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The deceased’s daughter brought an application to quash by certiorari the decision of the Attorney General (AG), arguing that a fresh inquest was necessary for the purpose of discharging the investigative obligation on the State under Article 2 of the European Convention on Human Rights and that the AG had misdirected himself on this issue. The Attorney, having taken into account the case of Janowiec, was of the opinion that Article 2 of the Convention did not require proceedings to be added for the purposes of establishing historical truth; and Justice Deeny held that the Attorney’s conclusion could not be condemned on public law grounds or otherwise.

Background

In August 1988, a man known as person A had been kidnapped, with another man, by the IRA and held by them. Mr Sean Eugene Dalton, who was an entirely innocent neighbour of A, grew concerned about A, who had been missing from his home for some time by 31 August 1988. Mr Dalton and two other neighbours gained entry to A’s flat at around 11.50 am on 31 August 1988 through a window but, tragically, having done so triggered an explosive device and all three were killed.

An inquest into the death of Mr Dalton was held on 7 December 1989 before the Coroner for the District of Londonderry, who found that Mr Dalton: “died from injuries received when an explosive device was detonated at No. 38 Kildrum Gardens, Londonderry around 11.50 am on 31 August 1988”

Police Ombudsman Report

In 2005 the deceased’s son, Mr Martin Dalton, made a complaint to the Police Ombudsman for Northern Ireland (PONI), citing several reasons why the RUC ought to have known that there was a danger to the residents of Kildrum Gardens in the days leading up to the explosion, but that the RUC failed to act.

The 2005 complaint was taken up by the Police Ombudsman for Northern Ireland and investigated by his office. This investigation was prolonged and the Ombudsman changed in the course of it so that the ultimate Public Statement pursuant to Section 62 of the Police (NI) Act 1998 was published by Dr Michael Maguire on 10 July 2013.

The Ombudsman’s report stated that there was no certainty the police knew there was a bomb specifically at 38 Kildrum Gardens, but that there was strong evidence that the police had sufficient information and intelligence to identify the location of the bomb, that they ought to have known it was in the vicinity of 38 Kildrum Gardens and that steps could and should have been taken to mitigate the threat and to warn the local community. These steps were not taken and the focus of the police effort appears to have been the protection of officers from the terrorist threat.

Attorney General decision

Throughout 2013 and 2014, the applicant – Ms Dorothy Johnstone, daughter of the deceased – wrote to the AG several times enclosing the PONI report, and requesting the AG to exercise his powers pursuant to Section 14 of the Coroner’s Act (NI) 1959 by directing the holding of a fresh inquest into the death of Mr Dalton.

The AG repeatedly directed that the holding of a new inquest would not be advisable

In 2015, the applicant applied to the European Court of Human Rights, however the application was inadmissible on the basis that domestic remedies had not been exhausted because no judicial review of the AG’s refusal or any other decision by the national authorities had been sought.

Leave for Judicial review of the AG’s decision was granted in 2016 “only in relation to the applicant’s case based on Article 2”.

High Court

The parties were agreed that the adjectival duty of the State under Article 2 had been addressed originally and that there was no continuing duty, as Lord Phillips said in Re McCaughey 1 AC 725. What was at stake was whether that duty had been revived by the PONI Report and, if so, whether it required a fresh inquest contrary to the conclusion of the AG.

Justice Deeny stated that the leading decision of the European Court of Human Rights on this topic was Brecknell v The United Kingdom 46 EHRR 42, which emphasised the prosecution and conviction of perpetrators. In this regard, Justice Deeny was of the opinion that it was entirely speculative on the evidence available that a re-examination of this matter at an inquest might lead to disclosure of intelligence information at that time identifying persons involved in the planting of the explosives device. As such, Justice Deeny found this to be a “very frail basis for saying that the Attorney was entitled to let alone obliged to order such an inquest”.

Further, since there was no evidence that the police failed to act in order to protect an informant, the case was not one in which there was any evidence of collusion by the police in causing the death of Mr Dalton.

In the circumstances, the present case could be distinguished from several of the cases put forward on behalf of the applicant, including Edwards v The United Kingdom 35 EHRR 19; Regina (Amin) v Secretary of State for the Home Department UKHL 51; Regina (Smith) v Oxfordshire Assisted Deputy Coroner UKSC 29

In finding that the AG was justified in his decision, and refusing Ms Johnstone’s application, Justice Deeny emphasised the importance of considering the public interest, particularly the financial and human cost of ordering a further inquest.

Notably, Justice Deeny added that the AG can revisit his decision if relevant evidence were to come to light from further police investigations or the civil action; and that although the power to subpoena witnesses in a civil action will not lead to a right of the plaintiff to cross-examine the witness under subpoena, “the chances of a witness… making a concession because he is being cross-examined rather than examined in chief is a very slight one which the State is entitled to conclude does not justify the financial and human cost of a further inquest”.