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Directing that NI departments and the Secretary of State must reconsider the provision of additional funding for legacy inquests, Justice Paul Girvan stated 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 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.