Judicial Review Update NICEM Annual Conference 1 July 2011

1. Judicial Review UpdateNICEM Annual Conference1 July 2011 Gordon Anthony, School of Law, QUB

2. Aims of paper To look at three important themes in the case law of the past year or so Costs and access to judicial review Remedies for the �abuse of power� Cases related to the NI conflict

3. Costs and access to judicial review Protective costs orders (again ...) The tension within Corner House between �public interest� and �private interest� Re Thompson�s Application [2010] NIQB 38

4. Costs and access to judicial review R (Edwards) v Environment Agency [2010] UKSC 57 When do proceedings become �prohibitively expensive�? �Subjective� and �objective� approaches Referral to ECJ ...

5. Remedies and �abuse of power� Abuse of power is .... Appropriate remedy?

8. Loreto Grammar School�s Application Largely a case about substantive legitimate expectation Argued that Catriona Ruane and her officials had failed to make good on an earlier government promise that a new school would be built, with public funding, by 2010 at the latest McCloskey J held, among other things, that there had been �conspicuous unfairness, amounting to an abuse of power ... An unjustifiable breach of trust has occurred�

9. But which remedy? In the ideal world, the school would have wanted the money! But in the real world, the approach of the court needed to be different �The power of further and final decision-making continues to repose in the Minister and the Department ...� The remedies granted were effective, but did not demand a particular course of action

10. R (Lumba) Foreign nationals convicted of offences Detained pending deportation Formal policy position was ... But in reality a different policy was applied There had been abuse of power and false imprisonment Amount of damages? Exemplary damages? But only nominal damages were awarded

11. Re McCartney & MacDermott Concerned with the meaning of �miscarriage of justice� for the purposes of section 133 of the Criminal Justice Act 1988 Earlier authority was House of Lords ruling in Mullen This had left unclear the test to be applied (show innocence or something less strict?)

12. Re McCartney & MacDermott Majority held that there has been a �miscarriage of justice� when a new or newly discovered fact shows conclusively that the evidence against the defendant has been so undermined that no conviction could possibly be based upon it Had been such a miscarriage of justice in this case But not in the conjoined appeal

13. Re McCartney & MacDermott Court also emphasised that the question whether there has been a �miscarriage of justice� is one for the Justice Minister Court of Appeal, on a reference to it, does not decide that question � it assesses the safety of the conviction Justice Minister will then take the ruling of the Court of Appeal into account when determining eligibility under section 133 Future judicial reviews?

14. Re McCaughey A Coroners inquest in 2009 into the deaths of two IRA men in 1990 Did Article 2 ECHR apply? Re McKerr had established definitively that the Human Rights Act 1998 does not have retrospective But then along came �ilih v Slovenia [2009] ECHR 571

15. Silih v Slovenia �The procedural obligation to carry out an effective investigation under Article 2 has evolved into a separate and autonomous duty.� Although it is triggered by the acts concerning the substantive aspects of Article 2 it can give rise to a finding of a separate and independent �interference� ... In this sense it can be considered to be a detachable obligation arising out of Article 2 capable of binding the state even when the death took place before the critical date.�

16. Re McCaughey Supreme Court accepted the logic of the �detachable obligation � This was so notwithstanding that there were considerable reservations of the wider thrust of �ilih The relevance of the �mirror principle�

17. Re McCaughey What are the implications? Doctrinal Practical