Procedure) Rules (NI) 1963 provides
that “every inquest shall be held as soon as practicable after the Coroner has
been notified of the death”.
Article 2 ECHR and the common law require
that inquests are conducted with reasonable expedition and
efficiency.
Re McCaughey & Anor [2011] UKSC 20 extended the
effect of Article 2 so that if the UK authorities decided to hold an inquest
into a death which occurred before the commencement of the
Human Rights Act
1998, there is an obligation to ensure that it complies with Article 2
obligations so far as possible under domestic law.
Justice Girvan stated
that the effect of “…the unchallenged decisions of the Attorney General and the
Advocate General to direct legacy inquests” was that inquests should comply with
these procedural requirements.
Justice Girvan added that this included
“the duty to carry out the inquests as soon as practicable and with reasonable
expedition”, and that the unchallenged decisions “inevitably led to a need for
resources to be made available if the State is to comply with its obligations to
have timely inquests.”
Justice Girvan stated that the evidence made it
clear that Ms Foster’s “reasoning was motivated by her view that the legacy
inquests created an imbalance in relation to State killings as opposed to
paramilitary killings, that the LCJ’s proposals and the MoJ’s paper did not
address the issues of innocent victims and that the funding of legacy inquests
should be deferred until resolution of all legacy issues”.
Although this
was “an understandable political viewpoint”, Justice Girvan stated that Ms
Foster had misdirected herself when concluding that the duties of the State
could be delayed indefinitely until an agreement was reached on an overall
package to resolve all legacy inquests.
Systemic
delay Justice Girvan held that there had been systemic delay in
the coronial system in respect of the determination of the legacy inquests,
which are required to be conducted in a manner compliant with Article 2 and
within a reasonable timeframe.
The result of this was that Ms Hughes’
Article 2 and 8 rights were engaged, and that the delay meant her Article 2
rights were not being vindicated.
In her decision not to permit the
MoJ’s paper to go before the Executive Committee, the former First Minister,
Arlene Foster, “was in error in concluding that it was legally proper to defer
consideration of the question of seeking additional funding to deal with the
systemic delays in relation to the legacy inquest until an overall package was
agreed in respect of the outstanding legacy issues. She was in error in
concluding that it was legally proper to defer consideration of the funding
issue because in the absence of an overall package the provision of additional
funds to deal with the systemic delays in the legacy inquests would favour
victims who were not innocent as against innocent victims of the
Troubles”.
Justice Girvan added that this approach “was infected by the
legally erroneous view that dealing with the question of the provision of
additional funds to deal with the systemic problems in respect of legacy
inquests should await the outcome of an overall package in respect of all legacy
issues. Their approach has been infected by the erroneous legal view that there
is a permissible linkage between the issues”.
This represented disregard
for breaches of Article 2, Rule 3 and common law in respect of the legacy
inquests which require to be addressed and dealt with irrespective of whether an
overall package can be agreed.
Justice Girvan directed that the NI
departments and the Secretary of State must reconsider the question of the
provision of additional funding for legacy inquests and that this cannot be
postponed until an outcome to a political agreement is resolved.