Jordan v Lord Chancellor & Anor (Northern Ireland)

The House of Lords considered (i) whether the Human Rights Act 1998 may be relied on to interpret the Coroners Act (Northern Ireland) 1959 and the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 in respect of deaths occurring before 2 October 2000, (ii) what findings or verdicts a coroner's jury in Northern Ireland may return in an inquest into a death caused by agents of the state, and (iii) the scope of the police duty of disclosure under section 8 of the 1959 Act. The court held that, in light of In re McKerr, section 3 of the Human Rights Act 1998 cannot be invoked to reinterpret Northern Irish inquest law for deaths predating 2 October 2000 and the 1998 Act does not apply to the investigation of such deaths. A coroner's jury in Northern Ireland may not return a verdict expressed as lawful or unlawful killing because rule 16 of the 1963 Rules prohibits expression of opinions on criminal liability, but the jury may make factual findings and draw inferences of fact which can point strongly towards or away from criminal liability. Section 8 of the Coroners Act (Northern Ireland) 1959 was construed purposively to impose a continuing obligation on the police to furnish to the coroner such information as they then have or subsequently obtain (subject to privilege).

The appeals arise from two inquests in Northern Ireland into deaths by agents of the state (Pearse Jordan, 25 November 1992; Martin McCaughey, 9 October 1990). Mr Jordan challenged (by judicial review) the absence of a statutory or practice mechanism in Northern Ireland permitting a jury to return a verdict of unlawful killing and sought reliance on section 3 of the Human Rights Act 1998 to read the 1959 Act and 1963 Rules compatibly with article 2 ECHR; the litigation followed delay, a decision of the Director of Public Prosecutions not to prosecute and an adverse decision in Strasbourg. Mr McCaughey sought judicial review challenging the police retention of documents withheld from the coroner and asserting a duty of disclosure under section 8 of the 1959 Act and, subsidiarily, under article 2.

The Court of Appeal in Northern Ireland dismissed Mr Jordan's appeals ([2004] NICA 29) and allowed the Chief Constable's appeal in the McCaughey case ([2005] NICA 1). On appeal to the House of Lords the issues framed were: (1) whether section 3 HRA 1998 applies to interpretation of section 31(1) of the 1959 Act and Rules 15 and 16 of the 1963 Rules for deaths before 2 October 2000; (2) whether the 1998 Act applies to the investigation of the death; (3) whether Jamieson and Re Ministry of Defence's Application were implicitly overruled by Middleton; and (4) whether they should be expressly overruled.

The House (majority) held that In re McKerr precludes reliance on section 3 HRA 1998 for deaths prior to 2 October 2000, so the 1998 Act does not apply to the investigation of those deaths. Jamieson remains authoritative subject to Middleton's guidance for post-2000 cases where section 3 may be engaged. The court concluded that Northern Ireland law (rule 16 and section 31(1)) does not permit verdicts in the form of lawful or unlawful killing, but a jury may make factual findings and draw inferences relevant to criminal liability; such findings may trigger the coroner's duty to report to the Director of Public Prosecutions. On disclosure, the House held that section 8 requires the police to furnish the coroner with such information as they then have or thereafter obtain, and allowed Mr McCaughey's appeal on that point.

This was an appellate decision. The House dismissed Mr Jordan's appeal that section 3 of the Human Rights Act 1998 should be used to permit a verdict of unlawful killing in respect of deaths before 2 October 2000 and held that the 1998 Act does not apply to the investigation of such deaths (following In re McKerr). The House also held that a coroner's jury in Northern Ireland may not return a verdict in the form of lawful or unlawful killing (rule 16 proscribes expressing opinions on criminal liability), but may make factual findings and factual inferences which can point to criminal liability. Separately, the House allowed Mr McCaughey's appeal in part and declared that section 8 of the Coroners Act (Northern Ireland) 1959 requires the police to furnish to the coroner such information as they then have or thereafter obtain (subject to privilege). The court relied on Jamieson, Middleton, McKerr and Strasbourg authority in reaching these conclusions.

Appeals from the Court of Appeal of Northern Ireland: Re Jordan's Application [2004] NICA 29 (judgment dismissing Jordan's appeals) and Police Service of Northern Ireland v McCaughey and Grew [2005] NICA 1 (allowing Chief Constable's appeal on disclosure and article 2 issues). Appeals were heard in the House of Lords and disposed of by judgment [2007] UKHL 14 on 28 March 2007.