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Court: Northern Ireland Court of Appeal

NI Court of Appeal rule for report on collusion to be carried out for the car bombings in Dungannon in 1976

Chief Constable Police Service of Northern Ireland v Edward Bernard

This case involved the killing of a 13 year old boy as a result of car bombings in Dungannon in 1976. The appellant some key issues in this case:

Whether the appellant made clear and repeated promises to the respondent sufficient to ground a substantive legitimate expectation;
Whether the PSNI Legacy Investigation Branch was sufficiently independent to conduct an investigation into this death.

Held: The Court accepted that the respondent, and by implication all the families whose loved ones were killed by off duty RUC and UDR officers across the Southern border counties of Northern Ireland in the 1970s, had a procedural legitimate expectation that an analytical report on collusion would be carried out by an independent police team.

The Court also held that the PSNI were not sufficiently independent for the purpose of carrying out such a report.

Court of Appeal dismisses appeal, holding that decision to reassign custody officer was within PSNI margin of appreciation

In the matter of an application by Elizabeth McGowan for leave to apply for Judicial Review [2019] NICA

Appealing against the judgment and order of 12 Dec 2017 dismissing her application for judicial review, the applicant sought leave to judicially review the PSNI’s decision to reinstate and redeploy the custody officer on duty at the time of her son’s death in custody. This reinstatement occurred following suspension, five months after the death, and was to administrative duties for a period of 18months.The Court of Appeal held that the context in the case was all-important, considering the care taken to ensure the officer would not perform the duties of a custody sergeant during his redeployment, the fact that his reassignment ensured that he was remote from the State investigation into the death, and the fact that there was no suggestion of lack of cooperation.   The Court concluded that the reinstatement and reassignment decision clearly lay within the margin of appreciation available to the senior police officers concerned, and that it was unrelated to the State investigation into the death. It further concluded that ECHR, art 2 did not apply to the actions involving the reinstatement and redeployment of the officer following the death, with the consequence that there was no breach of the applicant’s human rights. The Court finally rejected the unreasonableness ground of challenge.Therefore, the Court of Appeal affirmed the judgment and order of the High Court, and dismissed this appeal.

Court finds that Chief Constable has not demonstrated practical independence on the part of the PSNI Legacy Investigations Branch

McQuillan v Police Service of Northern Ireland [2019] NICA

In this appeal the appellant sought a declaration that the proposed further investigation by the Legacy Investigation Branch of the PSNI into the death of her sister, Jean Smyth, conflicts with the requirements of ECHR, art 2, because the LIB lacks the requisite independence required to perform an art 2 compliant investigation into the death.
The Court held that ECHR, art 2 does apply to further investigation and therefore those carrying out the further investigative measures must be independent from those implicated in the events. Under the procedural arm of art 2, there is an obligation on the Chief Constable to proceed promptly, and consideration of the independence of LIB should be directed to a consideration of the hierarchical, institutional or practical independence of the institution concerned.
The Court concluded, granting declarations that the Chief Constable is obliged to conduct the further investigations into the death of Jean Smyth in a way which satisfies the State’s ECHR, art 2 procedural obligation, and that he is bound to promptly take steps to secure the practical independence of the investigators so that they have the capacity to carry out an art 2 compliant effective investigation.

Judge erred in finding an assertion of fact

Coulter v Sunday Newspapers GIL10172

The appellant had been ordered to pay a sum in damages to the respondent due to a defamation claim in relation to an article discussing the respondent’s treatment of his workers. The appeal claimed inter alia, that the Judge had failed to observe the single meaning rule, and erred in finding that the comments were an assertion of fact not opinion. The Court held that the order could not stand and a retrial was needed.

Claim against Facebook for the misuse of private information

CG v Facebook Ireland Ltd & Ors MOR10142

This case concerned the publication of a photograph and comments relating to a convicted sex offender (the respondent). The court held Facebook to be liable for damages for one instance for misuse of private information, but not for others as there had only been actual knowledge of the private information in that instance. Facebook was found to be a data controller for the purpose of the Data Protection Act 1998, s5, and therefore is entitled to the protection of the e-Commerce Regulating against claims for damages.