In the matter of an application by Hugh Jordan for Judicial Review (Northern Ireland)

A person may bring proceedings under section 7(1)(a) of the Human Rights Act 1998 as soon as investigative delay reaches the threshold required by article 2 of the Convention. A court cannot postpone the exercise of that statutory right by requiring proceedings to await completion of an inquest.

Although case-management powers permit a stay, the court must assess the individual case. The stay must preserve practical and effective Convention rights, allow determination within a reasonable time under article 6, pursue a legitimate aim and remain proportionate. Avoiding multiple proceedings and enabling consideration of all periods of delay are legitimate considerations. They do not justify a virtually automatic stay. The court must also weigh the claimant’s interest in timely redress, personal circumstances and the likely duration of the stay.

Hugh Jordan sought judicial review concerning delay in the inquest into the death of his son. He claimed declarations and damages under section 8 of the Human Rights Act 1998 for breach of the procedural obligation under article 2 of the European Convention on Human Rights. The High Court upheld his claim against the Police Service of Northern Ireland and awarded £7,500.

The Court of Appeal, in [2015] NICA 66, stayed the proceedings and gave general guidance that damages claims in Northern Ireland legacy cases should await completion of the inquest. It later qualified that guidance in In re McCord’s application for Judicial Review. Mr Jordan’s wife continued the proceedings after his health deteriorated.

The central issue was whether the Court of Appeal could require a damages claim arising from investigative delay to await the conclusion of the inquest, or stay an existing claim until then.

1. Appeal allowed unanimously. Lord Reed, with whom Lady Hale, Lord Carnwath, Lord Lloyd-Jones and Lady Arden agreed, held that the Court of Appeal had ordered the stay without any evident assessment of its proportionality in the circumstances. It was uncertain whether the same decision would have been reached had all relevant facts, including the claimant’s declining health, been considered.

2. Investigative delay itself constitutes the breach of article 2. The breach does not crystallise only when the inquest ends. Once the delay reaches the requisite threshold, section 7(1)(a) of the Human Rights Act 1998 gives a victim the right to bring proceedings, subject to section 7(5). A court cannot remove that right through case management, although it retains powers concerning vexatious proceedings and abuse of process.

3. A court may stay proceedings in appropriate circumstances. It must, however, ensure that Convention rights remain practical and effective. A general practice of staying claims seeking orders or declarations to end investigative delay could gravely weaken the article 2 right. Deferring only the assessment of damages may be less harmful, but its consequences must still be examined in the individual case.

4. A claim under section 7(1)(a) is a civil right for article 6 purposes. A stay is unlawful if it causes the claim to exceed the reasonable-time guarantee. Because a stay also restricts effective access to a court, it must pursue a legitimate aim and bear a reasonable relationship of proportionality to that aim.

5. Avoiding proliferating litigation and enabling the court to consider all relevant periods of delay and the responsibility of different public bodies are legitimate and significant considerations. They must be balanced against the claimant’s interest in timely monetary redress, possible additional distress, age or infirmity, and the likely length of the stay. Some stays will be proportionate and others will not. A virtually automatic rule, applied without regard to individual circumstances, is incompatible with article 6.

6. The Court of Appeal’s original guidance was therefore defective. Its later clarification in McCord—limiting the guidance to damages-only cases where an inquest is under way or expected soon, requiring review of the stay and its lifting where necessary to secure determination within a reasonable time—was generally consistent with these principles. Even then, the court must allow for exceptions required by the individual case.

1. United Kingdom Supreme Court: The appeal was allowed unanimously. The Court held that the stay had been ordered without evident consideration of proportionality in the individual circumstances.
2. Court of Appeal in Northern Ireland: In [2015] NICA 66, the court stayed the appeal and cross-appeal until completion of the inquest. It also gave general guidance that damages claims based on delay should await the final determination of the inquest.
3. High Court of Justice in Northern Ireland: In [2014] NIQB 11 and [2014] NIQB 71, Stephens J upheld the claim against the Police Service of Northern Ireland, declared that its delay breached article 2 and section 6 of the Human Rights Act 1998, and awarded £7,500 in damages.