Two Divisional Court judgments have considered the position regarding the application of Article 6 of the European Convention on Human Rights (“ECHR”) (the right to a fair trial) in judicial review proceedings regarding a decision not to hold an inquiry, and the timeframe within which a judicial review of an inquiry under the Inquiries Act 2005 must be brought.

Key points

  • In order to engage the right to a fair trial under Article 6 ECHR, there must be a determination of civil rights and obligations.
  • Breaches of the state’s Article 3 ECHR duty to investigate allegations of ill-treatment can give rise to civil rights; for example, if individuals bring claims for damages associated with these breaches.
  • However, any duty to investigate Article 3 breaches by way of a public inquiry is not a duty owed to claimants who are not victims and therefore has nothing to do with such claimants’ civil rights.
  • Any judicial review of an inquiry constituted under the Inquiries Act 2005 must be brought within 14 days of the claimant becoming aware of the decision in question. The courts will uphold this tight timeframe unless there are exceptional circumstances.

Application of Article 6(1): R (Reprieve) v Prime Minister [2020] EWHC 1695 (Admin)

Background

In 2010, the Prime Minister announced that an independent inquiry would be established to investigate the alleged involvement of the UK intelligence services in the rendition and mistreatment of detainees held by foreign security services following the events of 11 September 2001. A report on the inquiry’s preparatory work was published in December 2013 and the Government invited Parliament’s Intelligence and Security Committee to investigate into the issues raised in the report; two separate reports covering these issues were published in June 2018. The Government announced, on 18 July 2019, its decision not to hold a public inquiry on the basis that various steps had already been taken to improve policy and practice.

The claimants, a human rights organisation (with particular expertise in the investigation of human rights breaches abroad) and two Members of Parliament, launched a judicial review challenging the Prime Minister’s decision not to conduct an inquiry, on the grounds that this decision constitutes a breach of Article 3 ECHR. Article 3 ECHR provides for freedom from torture, inhuman and degrading treatment or punishment. The claimants argued that the state was under a positive obligation to investigate the allegation of ill-treatment and the defendant’s decision not to hold an inquiry breached that obligation. The claimants also argued that the decision was irrational because the steps taken by the Government were not a sufficient reason for abandoning the previous decision that a public inquiry was necessary.

The Divisional Court was called upon to establish at a preliminary hearing inter alia whether Article 6(1) ECHR applied to the judicial review proceedings.

Judgment

The Divisional Court stated that its task in establishing whether Article 6(1) applied was a narrow one rooted in two indisputable principles: (1) a fair trial is a cornerstone of the rule of law and (2) the court’s function in judicial review proceedings is to ensure the scrutiny of executive action in the public interest. Consequently, even though the court was sympathetic to the claimants’ argument that the intelligence service does not operate above the law, its scope was very defined.

Article 6(1) establishes that “in the determination of his civil rights and obligations… everyone is entitled to a fair and public hearing”.  The claimants argued that Article 6(1) applied to the judicial review proceedings because the decision not to hold a public inquiry breached the defendant’s duty to hold an effective investigation into complaints of human rights abuses under Article 3 ECHR. The court accepted that breaches of the state’s Article 3 investigative duty could give rise to civil rights; for example, if individuals brought claims for damages associated with these breaches. However, in any public inquiry, the claimants would seek a determination on behalf of other individuals whose Article 3 rights might have been breached. The court concluded that the claimants could not possibly be regarded as victims of Article 3 violations. It followed that any duty to investigate Article 3 breaches by way of a public inquiry was not a duty owed to the claimants as victims. In these circumstances, it was difficult to envisage how the present judicial review proceedings – which concern the investigative duty – had anything to do with the claimants’ civil rights. The court therefore did not accept the claimants’ submission that Article 6(1) was engaged in these proceedings.

It is interesting to note the court’s observation that even though Article 6(1) was not engaged, the decision’s legality would still be appropriately examined under conventional judicial review principles. The judgment appears to be another example of the willingness of the courts to utilise domestic principles of public law to ‘plug the gaps’ where EU law and/or the ECHR does not apply.

Timescale for starting judicial reviews of inquiries: R (EA and Anor) v Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin)

Background

Following the Manchester Arena bombing, on 22 October 2019, the Secretary of State for the Home Department opened an inquiry to investigate the circumstances surrounding how 22 people lost their lives in the attack. The Chairman of the Inquiry announced on 21 April 2020 his decision not to grant the claimants, three survivors of the bombing, core participant status. Twenty-three days later the claimants invited the Chairman to reconsider that decision, but he declined to do so and ten days later the judicial review claim was issued. The High Court was called upon to decide whether the application for judicial review was made out of time and if so whether time should be extended.

Judgment

The Inquiries Act 2005 provides that any judicial review of a decision made by an inquiry panel or by a Minister in relation to an inquiry must be brought within 14 days after the day on which the applicant becomes aware of the decision, unless that time is extended by the court. The Divisional Court held in this case that the proceedings should have been commenced within 14 days of the Chairman’s ruling of 21 April 2020 on core participant status.

The court also ruled that an extension of time would not be granted. In making its decision, the court stressed the importance of complying with the time limits for starting proceedings and that this is especially the case with public inquiries to ensure the inquiry is conducted efficiently. It noted that delays in relation to inquiries cause distress to those involved, impact the ability of the relevant authorities to learn from their mistakes, and cause expense. The inquiry had already been commenced so these factors weighed even more. The court was also swayed by the fact that the claimants had been late in filing their initial application to join the inquiry.

This judgment makes clear that unless there is a truly exceptional reason, a court will not extend time for judicial review challenges of decisions of public inquiries. The onus is firmly placed on prospective judicial review claimants to ensure their application is made in time. The judgment also clearly indicates that where there is any doubt as to which of a series of decisions is the key decision for the purposes of commencing judicial review proceedings, the safest option from the claimant’s perspective is to assume that time runs from the date of the earliest decision.

Andrew Lidbetter

Andrew Lidbetter
Partner
+44 20 7466 2066

Nusrat Zar

Nusrat Zar
Partner
+44 20 7466 2465

Jasveer Randhawa

Jasveer Randhawa
Of Counsel
+44 20 7466 2998