McCallion & Ors, Re Application for Judicial Review  NIQB 30 (09 July 2001)
Neutral Citation no. NIQB 30
Judgment: approved by the Court for handing down
(subject to editorial corrections)
By this application for judicial review the three applicants, who are all widows of men who were unlawfully killed, challenge the decisions of a Minister of State, taken on behalf of the Secretary of State for Northern Ireland, not to exercise his discretion under Article 10(2) of the Criminal Injuries (Compensation) (Northern Ireland) Order 1988.
Article 10(2) of the 1988 Order empowers the Secretary of State for Northern Ireland, (if he considers it in the public interest to do so), to pay to a person ineligible by reason of Article 5(9), such sum as would not exceed the compensation that he might otherwise have received. Article 5(9) of the Order provides that no compensation shall be paid in respect of a criminal injury to any person who has been a member of an unlawful association or who has been engaged in the commission, preparation or instigation of acts of terrorism.
It is alleged that the husbands of the applicants had been engaged in acts of terrorism and in one case had been a member of an unlawful association. On that account, the applicants were refused compensation. They then applied to the Secretary of State that he should exercise his powers under Article 10(2) and that led to the decisions that are under challenge in these proceedings.
1. Mrs McCallion
On 31 December 1998 some short time after midnight, Peter McCallion, a forty-year-old man, was involved in a fight with another man at Racecourse Road, Londonderry. In the course of the fight, Mr McCallion suffered injuries that caused his death. He left a widow, the first applicant, and four children. Three of the children had been born to Mrs McCallion before her marriage to the deceased but he had treated two of these as children of the family. Mr and Mrs McCallion were the natural parents of the fourth and youngest child.
By application dated 23 February 1999, Mrs McCallion applied for compensation under the 1988 Order for herself and her children. This was refused on 27 April 1999. It was stated that the Secretary of State had refused compensation because of the provisions of Article 5(9). Mrs McCallion did not appeal this decision but her solicitors then applied to the Secretary of State to exercise his discretion under Article 10(2) to order that compensation be paid to Mrs McCallion and her children.
The Minister of State who took the decision on behalf of the Secretary of State in all three cases was Adam Ingram MP. He received a submission on Mrs McCallion’s application from the then Chief Executive of the Compensation Agency, D A Stanley. In the submission Mr Stanley stated that there had been no suggestion that the attack on Mr McCallion had been sectarian; rather it appeared to be a case of “name calling which got out of hand”. Mr Stanley then described Mr McCallion’s earlier criminal activity in this way: –
“In 1978 Mr McCallion was a member of PIRA in Londonderry and in August of that year was sent out to ambush an Army patrol. The attack took place on 28 August when soldiers of the Queen’s Regiment were fired upon in Racecourse Road in Londonderry. As a result of the attack one soldier was wounded and later was awarded compensation for the criminal injury he received. Mr McCallion was arrested and convicted of attempted murder of the soldier, the possession of a firearm and ammunition with intent to endanger life and property (two counts) and belonging to an illegal organisation. He was jailed for 18 years and for 15, 12 and 5 to run concurrently.”
Mr Stanley informed the Minister that there was no evidence that Mr McCallion had maintained a connection with any illegal organisation after his release from prison in 1998. He suggested that there was nothing to show that he was “endeavouring to give anything back into the community, outside his home and family”. Mr Stanley further suggested that the crimes of which Mr McCallion had been convicted were “among the most serious”, that his actions almost led to the death of a young soldier and were clearly pre-meditated. He recommended that the Minister should conclude that it was not in the public interest that an award be made and that he should not exercise his discretion in favour of the applicant. The Minister accepted that recommendation.
2. Mrs McColgan
On 24 January 1998, John McColgan, a taxi driver, collected a passenger on Andersonstown Road, Belfast. Ten minutes later he was discovered lying dead on the road on Hannahstown Hill. He had been shot five times in the head. The second applicant is Mr McColgan’s widow. They have three children aged between 6 and 15 years. Mrs McColgan also applied for compensation but this was refused because of Article 5(9) of the Order. She then applied to the Secretary of State that he should exercise his discretion under Article 10(2). This was also refused.
Mr McColgan had been convicted of riotous behaviour in August 1983. For this offence he was ordered to be detained in a Young Offenders Centre for a period of one month but that sentence was suspended for two years. In March 1987 he was convicted of possessing explosives with intent to endanger life or property and possession of ammunition with intent. For these offences he was sentenced to two years imprisonment suspended for two years.
In his submission to the Minister in Mr McColgan’s case, Mr Stanley observed that the police believed that Mr McColgan was the victim of a sectarian killing carried out by the Loyalist Volunteer Force. It was believed that he had been targeted “probably because he had INLA traces”. Mr Stanley also commented on the claim made by the applicant’s solicitors that Mr McColgan had been a devoted father to his children and that he was making a positive contribution to the community by creating a stable family home. Mr Stanley suggested that there was nothing to show that he was endeavouring to put anything back into the community outside his home and family. He made a similar recommendation to that which he had made in Mrs McCallion’s case and the Minister once again accepted that recommendation.
3. Mrs McNeill
On the evening of 17 April 1998 Mark McNeill was alone in his car which had been parked at the rear of a taxi office in Shaw’s Road, Belfast when a number of men approached the car and forced him from the vehicle. He was then shot and fatally wounded. He left a widow, the third applicant, and five children ranging in age from nine years to sixteen. He had been separated from Mrs McNeill since 1993 but kept in regular contact with his family. Mrs McNeill also applied for compensation and when this was refused under Article 5(9) she applied to the Secretary of State that he should exercise his discretion under Article 10(2). Again this has been refused.
The only relevant conviction in Mr McNeill’s case was in March 1985 when he was convicted of possession of a firearm and ammunition in suspicious circumstances for which he was sentenced to be detained in a Young Offenders Centre for four months.
In his submission to the Minister, Mr Stanley stated that, despite the fact that Mr McNeill had no further terrorist convictions, police believed that Mr McNeill was a “sympathiser and that his death was probably due to a feud amongst republican terrorists”.
Although the applications to the Secretary of State were made at different times, the submission made in each case by Mr Stanley to the Minister was dated 27 March 2000 and the decision not to exercise his discretion under Article 10(2) in each case was likewise made on the same day.
The statutory framework
The 1988 Order (and its predecessors) provided for a scheme of compensation to be paid to those who were the victims of a criminal injury. A ‘criminal injury’ is defined in Article 2(2) as meaning: –
“…an injury (including an injury which results in death) directly attributable to-
(a) a violent offence”
A violent offence includes “any offence which was intended to cause death [or] personal injury” and “any offence committed by causing the death or injury to any person, … where the state of mind of the person committing the offence consisted of recklessness as whether he caused death [or] personal injury”.
Article 3 (1) of the Order provides: –
“Subject to and in accordance with the provisions of this Order, where a person sustains a criminal injury in Northern Ireland after the coming into operation of this Order the Secretary of State shall, on application made to him, pay compensation.”
Article 5(9) of the Order provides: –
“… no compensation shall be paid to, or in respect of a criminal injury to, any person-
(a) who has been a member of an unlawful association at any time whatsoever, or is such a member; or
(b) who has been engaged in the commission, preparation or instigation of acts of terrorism at any time whatsoever, or is so engaged.”
Terrorism is defined in Article 2(2) as “the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear”.
Article 10(2) provides: –
“Where, but for Article 5(9), compensation would be payable to any person, the Secretary of State may, if he considers it to be in the public interest to do so, pay to him such sum as does not exceed the amount of that compensation.”
I had occasion to consider this provision in Re Creighton’s Application (2001) unreported and said there: –
“It is to be noted that the Secretary of State may only make such a payment when he considers it in the public interest to do so. Even then he is not obliged to make the payment, although it is difficult to envisage circumstances in which, having decided that it was in the public interest that payment should be made, the Secretary of State would withhold that payment.”
It is clear that Parliament intended that there should be no appeal from the Secretary of State’s decision – Article 16 (which confines appeals to determinations notified to an applicant under Article 12(1) or (2)).
The Bloomfield Report
At the request of the government, Sir Kenneth Bloomfield conducted a review that included an examination of criminal injury compensation in Northern Ireland. In his report (Report of the Review of Criminal Injuries in Northern Ireland: June 1999) Sir Kenneth set out the factors which, he had been informed, were generally taken into account by the Secretary of State when deciding whether to exercise his discretion under Article 10(2) of the Order. These appear at paragraph 3.38 of the report as follows: –
“?the seriousness of the terrorist conviction(s) and the extent of involvement, if any, with an unlawful association;
?the offender’s age at the time the offence(s) were committed and the length of time which has elapsed since the offence(s) were committed;
?his subsequent pattern of behaviour as suggested by his criminal record and information supplied by the police;
?his subsequent pattern of behaviour as indicated by any positive contribution to the welfare of the community;
? whether criminal injuries or criminal damage compensation was paid in respect of any offence committed by the offender and, if so, its amount;
? whether there was any connection between the offender’s criminal behaviour and the injuries or damage subsequently sustained;
? the circumstances which gave rise to the applicant’s claim for compensation; and
?in those cases where payment is to be made, the amount should be appropriate to the particular circumstances of the case.”
In affidavits filed on behalf of the respondent in the present case, Frank Brannigan, acting Chief Executive of the Compensation Agency, confirmed that these were the criteria that had been taken into account by the Minister in deciding whether to exercise his discretion under Article 10(2) in relation to the applications of Mrs McCallion, Mrs McColgan and Mrs McNeill.
The judicial review application
The grounds on which the application for judicial review was made may be summarised as follows: –
1. The decision was procedurally unfair in that the applicants were not given information in advance of the Minister’s decision about the material on which he would base his decision; they were unaware of the Bloomfield criteria and were deprived of the opportunity of making representations. It was also claimed that they were not given reasons for the decision after it had been made.
2. The Minister failed to take into account a number of material factors. He was not provided with any analysis of the seriousness of the various offences of which the deceased had been convicted.
3. The Minister took into account a number of irrelevant considerations including, in the case of Mr McNeill, that he was a republican sympathiser.
4. The decision violated the applicants’ Convention rights, in particular, under Articles 2, 8 and 14.
5. It was contrary to the United Nations Convention on the Rights of the Child.
6. The decision was irrational.
(i) Lack of information in advance of the decision
The input of the applicants in the decision-making process was confined to a series of letters written on their behalf by their solicitors, Madden & Finucane. In the case of Mrs McCallion and Mrs McNeill, the Compensation Agency had invited the applicants’ solicitors in June 1999 to provide details of any activity that each of the deceased had been involved in since his release from prison that had made a positive contribution to the welfare of the community. In response to the letter relating to Mr McCallion, Madden & Finucane replied on 4 October 1999 as follows: –
“When Peter (deceased) met Ann-Marie in 1985 Ann-Marie had separated from her previous husband and had two children Lianne and Marissa from that marriage. Peter and Ann-Marie moved in together and from that point on Peter treated Lianne and Marissa as his own. They married in December 1993 and they subsequently had a little boy, Connor 1997.
Peter was a devoted and loving father to all the children and had helped create a very close and supportive family with Ann-Marie. You have asked for information that shows Peter’s positive contribution to the welfare of the community and we would submit that Peter’s successful efforts in raising three children, creating a secure and loving environment for his family is clearly a positive contribution and also a testimony to his life since his rehabilitation and reintegration to society since release from prison.”
In relation to Mr McNeill, the solicitors replied on 29 September 1999 as follows: –
“Mr McNeill was a loving and caring father to his children and wife before and after the marriage split in 1993. He had open access to the children and took a keen interest in their welfare spending every Sunday with the children and also taking them away for days at a time. In relation to his daughter, Denise McNeill, he encouraged her Irish dancing taking her to various Feis around Ireland.
We further submit that the conviction which falls under Article 5(9) was not of a very serious nature on the scale of these types of convictions and indeed this was reflected in the sentence of only months imprisonment in YOC. Since our client’s release in relation to the above offence his only convictions were for motoring offences while taxi driving.
In summation we would submit that our client has been a positive contributor to the community by maintaining a caring and loving relationship with his children and also by conducting his life within the law bar a few minor traffic offences.”
Madden & Finucane had not been asked to supply details in relation to Mr McColgan but this may be because they did not come on record for Mrs McColgan until November 1999 and when they wrote asking that her case be dealt with under Article 10(2), they provided information about Mr McColgan as follows: –
“John was a devoted and dedicated father for all his children, he and Lorraine had created a close and supportive family group which has been devastated by his atrocious murder. It is testimony to John that the family have come through the worst of times resulting from his death. He took a keen interest in the welfare of the children, Sean, Mairead and Gavin, indulging Sean’s interest in fishing and taking all the children swimming every Saturday. John also worked hard to earn money to support the family unit.
We respectively (sic) submit that John’s ‘positive contribution to the welfare of the community’ was the creation of a stable family home in which his children could flourish. We feel that this is again testimony to John’s life since his rehabilitation and reintegration to society after serving his prison service (sic).”
The applicants complain that the contribution that they could make to the decision-making process was severely curtailed as a result of the Compensation Agency’s failure either to invite representations on the matters that were likely to influence the Minister of State or to alert them to the matters that were adverse to their cause. Instead they were asked to make submissions on a very limited topic viz the contribution that their husbands had made to the community after their release from prison. Mr Treacy QC on behalf of the applicants submitted that the lack of opportunity to make meaningful representations derived from two omissions. In the first place, the applicants were not aware of the Bloomfield criteria; secondly, they were not told about the matters that weighed with the Minister against them.
On behalf of the respondent, Mr Maguire accepted that there was a duty on the Minister to act fairly in taking the impugned decision but he suggested that this was not an immutable concept. He pointed out that Article 10(2) itself did not prescribe any procedural requirements. The function performed by the Minister was purely administrative and involved a value judgment that was dependent on a wide range of factors, including political considerations. The context did not lend itself to a panoply of procedural rules, he suggested.
This aspect of the case is perhaps best viewed from the perspective of those factors that actually influenced the Minister’s decision. Mr Brannigan in affidavits dealing with each of the applicants’ cases has said that the Minister considered each affidavit in draft and expressed himself satisfied as to their accuracy in relation to those matters that concerned him. One may conclude, therefore, that the matters of consequence that weighed with the Minister are those set out in Mr Brannigan’s affidavits.
In relation to Mr McCallion, according to Mr Brannigan’s affidavit, no adverse comment from the police was received concerning his behaviour and associates since his release from prison. The Minister was informed that an award of £500 had been made to a soldier as a result of the offences of which Mr McCallion had been convicted. He was also told that the assault on Mr McCallion had not been a sectarian attack. The circumstances of Mr McCallion’s conviction and his membership of PIRA were as described in Mr Stanley’s submission. Mr Brannigan also made it clear, of course, that the Minister of State had been advised by Mr Stanley that the seriousness of the offences committed by Mr McCallion was such that he should not exercise his discretion in favour of the application.
This then was the material before the Minister and on which he took his decision. He also had regard to the Bloomfield criteria. Did fairness require that Mrs McCallion should have been informed of these matters before the Minister took his decision?
It is, of course, well settled that what fairness requires will depend on the particular circumstances of the individual case –R v Secretary of State for Home Department ex parte Doody 1 AC 531, 560. So far as the Bloomfield criteria are concerned, as Mr Maguire pointed out, these had been published before the decision was taken and no request had been made by Mrs McCallion’s solicitors for information about the factors that the Secretary of State would take into account. Perhaps of greater importance, however, is the fact that it has not been possible to identify any matter of significance that would have been canvassed on her behalf, had Mrs McCallion or her legal advisers been aware of the Bloomfield criteria. I am not satisfied, therefore, that fairness required that she be informed of these criteria in advance of the Minister’s decision.
In relation to the material that was put before the Minister, again it was not possible for the applicant to point to a particular item on which she would have made specific representations if she had been made aware of this. It was suggested in a general way that she might have been able to emphasise the favourable points that had been made in the submission but nothing of what could be regarded as hostile to the application was identified as requiring representations on her behalf.
Generally, it appears to me that an applicant for the exercise of the discretion under Article 10(2) should be informed of the material that is adverse to the application, unless it can be concluded that he or she must already be aware of this. I shall discuss this in greater detail in relation to the cases of Mrs McColgan and Mrs McNeill. I do not believe, however, that the requirements of fairness demand that material that is favourable needs to be disclosed. Since there was nothing adverse in the submission to Mrs McCallion’s application on which she could have made representations, I do not consider that there was an obligation to reveal the submission’s contents in advance of the Minister’s decision.
In the case of Mrs McColgan, different considerations arise. Mr Stanley advised the Minister that Mr McColgan had been targeted probably because he had INLA traces. Presumably, this information was given because Mr Stanley considered it to be relevant to the Minister’s decision. It must also be considered to be adverse to the application. If Mr McColgan had INLA traces, it would be indicative that he had not remained clear of terrorist connections from the time that he had been released from prison. Mr Treacy has stated that, had Mrs McColgan known that this information was to be given to the Secretary of State, she would have made representations challenging its accuracy. Should Mrs McColgan have been informed that there were INLA traces to her husband? What did fairness require in these circumstances?
Likewise, in relation to Mrs McNeill, a clear distinction can be drawn between her case and that of Mrs McCallion. As I have recorded above, in his submission to the Minister, Mr Stanley had stated that police believed that Mr McNeill was a “sympathiser and that his death was probably due to a feud amongst republican terrorists”. Again, Mr Treacy has stated that evidence could have been presented to the Minister by Mrs McNeill that would have countered this allegation. Should she have been informed of it in advance of his decision?
Although it was given in the context of the need to provide reasons after a decision, the summary by Lord Bingham CJ in R v Ministry of Defence, ex parte Murray  COD 134of the contemporary principles relating to the provision of reasons to a person affected by an administrative decision, is helpful. At pages 136/7, Lord Bingham said: –
“(a) ‘The law does not at present recognise a general duty to give reasons’ (Doody at 564E).
(b) ‘When a statute has conferred on any body the power to make decisions affecting individuals, the court will not only require the procedure prescribed by statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural standards as will ensure the attainment of fairness’ (Cunningham, per Donaldson LJ at 318, quotingLloyd v McMahon  1 AC 625 at 702-703 and Doody at 564F).
(c) In the absence of a requirement to give reasons, the person seeking to argue that reasons should have been given must show that the procedure adopted of not giving reasons is unfair (Doody at 561A).
(d) There is ‘a perceptible trend towards an insistence on greater openness … or transparency in the making of administrative decisions’ (Doody at 561E).
(e) In deciding whether fairness requires a tribunal to give reasons, regard will be had not only to the first instance hearing but also to the availability and the nature of any appellate remedy or remedy by way of judicial review:
(i) the absence of any right of appeal may be a factor in deciding that reasons should be given (Cunningham at 322j)
(ii) if it is ‘important that there should be an effective means of detecting the kind of error [by way of judicial review] which would entitle the court to intervene’ then the reasoning may have to be disclosed (Doody at 565H and also Cunningham at 323a).
(f) The fact that a tribunal is carrying out a judicial function is a consideration in favour of a requirement to give reasons (Cunningham at 323a) and particularly where personal liberty is concerned (Institute of Dental Surgery at 263A).
(g) If the giving of a decision without reasons ‘is insufficient to achieve justice’ then reasons should be required (Cunningham at 323a) as also ‘where the decision appears aberrant’ (Institute of Surgery at 263a, cited with approval in R v Mayor, Commonalty and Citizens of the City of London ex parte Matson (1996) 8 Admin. L.R. 49 at 62)
(h) In favour of giving reasons are the following factors: ‘the giving of reasons may among other things concentrate the decision-maker’s mind on the right questions; demonstrate to the recipient that this is so; show the issues have been conscientiously addressed and how the result had been reached; or alternatively alert the recipient to a justiciable flaw in the process’ (Institute of Dental Surgery at 256H, cited with approval in ex p Matson at 71)
(i) In favour of not requiring reasons are the following factors: ‘it may place an undue burden on decision-makers; demand an appearance of unanimity where there is diversity; call for articulation of sometimes inexpressible value judgments; and offer an invitation to the captious to comb the reasons for previously unsuspected grounds of challenge’ (Institute of Dental Surgery at 257A)
(j) Although fairness may favour a requirement for reasons, there may be considerations of public interest which would outweigh the advantages of requiring reasons (Cunningham at 323b).
(k) The giving of reasons will not be required if the procedures of the particular decision-maker would be frustrated by a requirement to give reasons, even short reasons (Cunningham at 323b).”
It is not always the case that, where reasons must be given after a decision has been made, adverse factors, identified before the decision is taken, must be communicated to the person likely to be affected by it. It appears to me, however, that if it is anticipated that a decision will require to be explained after it has been taken, this must be, at least, an indicator that the person affected should have the opportunity of influencing the decision before it is made. For reasons that I will give presently, I consider that in certain circumstances reasons for a decision not to exercise discretion under Article 10(2) should be given. Some at least of the factors outlined by the Lord Chief Justice are therefore pertinent to the inquiry whether these applicants should have been informed of the matters that were likely to influence the Minister’s decision.
The first question to be addressed is whether “additional procedural standards” require to be introduced in order to “ensure the attainment of fairness”. It is clear that the Secretary of State conceived it to be fair that the applicants should participate in the decision-making process. The letters to Mrs McCallion’s and Mrs McNeill’s solicitors in June 1999 inviting submissions signify as much. But the letters asked for information on a particular topic: details of any activity that the deceased had been involved in since his release from prison that had made a positive contribution to the welfare of the community. The dispatch of the letters alone may not be taken as an indication that the Secretary of State considered that the applicants should be at liberty to make a general submission on any matter that might affect the exercise of the discretion. It appears to me likely that the prosaic explanation for the restricted nature of the inquiry is that, at the same time that the letters were being sent to the applicants’ solicitors, inquiries were being made of other agencies, including the police, and the material concerning the circumstances of the death of the two deceased, Mr McColgan and Mr McNeill, did not become available until some time later.
Whatever may be the reason for confining the inquiry to the applicants’ solicitors, however, I am of the opinion that the applicants were entitled to make submissions on any of the matters that were likely to affect the Minister’s decision as they were adumbrated in the Bloomfield report. It was never suggested otherwise by counsel for the respondent and much was made of the general availability of the report in answer to the claim that the applicants were unaware of the criteria that would be applied by the Minister to the exercise of the discretion. It would be otiose to canvass the publication and ready availability of the report as a reason to dismiss the complaint that the applicants were unaware of its contents, if they were not entitled to make representations on those matters in the first place.
Among the matters that the Bloomfield report identified as factors to be taken into account was the pattern of behaviour of the person who had suffered the criminal injury following release from prison “as suggested by his criminal record and information supplied by the police”. If the applicants were entitled to make representations on this point (as I believe they were), the representations that could be made would only be meaningful if the applicants were aware of the adverse evidence on the issue presented to the Minister by the police.
In a somewhat different context, the Divisional Court in Re Robert Kerr (1999) unreported has confirmed that a prisoner whose licence has been revoked should generally be informed of the reasons for the revocation. Delivering the judgment of the court, Carswell LCJ said: –
“It is now clear from the authorities that fairness requires as a general rule that (a) a prisoner whose licence is revoked must receive at some stage an opportunity to make representations about the revocation and (b) in order to do so effectively he must be made aware of the reasons for the revocation, if he does not already know them. … We do not consider, however, that it is possible to lay down general rules about the stage at which the opportunity to make representations must be afforded or about the extent of any exception to the obligation to give reasons based upon protection of sources of information who might be put in danger. In our view these are matters in respect of which much may turn upon the circumstances of the individual case and it would not be useful to prescribe procedures in any greater degree of detail.”
Although the circumstances were clearly different in that case from the present, the principle holds true in this instance. If the applicants are entitled to make representations, they must be aware of the case that they have to meet. It is my view that to deny them the opportunity to make representations on a matter that they might reasonably be expected to have a case to make is unfair.
The situation here contrasts with that in Re Creighton. In that case I held that the applicant was well aware of the single factor that weighed against him in the Secretary of State’s deliberations. His solicitors had the opportunity (and availed of it) to make representations about that issue. I concluded that fairness did not require that there be disclosure of the submission made to the Secretary of State by the Compensation Agency since there was nothing beyond what had already been said on his behalf by his solicitors that could be advanced by the applicant. I dealt with the issue in this way: –
“In the present case the applicant well knew that he had been refused compensation because of his earlier conviction. He and his legal advisers were clearly alive to the importance of this as a factor in the Secretary of State’s deliberations because they dealt with it comprehensively in the submission seeking the exercise of the discretion under Article 10(2). In the event, therefore, the applicant was aware of the factor that weighed with the Secretary of State in refusing compensation. It was not suggested that he would have canvassed any other matter, had he been told in advance that this was the matter that was likely to influence the Secretary of State to an adverse decision. In these circumstances, I do not consider that fairness demanded that the applicant be told in advance of the considerations that would be unfavourable to him.”
In the case of Mrs McColgan and Mr McNeill, the applicants were aware that the principal reason for the refusal to exercise the discretion was the deceaseds’ conviction of terrorist offences. But neither knew that there was a particular factor about the circumstances of their husbands’ killings that was adverse to their application for the exercise of the discretion under Article 10(2). In my view, “the attainment of fairness” required that they should have been aware of this. It follows that they have established to my satisfaction that the withholding of this information from them was unfair (principle (c) of those listed by Lord Bingham in Murray).
It also appears to me that if the Minister had afforded the applicants the opportunity to make comment on the suggestions made by the police as to the circumstances of the death of their husbands, this would have demonstrated that the issue had been “conscientiously addressed”. I do not believe that inviting the applicants’ comments on these suggestions would have placed an undue burden on the decision-maker. These were discrete matters that could have been addressed succinctly. Clearly, there is no public interest in withholding from disclosure the fact that the police had given this advice nor does their revelation “offer an invitation to the captious” to come up with a specious ground of challenge.
As I have said above, I consider that in certain circumstances reasons for the decision taken by the Secretary of State (or a Minister on his behalf) for refusing to exercise his discretion under Article 10(2) should be given. I do not consider that the Secretary of State is required to volunteer the reasons for his decision; nor do I believe that it is necessary to explain it where the decision comes within the category of an “inexpressible value judgment”. Furthermore, if the reason for the decision (as in Creighton) is obvious, I do not consider that this needs to be recited. Where, however, as here, the decision is influenced by a particular consideration that is unknown to the applicant and there is no public interest requirement that this should be withheld, then it appears to me that this should be explained to an individual applicant upon inquiry. There is no appeal from the Secretary of State’s decision and the withholding of the reasons for the decision could result in a failure to detect “the kind of error [by way of judicial review] which would entitle the court to intervene”. It has not been suggested that the giving of reasons on this limited basis would frustrate the procedures of decision-making. The preponderance of the factors outlined by Lord Bingham appears to me to favour the giving of reasons in these cases.
I have therefore concluded that Mrs McColgan and Mrs McNeill should have been informed of the particular factors that weighed against their applications, before the Minister of State took his decision. Because of the failure to advise them of these factors and to give them the opportunity to make representations on them I will accede to the application to quash the Minister’s decision.
(ii) Lack of awareness of the Bloomfield criteria
I would not have been prepared to hold that the failure of the Minister or the Compensation Agency to inform the applicants and their legal advisers of the criteria set out in the Bloomfield report rendered the decision of the Minister invalid. This report is generally available and it contains a comprehensive list of the matters to which the Secretary of State will have regard. It seems to me that it is the responsibility of individual applicants for the exercise of the Secretary of State’s discretion to acquaint themselves with readily accessible information about the matters that will be taken into account.
(iii) The failure to give reasons after the decision had been taken
I have already made clear my view that the Secretary of State is not under an obligation to volunteer reasons for his decision. Nor do I consider that the provision of reasons is called for when they must be obvious to the disappointed applicant – (see Creighton). Where the reasons for the decision fall exclusively within the realm of “an inexpressible value judgment” they do not require to be expressed, not least because the decision is one taken in the public interest and the Minister is accountable to Parliament for it. But where, as in this case, specific items of information become available on which the applicants might reasonably be regarded as capable of providing some relevant information, then the duty to alert the applicants in advance of the decision marches hand-in-hand with the obligation to explain the decision after it has been made.
In the present case, however, I am satisfied that the applicants have been provided with a full explanation of the reasons for the Minister’s decision by the affidavits that have been filed on behalf of the respondent and, if I considered that reasons required to be given, I would have held that this requirement had been satisfied by the averments in that affidavit – see Re Anglin  unreported, at pages 13/14.
The alleged failure to take account of material factors and taking into account that Mr McNeill was a “republican sympathiser”
The principal matter which, the applicants claim, the Minister failed to take into account was the seriousness of the offences of which the deceased had been convicted. Mr Treacy suggested that there had been no analysis of the circumstances of the various offences that would have allowed the Minister to form a reliable judgment of how serious or otherwise each had been. He pointed to the relatively light penalty imposed in the cases of Mr McNeill and Mr McColgan and claimed that these reflected the comparatively less grave nature of the offences of which they had been convicted.
The submission to the Minister included details of the punishment imposed on each of the applicants’ husbands. I am satisfied that there was sufficient material available to the Minister to enable him to make a reliable judgement as to the seriousness of each offence. It does not appear to me to be necessary that the Minister have an in-depth analysis of every case in order to allow him to make a judgment about the level of seriousness of the offences concerned.
The information given to the Minister that Mr McNeill was said to be a republican sympathiser was no more than a peripheral fact provided by the Chief Executive by way of background. There is no reason to suppose that it was an adverse factor in Mrs McNeill’s case. I do not consider that the Minister was obliged to leave the matter out of account. The decision that the Minister had to take involved a value judgment in which a wide variety of factors (including political considerations) had to be considered. I am not prepared to hold that the deceased’s supposed political allegiance fell outside the range of factors to be considered.
Alleged violation of the applicants’ Convention rights
On behalf of the respondent, Mr Maguire argued that since all the decisions taken in these cases pre-dated the incorporation into domestic law of the European Convention on Human Rights, the Minister was neither required to give effect to the Convention nor to take it into account –R v Secretary of State for the Home Department ex parte Brind  1 AC 696. In any event, he claimed, none of the decisions taken was in breach of the Convention. There was no right to state funded compensation under the Convention.
For the applicant Mr Treacy argued that the decision of the Minister was of continuing effect and it was therefore subject to the Convention. He suggested that where the state had set up a scheme for compensation of victims’ families, it was a violation of Article 14 to deny such compensation to the families of convicted terrorists. It need not be shown, he suggested, that an actual violation of Article 2 or Article 8 be established in order that Article 14 come into play.
The Minister is now, as a public authority, bound by the terms of section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with a Convention right. I accept the argument of the respondent, however, that the Minister, having taken the relevant decisions before the Human Rights Act came into force, was not then so bound. As the Court of Appeal has held inRe Adams (2001) unreported, section 22(4) of the Act provides that section 7 (1)(b) – which enables a person who claims that a public authority has acted in a way made unlawful by section 6 may rely on the Convention rights concerned in any legal proceedings – does not apply to an act that took place before the coming into force of section 7. Even if the Minister’s decisions were in breach of the Convention, therefore, they were not made retrospectively unlawful in domestic law. As the Court of Appeal refused to in Adams, I do not accept that the Minister’s decisions are continuing acts.
Indeed, since there appears to be no prohibition in the 1998 Order against it, each of the applicants would be entitled to apply to the Secretary of State again that he should exercise his discretion under Article 10(2). If such application were made, the Secretary of State would be bound by section 6 in his determination of the application. In the circumstances, it does not appear to me to be appropriate for me to express any opinion as to the possible impact of the Convention on the decision that he might be required to reach.
The United Nations Convention on the Rights of the Child
This Convention is not part of the domestic law of the United Kingdom. As the Court of Appeal held in Adams an important distinction must be drawn between the power to resort to international standards and the obligation to do so. It is permissible to have regard to these but not obligatory to do so. In any event, I am not persuaded that there has been a breach of any of the precepts laid down by the Convention in this case.
This issue can be dealt with briefly. The decision of the Minister of State drew on a wide spectrum of factors, some at least of them political. As has been held in Re Williamson’s Application NI 294, this falls within a category of decision that should be subject to what has become known as “soft-edged review”. In this type of case, the courts should be slow to intervene, recognising that the Minister is accountable to Parliament and that he has taken a decision in the public interest. Quite apart from that consideration, I should have found it impossible to say that this decision was so aberrant or devoid of logic as to merit condemnation as irrational.
I consider that the decision of the Minister in relation to the cases of Mrs McColgan and Mrs McNeill cannot be allowed to stand for the reasons that I have given earlier. I will grant an order of certiorari to quash the decision taken in those cases. I refuse judicial review in respect of Mrs McCallion’s case.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND