About this case:

• Citation:
  [2022] NICA 14
• Judgment:
  External link
• Court:
  NI Court of Appeal

Background

This was an appeal of a 2021 decision by Mr Justice David McFarland, which refused leave to apply for judicial review. The challenge alleged a failure to provide reasons to the appellant, Patrick Frizzell, by the Legacy Investigations Branch (LIB) of the PSNI, in relation to the progress of an investigation into his brother’s death.

Brian Frizzell was shot dead, alongside two teenage girls, Catriona Rainey and Eileen Duffy, in the mobile shop where they worked in 1991. James Harper, the getaway driver, was the only person convicted in relation to the killings.

During police interviews, Harper stated that Alan Oliver was the man who carried out the shootings, and that Anthony McNeill, Billy Wright and Mark Fulton were involved. Wright and Fulton are now deceased.

Legacy Investigation Branch case

The LIB is the unit within the PSNI responsible for legacy cases, which includes reviewing all Troubles-related deaths in Northern Ireland and conducting investigations if there is sufficient evidence to do so.

Documentation claimed that LIB were reviewing around 1,122 cases, of which 15 were currently under review or investigation. These incidents related to the deaths of over 1,400 persons. The reviews are given priority based on the case sequencing model (CSM), which considers:

1. Whether any contemporary person of interest (CPOI) is featured as a potential suspect.
2. Whether the case has forensic potential.
3. The criminal justice status of the case.
4. Case progression.

The murder of the appellant’s brother was within LIB’s caseload since May 2018. No steps had been taken to advance it since then. However, the sequence of cases in the case list is reviewed on an annual basis.

Judicial review challenge

A BBC Spotlight broadcast on 16 October 2019 involved a journalist who queried Alan Oliver about his involvement in a number of murders, which may have included the appellant’s brother’s. The appellant wrote to the DPP and PSNI on foot of this information, seeking further investigation into the allegations.

The PSNI claimed that they had closely monitored the BBC Spotlight series, but that it was not LIB policy to provide exact details about where a case fell within their priority list.

Following this, a pre-action protocol letter was sent. It alleged that that the proposed respondent was in breach of the positive procedural obligations imposed by article 2 of the ECHR to ensure a prompt independent and effective investigation, and a breach of the statutory duty to investigate by virtue of section 32(1) of the Police (Northern Ireland) Act 2000.

It was also alleged that the continued reliance on the CSM prioritisation system, when there was an identified person of interest, was irrational and unreasonable.

The response was that the CSM was “fundamentally a rational means for the Chief Constable to prioritise the limited resources available to him to conduct reviews of legacy cases […] The Chief Constable does not propose to commence a thematic review because of the alleged activities of a CPOI”.

Thereafter, judicial review proceedings were lodged. The appellant claimed illegality on the grounds that reasons had not been provided for their decision.

The appellant sought a quashing order and a declaration, both of which were refused by Mr Justice McFarland. The judge claimed that the impugned decision was not susceptible to judicial review, and an arguable case had not been made out.

Determination

In making their decision, the court rejected the conclusion that the impugned decision was immune from judicial review challenge: “Decisions of this kind, belonging as they do to the ambit of public law and benefiting from no exclusionary principle, are justiciable.”

However, it was also necessary to establish whether the failure to adequately provide reasons for the PSNI decision gave rise to procedural unfairness. In assessing the case, the court found that the applicant had, in reality, been seeking “pure information” from the Chief Constable about why his brother’s case was not being progressed.

Realistically, in order to be meaningful, this information would have been extensive, given the number of cases on the LIB’s list. Much of the information would have related to the facts of each case on the list and therefore would have been sensitive and confidential.

In addition, there was a “public facing” model for the periodic review of the sequencing and priority of every investigation into the deaths. The information available to the appellant was therefore sufficient for him to understand how the system operated and what this meant for the investigation into the death of his brother.

Further, despite the fact that the impugned decision had no adjudicative element and the decision-making agency was not a judicialised body, the court stressed that even administratively this request went beyond the resources and the budget of the LIB and was disproportionate.

The argument, effectively, stemmed from the fact that it was important for the applicant to have this investigation closed. However, while the court understood this desire, the same could be said of all the 1,100 cases on the LIB’s un-investigated list.

The court ultimately concluded that the common law duty to provide reasons, or further reasons, was not established.

A second ground, under the Police Service Victim Charter standard 1.8, was also rejected. This states that a bereaved family member is entitled to be “informed/or told what is happening as part of the investigation”. The court found that this did not create a legally enforceable right to obtain further information, and in any event the information already provided to the applicant complied with the charter.

Conclusion

Although the court understood the applicant’s desire to achieve justice, they also noted that these cases are numerous and complicated, and the investigating authorities are subject to the limits of their resources.

The appeal was dismissed, and the court affirmed the decision of Mr Justice McFarland refusing leave to apply for judicial review.