About this case:

• Citation:
  [2022] NIKB 25
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Michael Humphreys

The court granted judicial review, finding that this question was an important point of public law.

Background

On 17 September 1976, Rosaleen O’Kane died in her flat at Cliftonpark Avenue in Belfast. She was 33 years old. Her body was discovered by members of the fire brigade who attended the scene in the early hours of the morning as a result of a fire at the premises.

An autopsy carried out by Dr Carson, deputy state pathologist, failed to reveal the cause of death but noted a number of unusual features: there had been more than one fire in the property; the body was badly charred but there was no evidence of clothing; and there was no evidence of carbon monoxide poisoning or sooty material in the air passages, which would have been consistent with death in a fire.

This evidence gave rise to a strong inference that the death did not occur due to natural causes or involving an accidental fire. The overwhelming probability was that Ms O’Kane was a victim of crime.

The applicant, her sister, sought to challenge the “ongoing failure” on the part of the PSNI to properly investigate the death.

Application for judicial review

The applicant contended that the PSNI breached its obligation, arising both at common law and pursuant to section 32 of the Police (Northern Ireland) Act 2000, to detect crime and bring offenders to justice.

She also alleged that the failure to investigate the death was irrational, insofar as the PSNI claimed there were no current credible investigative opportunities.

Initial reports stated that the police believed the fire was accidental. Shortly after the funeral, however, two officers explained that Rosaleen had been murdered and that ‘black magic’ may have been involved.

At the inquest in October 1977, an open verdict was delivered but it was made clear that the police were treating the case as a murder.

On 20 January 2002, police informed the family that the investigation was still open and that one man had been interviewed relating to his possible involvement. A re-investigation was being conducted.

In October 2004 the PSNI informed the applicant’s solicitor that the Serious Crime Review Team (SCRT) would be carrying out a preliminary case assessment into the death. However, by July 2007, the case had fallen into the workload of the Historical Enquiries Team (HET).

In November 2010 the investigation was passed back by HET to SCRT as HET deemed the death not to be Troubles-related. In August 2017 the Attorney General declined the request for a fresh inquest.

Given that little progress was made for over four decades, it was asserted that the police had breached a duty both at common law and under statute to investigate crime, such breach being actionable by a private individual as a matter of public law.

The applicant relied on section 32 of the 2000 Act, which outlines the general duty of police officers to protect life and property, to preserve order, and to prevent and investigate offences.

Consideration

The judge found that there was a prima facie case that the applicant and her family had been treated “appallingly by those charged with the investigation of the death of their loved one. At every step they have been pushed from pillar to post and met with inactivity, delay and a want of basic communication”.

The question for the court was whether a breach of the duty imposed by section 32 could be relied on in public law proceedings by an individual affected by the alleged breach.

The court noted Re E’s Application [2004] NIQB 35, which involved police handling of protests. There, the judge was not satisfied that any breach of section 32 had occurred; however, it was not established that this legislative provision could not be relied upon by the applicant for judicial review.

On appeal, before the House of Lords [2008] UKHL 66, it was argued that the police had failed to give effect to the Article 3 rights of parents and children when complying with the section 32 obligation. This was unsuccessful because there had been Article 3 compliance, not because section 32 could not be invoked by the applicant.

The judge relied on this, and other authorities, to find that it was arguable that the PSNI had breached their duties, both at common law and under section 32, to investigate the crime.

However, the court did reject arguments surrounding contravention of the rule of law and irrationality as being inarguable in this case.

The final issue before the court was whether this application was barred due to delay. The court noted that such an application should have been made within three months of the date when the grounds for the application first arose, unless there was good reason for extending time.

Here, the court was satisfied that there was an important point of law to be resolved, namely whether and to what extent an applicant in public law proceedings can seek to impugn an alleged failure to investigate a crime by the police.

In light of this, and given the continuing effect of this failures by the PSNI, the court found that there was good reason to extend the time.

Conclusion

Ultimately, the court granted leave to apply for judicial review.