Submission on Prioritisation of Inquests in Northern Ireland:
Dec 2015


Catherine Burns
Solicitor to the Coroner
Catherine.Burns@courtsni.gov.uk
Direct Dial: 0289 044 6829

Dear Catherine,

Rights Watch (UK), formerly British Irish Rights Watch, would like the opportunity to input into the Lord Chief Justice’s consideration on prioritisation of legacy inquests. I appreciate that the deadline for submissions was 07 December but I ask that you accept these submissions as we only became aware of this consultation on 04 December.

Rights Watch (UK) has provided assistance to many individuals wishing to attain justice for themselves or their relatives due to events that formed part of the conflict in Northern Ireland. We have a great deal of experience of working with the Historical Enquiries Team (HET), the Office of the Police Ombudsman of Northern Ireland (OPONI), the Coroners Service of Northern Ireland (CSNI) and inquiries. We continue to work with individuals who have had to wait far too long for justice, and continue to support them in their use of the available legal mechanisms to access to the truth. We have received wide recognition of work including as the first winner of the Parliamentary Assembly of the Council of Europe’s Human Rights Prize in 2009 alongside other honours.

Basis and dangers of Prioritisation

1. Clearly, there is a duty on the Coroner/Coroner’s Service to apply the law and provide equal access to justice in relation to coronial inquiries and the holding of inquests.

2. Changes in the application of criteria and/or other forms of unequal treatment of cases can usher in human rights problems in themselves, and any steps in this regard should be, not only warranted on a practical level, but very tightly considered against potential challenges.

3. The principled position may, justifiably, be taken that case selection and prioritization both violate the equality of access to justice, in that prioritisation risks providing a two tier system. Practically speaking, a failure to prioritise may also be problematic.

4. One approach might be that, as Government is seized of the obligation to comply with Article 2 in relation to the McKerr group of cases, and has indicated to the Council of Europe on more than one occasion, that inquests are the Government’s vehicle of choice in this respect (in the context of a broader ‘package of measures’), it falls to Government to resource the inquest process accordingly.

5. To the extent that it fails to do so – the buck stops with the Executive. The Coroner has alerted all relevant government departments (devolved and otherwise) to the difficulties caused by lack of resources and, arguably, should do no more than continue to do the best job that can be done in the circumstances.

6. Another approach, which seems closer allied to Lord Chief Justice (LCJ) thinking as outlined to date, is to gather in as much information as possible in relation to extant legacy cases, and earmark those most ready to proceed to inquest hearing – a case of getting on with what we can. A problem does, however, arise if getting on with the most straightforward cases detrimentally impacts on the more complex cases, some of which may have more strategic significance, and knocks them further into the long grass when they are already crippled by delay.

7. The fact is, if the government wishes to prioritise certain cases over others, or to choose – even at this late stage – a modality other than inquests to fulfil its Article 2 obligations, it is free to do so – subject of course to the extent to which any alternative system/process is fit for purpose, and always mindful of legitimate expectations (and legal imperatives) which have already been created.

8. Case management by Coroner’s Service is also clearly permissible and, indeed, a requisite in terms of efficiency and effectiveness. However, Coronial Service of Northern Ireland (CSNI) runs the risk of becoming a political tool if it is seen to be, at some level ‘making good’ the government’s deficit or letting government off the hook, through rendering certain cases unviable, while prioritising others

9. If, as President of the Coroner’s Court, the LCJ desires to employ transparent, fair and, ideally, agreed criteria to enable prioritisation, there is clearly much to commend this course of action. The current system is dysfunctional and something requires to be done. However, a difficulty arises if, de facto, ‘prioritisation’ means that certain cases will be so far down the queue as to render any possibility of them being heard, to all intents and purposes academic

10. Prioritisation clearly occurs in a range of settings from business settings to international criminal tribunal level.[1] What is clear, is that the issue is fraught with risk, and there is no magic formula. Deciding whether a matter is a priority depends on the interplay of many factors. It is important to recognise that some of these may not be identified upfront and some may be subjective. Thus, the process for prioritising should remain flexible. Rigid formulae for determining whether a matter is a priority can be problematic – and received wisdom would suggest the need for priorities to be kept under review.

Prioritisation must be based on clear strategic objectives

11. If prioritisation is to be based on clear strategic objectives, it is key to consider from the outset what the strategic objectives of CSNI are and should be. Is it to conduct effective coronial investigations in accordance with the law, while ensuring the legitimate needs of families (and broader society) are respected? Is it to hear as many inquests as possible year on year to reduce visible backlog? Beyond legislation and case law, where are CSNI objectives set out? How can cases be prioritised absent same?

12. Many prioritisation exercises begin with some form of SWOT analysis – identifying strengths, weaknesses, opportunities and threats. If this step is bypassed, the danger is that prioritisation criteria that emerge might miss something which turns out to be significant/crucial.

13. A prioritisation exercise should commence with gathering available information to identify possible agency objectives and priorities, assessment of the options identified in terms of their importance, feasibility, resource requirements, and other relevant factors and the selection of specific objectives and priorities for incorporation in the agency’s strategic plan.

Potential Prioritisation criteria

14. A review of prioritisation literature would suggest the following as important indicators for according priority:

a) Strategic significance

i) Is a case just about individual incident or is there wider societal benefit?
ii) Is there likely to be an indirect effect on societal welfare (e.g. in assisting to prevent recurrence of dysfunctional modalities, in opening up a bigger picture of benefit to the peace process etc)?
iii) Are there societal/organisational lessons to be learned?
iv) Does the case relate to respect for the rule of law/other key governance questions?
v) What is the position of a particular case/cases in the hierarchy under investigation (eg is the fact of deaths being caused by state agents important? Might inquests be significant in terms of identifying patterns/wider implications?)
vi) The extent to which a case might take investigation to higher political, military, police and civil chains of command;
vii) To what extent the case fits into a larger pattern-type of ongoing or future investigations (eg is a case of such import that it deals with issues that potentially underpin the investigation of other incidents/legacy cases and logically should be dealt with in advance of (or grouped with) others?
viii) Number of victims?
ix) Nature of acts?
x) Duration and repetition similar incidents?
xi) Location of the incident; –  linkage to other cases?
xii) Extent of evidence/witness availability?
xiii) Might the inquest showcase or pattern potentially wrongful activity?
xiv) Is the case a media/government/NGO target?
xv) The extent to which a successful investigation of the case would further strategic aims;
xvi) Are there public policy considerations relating to the development or protection of a specific sector of society,
xvii) Are there victim/witness protection considerations relating to areas with a significant number of interested persons?
xviii) Might the case be expected to have a stronger impact than others on the welfare of vulnerable/disadvantaged persons or a specific sector of society? Though note, agencies should not necessarily neglect sectors that are not high priority at the moment.
xix) To what extent does the hearing of certain cases need to underpin/precede others?
xx) Potential impact of a project on welfare, justice or society as a prioritisation criterion.
xxi) Does the case have institutional significance? (Might it apply an innovative approach, establish helpful precedents, test new legal and/or economic approaches, build credibility of the agency or it is useful for the purposes of capacity building?)
xxii) What are the implications of this case not being heard as a priority?
xxiii) Is there any associated deterrent effect of the case being heard/not heard?
xxiv) Does the case concern an area of high international interest, where the case law is being developed with related cases in a number of other jurisdictions?
xxv) Does the case present an opportunity to contribute to cutting edge impact?

b) Legal Imperative

i) Prioritisation requires to take account of relevant factors such as a legal duty to act once certain circumstances have materialised.
ii) Is there any additional/particular legal imperative that the case be brought to fruition (eg subject of ECHR judgment, S.14 referral or domestic court judgment)?
iii) Agencies may decide to prioritise projects which are more likely to involve evidence of a violation of the law based on initial evidence and assessment tools.
iv) Value in grouping cases?
v) Would hearing this case assist with judicial notice in relation to other cases?
vi) Would hearing this case assist with proving things once/establishing a factual narrative that could be drawn on in other cases?
vii) Would there be value in hearing certain cases in advance of others in terms of outlining evidence in a logical manner that would be in ease of subsequent cases?

c) Risk

i) Availability of witnesses if not prioritised (eg likelihood of witnesses dying/ otherwise becoming unavailable to the Court)
ii) What is lost by not bringing the case to speedy fruition?
iii) Is there a risk of starting what cannot be delivered?
iv) Is the risk of continuing to do the best job possible within resource constraints greater or lesser than not continuing at all?

d) Resources

i) There is a need to honestly and clearly identify legal, organisational, political and resource constraints. However, there are also clearly issues if resource becomes the deal-breaker in a case of high significance.
ii) Is it problematic if prioritisation is based on resource considerations, when the lack of provision of resources may, in itself, be a means by which criticism of government/another agency can be thwarted?
iii) Is it necessary to involve the allocation of fresh resources to a priority project?
iv) Is it a matter of picking the right tool or tools, or adding a new tool, to best address the matter at hand? Resource allocation decisions should consider the potential costs to the public as well as the agency, of pursuing (or not pursuing) particular activities.
v) The availability of specific types of investigative powers will influence the agency’s possibilities to deliver on its mission and strategic objectives.
vi) Are there sufficient funds to ensure the physical and information technology infrastructure required to bring the case to fruition?
vii) Is Coroner’s Service sufficiently facilitated to hire appropriate personnel and, where necessary consult outside experts? (For example, some projects resulting from the strategic objectives of an agency may require expertise that is not readily available in-house and is unlikely to become available within the relevant timeframe of the project.)
viii) The ability to tailor hiring actions to specific requirements and to complete hiring actions relatively quickly will affect the agency’s

Categories that might be prioritised include:

  • Sectors where previous redress has failed to deliver
  • Complex cases
  • Problematic sectors (i.e. sectors with a history of alienation from State)
  • Sectors the functioning of which has a significant impact on public finances
  • Sectors the functioning of which has a significant impact on citizens
  • Sectors in crisis
  • Sectors in development
  • Sectors where there is a need to analyse patterns and trends
  • Absent any other qualifying criteria – chronological order unless compelling reason why not
  • Order in which came into the system

Dangers

The prioritisation of cases cannot just be about improving numbers of cases heard. Superficially, while it may look good to be clearing the backlog, this cannot be at the expense of more complex cases never getting an airing.

This is not just about the identification of risks, but also involves considerations as to their probability and impact in given cases. Strictly speaking, a thorough prioritisation process would require these to be prioritised from lowest to highest.

The issues at stake in terms of the more complex cases do call for additional time, commitment and resources, but equally may go to issues at the heart of governance, where the festering of rumours and allegations over decades have been utilised to question the bona fides of the current peace process.

Feasibility is an attractive consideration but, there are problems with prioritising something straightforward over something more complex which may in fact shine a light on other cases, and, in some instances, indicate they are not necessarily as straightforward as first appears.

Is there something to be said for getting big cases on? Stalker Sampson has a particular significance in that it combines consideration of police, paramilitary and civilian deaths.

Based on their experience and knowledge, staff on the ground are often in a good position to know “what’s bubbling out there”, and can provide agency leadership with valuable input on the most pressing and the newest emerging issues and the best approaches to tackle them.

Factors to be considered in determining prioritisation

Impact: What would be the likely direct effect on individual and societal welfare where the intervention takes place?

What would be the likely indirect effect on welfare/attitudes to the administration of justice?

What would be the expected additional impact?

Strategic significance: Does the work fit with CSNI strategy? Where is this set out? Is the CSNI best placed to act? What is the impact of the work on the balance of the CSNI’s portfolio of current work?

Risks: What is the likelihood of a successful outcome?

Resources: What are the resource implications of doing the work?

Where appropriate,

Risks: The allegations related to an area characterised by relatively little case law relating to the specific practice, (eg role of executive) balanced against a persuasive theory of harm, and strong arguments based on established legal principles.

Resources: Resources – presented an opportunity to develop the knowledge and capabilities of OFT staff which would be valuable in taking forward other cases in this and other sectors. As in other cases, all relevant principles were balanced in the round, CSNI also needs to consider the timing and resource requirements of its work to ensure that its duties were appropriately met within the confines of the resources available.

International Criminal Prosecutions

The following are some principles of prioritisation that can be derived from international criminal prosecutions:

  • Age and health of the victim’s family (investigations should be completed with sufficient time to complete any inquest in their lifetimes);
  • Age and health of key witnesses (when known);
  • Degree of access to evidence (material and witness testimony);
  • Security of victims and witnesses during the investigation; and
  • Scale of the deaths (number of victims)
  • Reoccurrence or persistence. Repeated or continuing commission of incidents such as this,
  • Abuse of power. For State officials or other actors with a position of power, to abuse the trust vested in them by the community to commit acts of nature alleged
  • Victim vulnerability – eg where children are the victims
  • Impact. When the action has a broader or long-term impact beyond the immediate victim or damage.

Thank you for taking the time to consider our submissions.

Yours sincerely,

Yasmine Ahmed
Director Rights Watch (UK)
32-36 Loman Street
London SE1 0EH
0207 922 7985
www.rwuk.org