NI High Court: Leave to apply for judicial review of historical sexual abuse appeal refused

About this case:

• Citation:
  [2024] NIKB 37
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Michael Humphreys

Delivering judgment for the High Court, Mr Justice Michael Humphreys opined that “Whilst in civil litigation such a decision will generally be made after hearing a witness give evidence, the procedure under the 2019 Act involves a different paradigm. If it were the case that any application or appeal which required consideration of an applicant’s credibility demanded an oral hearing, this would wholly subvert the statutory scheme.”

Background

On 3 June 1982, when aged 15, the applicant was remanded to St Patrick’s Training School in Belfast. The applicant alleged that on that evening, he was sexually abused by a member of staff called ‘Fra’. The applicant was released the following day.

The applicant made an application for compensation under s.2 of the Historical Institutional Abuse (Northern Ireland) Act 2019 to the Northern Ireland Redress Board. On 14 December 2022, the panel queried whether ‘Fra’ was a religious brother or a secular staff member, to which the applicant responded that he was unsure but believed he was not a religious brother as he wore normal clothes.

The application was considered by the panel, which took into account the applicant’s statement, his GP notes and records, the relevant material from the Historical Institutional Abuse Inquiry (the Hart Inquiry) and the response of the De La Salle Order under rule 7 of the Historical Institutional Abuse Board (Applications and Appeals) Rules (Northern Ireland) 2020 that there had been a trainee chef in the school who was known as ‘Fra’ and that he was convicted of sexual abuse in the 1990s. The Order stated that ‘Fra’ had been suspended on 12 March 1980, resigned and did not work at St. Patrick’s again.

The panel rejected the application on 17 February 2023, finding inter alia that ‘Fra’ and the applicant were not in the institution at the same time.

Appeal to Single Judicial Member

The applicant appealed pursuant to s.16 of the 2019 Act to a single judicial member (SJM) of the Board on 28 February 2023 on the basis inter alia that the panel failed to take his account into consideration, failed to provide sufficient weight to the potential that another person named ‘Fra’ may have been involved and that his medical notes failing to mention the abuse ought not to have diminished the credibility of his account.

Proceeding by way of re-consideration of the evidence, the SJM directed himself that he had to be satisfied that the abuse alleged had occurred to the requisite standard, the balance of probabilities.

On 5 April 2023, the SJM determined that the applicant had failed to satisfy him that the abuse occurred as alleged. In particular, the SJM found it troubling that the Order had confirmed that there had been a specific abuser named ‘Fra’ present at the institution prior to the applicant, with the SJM opining that the coincidence raised the possibility of “informed imagination” on the applicant’s part.

The High Court

The applicant sought leave to apply for judicial review on the basis of the failure of the SJM to direct or consider an oral hearing of the appeal pursuant to his power under s.9(3)(b) of the 2019 Act. The applicant also alleged procedural unfairness, in that inter alia the Order’s ‘rule 7’ response had not been provided to the applicant and he had no opportunity to challenge its veracity, and the SJM had placed weight on that evidence.

The High Court considered that the SJM’s decision had been promulgated on 27 March 2023 and notified to the applicant on 5 April 2023, and as such his application on 21 July 2023 for leave was 16 days out of time having regard to Order 53 rule 4 of the Rules of the Court of Judicature.

Mr Justice Humphreys considered that in circumstances where delays in obtaining legal aid had caused the delay, the applicant had established “good objective reasons” and no significant prejudice had been occasioned to the proposed respondent.

Turning to the merits of the application, the court considered the principles of fairness outlined in R v SSHD ex p. Doody [1994] 1 AC 531. Noting that s.9 of the 2019 Act provides that the SJM may in exceptional circumstances direct an oral hearing, the judge found that neither the applicant nor his legal representative had requested an oral hearing at any time.

The judge set out the opinion of the High Court in Re Glass’s Application [2022] NIKB 2 to the effect that the matter was “one of proportionality: were the circumstances of the case such that refusal of an oral hearing would result in unjustifiably harsh consequences?”

Finding the applicant’s contention that an adverse view had been taken of his credibility without him being afforded the opportunity of a hearing as “nothing remotely exceptional”, the court opined that “Whilst in civil litigation such a decision will generally be made after hearing a witness give evidence, the procedure under the 2019 Act involves a different paradigm. If it were the case that any application or appeal which required consideration of an applicant’s credibility demanded an oral hearing, this would wholly subvert the statutory scheme.”

Mr Justice Humphreys continued, “The role of the judicial review court is supervisory. It does not act as a court of further appeal from the SJM. The SJM is himself a judicial officer, familiar with the tenets of procedural fairness and invested with a power to make discretionary decisions by the 2019 Act. The court will afford a proper measure of respect to such exercise of discretion, whilst retaining the right to intervene in cases of manifest unfairness.”

The court proceeded to consider to s.9(2) of the 2019 Act which requires the panel to request from the institution concerned information to enable it to verify the accuracy of the facts alleged. Noting that rule 7 supplements s.9(2) by requiring the panel to give written notice to the institution specifying the name of the alleged abuser, Mr Justice Humphreys pointed out that “the statute imposes no obligation of disclosure to an applicant.”

The court had regard to R(Pathan) v SSHD [2020] UKSC 41, which held that a lack of notification to a visa applicant of the revocation of his sponsor’s licence precluded him from mending his hand by identifying a suitable alternative employer to sponsor him.

The judge opined: “However, absent from this applicant’s case is any account of what he would have done if he had been provided with the full rule 7 response or the specific averment in relation to the names of staff at St Patrick’s. There is no suggestion that he could have adduced any additional or fresh evidence or made any particular submission which would have materially altered the framework within which the SJM had to make his decision. In order for any claim of procedural fairness to succeed, an applicant needs to be able to demonstrate (at least arguably at this stage) that the procedure adopted caused some material prejudice to him, or some ‘meaningful opportunity’ was lost.”

Conclusion

Accordingly, the court refused leave to apply for judicial review.

JR307’s Application and In the matter of a decision of a single judicial member of the Historical Institutional Abuse Redress Board [2024] NIKB 37