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The “On the Run” (“OTR”) scheme was devised to inform persons who were on the run “that they would not be the subject of arrest or prosecution for any offence committed on behalf of a terrorist organisation prior to the Good Friday Agreement”, unless new evidence came forth.

Elizabeth Morrison applied for leave for judicial review after feeling “let down” by the judgement of Justice Sweeney in R v Downey EW Misc 7 (CCrimC).

In Downey, proceedings were stayed as an abuse of process, as Mr Downey – who was being tried for terrorist offences connected to the Hyde Park bomb – had received an OTR letter which indicated (factually wrongly) that he was not wanted by police in Northern Ireland or elsewhere in Britain.

Ms Morrison’s son, his partner, and her grandchild, were killed as a result of the “Shankill bomb” on 23 October 1993, and after Downey,an article in the Irish News alleged that a suspect in respect of the investigation into the Shankill bomb had been in receipt of an OTR comfort letter and had returned to Northern Ireland.

In the aftermath of the Downey judgment, the Hallett Review was established to produce a full public account of the operation and extent of the administrative scheme for OTRs, including a determination of whether any letters sent through the scheme contained errors.

The report was published on 17 July 2014, and on 9 September 2014, the Secretary of State for Northern Ireland reformulated the Government’s position in respect of the scheme.

The Secretary of State said that recipients of any such letters “should cease to place any reliance on the letters and that, whatever was said in the letters, decisions taken today and in the future will be taken on the basis of the views formed about investigation and prosecution by those who now have responsibility for those matters”.

She added that “all the evidence will be taken into account, regardless of whether it was available before the letters were sent or whether it has emerged subsequently”, concluding that the “scheme is at an end”.

Purely academic

Counsel for the Secretary of State, the Chief Constable of the PSNI, and the Director of Public Prosecutions contended that leave should not be granted because the Secretary of State’s statement had effectively rendered the challenge purely academic.

Further, “the PSNI were unable to find a recipient of an OTR letter who had been a suspect or of interest to the police in the investigation of the Shankill Road bombing”.

Counsel for Ms Morrison contended, “a declaration by the court that the scheme was unlawful was of practical importance as this would be likely to defeat the ability of a criminal defendant in similar circumstances to Mr Downey to rely on the doctrine of abuse of process and so obtain a stay of the criminal proceedings”.

The consideration for the Court was whether the proceedings were rendered academic by the Secretary of State’s statement, which in effect abolished the OTR scheme and gave notice that letters already issued could no longer be relied upon.

Finding that the proceedings were academic, Justice Maguire stated “if this application for judicial review was successful and later a criminal defendant situated similarly to Mr Downey relied on abuse of process, it is difficult to see how that application could be determined on anything other than a fact specific basis. Among the facts which would have to be considered would be those relating to the issuance of any assurance letter and those which relate to the status of that assurance over time. If it is assumed that this court had held that the scheme was unlawful it seems unlikely to the court that this could have the impact of negating any abuse of process application”.

Public interest

Justice Maguire then considered “whether leave should be granted nonetheless”, which should only take place “where there is a good reason in the public interest for doing so”.

According to Justice Maguire, the Court might have been persuaded on public interest grounds were it not for the Hallett Report: “The public interest in the matter is met in substance by the published and accessible review report and the court does not believe that it would be justifiable in terms of the expenditure of time and resources for the court to hold a full hearing in respect of this matter. The court has reached the conclusion that it should not grant leave to apply for judicial review in this case for public interest reasons.”

Justice Maguire accepted it to be possible that a Downey type situation could develop in a future case, but “this in itself would not be reason for hearing the judicial review as any further case would fall to be determined in the criminal court on its own facts and merits”.

Standing

Justice Maguire declined to make a determination on whether Ms Morrison had standing to bring the judicial review application, indicating that he was “satisfied that the modern approach to the law of standing in judicial review applications points against the refusal of leave… in all but the very clearest of cases, such as where Ms Morrison is deemed to be a busybody, crank or mischief maker”.

Conclusion

Refusing leave to apply for judicial review, Justice Maguire held that the challenge was rendered academic and that there was no sufficient reason why he should “depart from the general approach that the Court should not hear academic applications”.