In the matter of an application by Bridie Brown for Judicial Review

Permission to Appeal application lodged

Case summary
Permission to Appeal
Previous proceedings

Case summary

Case ID

UKSC/2025/0091

Parties

Appellant(s)

The Secretary of State for Northern Ireland

Respondent(s)

Bridie Brown

ICRIR

Issue

In summary, did the Court of Appeal err by: (1) Concluding that the ministerial advice was deficient, in a way which failed to apply the correct standard of Wednesbury irrationality; and then not permitting the Appellant to reconsider the decision in light of full and fresh advice from officials addressing the matters identified by the Court of Appeal. (2) Assuming the role of decision-maker in this case and overstepping its constitutional boundaries. (3) Failing to properly consider what is characterised as the ‘floodgates argument’. (4) Taking into account its recent decision in Dillon, despite that decision being subject of an ongoing appeal to the Supreme Court, and the relevant part of the decision being a section 4 Human Rights Act (“HRA”) declaration that did not change the law. (5) Ignoring the scheme for remedial action under the HRA, and or the Appellant’s appeal rights in relation to Dillon. (6) Concluding, in both its consideration of the substantive appeal and in relation to remedy, that this case was an exceptional one that could be distinguished from other similar Troubles related cases. (7) Concluding that the choice faced by the Secretary of State for Northern Ireland (“SOSNI”), when considering the appropriate investigative mechanism to discharge the Article 2 European Convention of Human Rights (“ECHR”) investigative obligation, was a “binary one” meaning that the only lawful option available was to order a Public Inquiry. (8) Then ordering the mandatory holding of a public inquiry.

Facts

On the night of 12 May 1997 Sean Brown was abducted outside Wolfe Tone GAA club in Bellaghy, Co. Derry. His body was found in Randalstown, Co. Antrim after being subjected to serious assault and being shot dead. This was initially attributed to loyalist paramilitaries. In February 2024 however an investigation indicated that a number of individuals linked to the murder were agents of the state. The investigation opened by the Royal Ulster Constabulary was closed in July 1998 with no individuals charged. The applicant made a complaint to the Police Ombudsman for Northern Ireland in 2001, which resulted in a report published in 2004. The report concluded that an earnest effort to identify the murderers could not be evidenced from the investigation file. An inquest was opened in 1997, which faced significant delays. In November 2021 the Brown family brought judicial review proceedings challenging the failure to commence an inquest and were awarded damages. The inquest hearing commenced in March 2023. Public Interest Immunity hearings were held in January and February 2024. The parties agree (as they have at all times during this litigation) that an investigation into the death has not yet been completed which is compliant with Article 2 of the European Convention of Human Rights (“ECHR”) and that such an investigation should be carried out. On 4 March 2024 the Coroner handed down an open ruling on the PII claims, criticising failings on the part of state agencies in their disclosure duties, but indicating that the material met the PII threshold. On 8 March 2024 the Appellant wrote to the Coroner asking him to consider whether he would be minded to exercise his powers under section 9(6)(a) of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (“the Legacy Act”), to refer a closed inquest to the ICRIR. This request was refused, and the Coroner requested that the Appellant establish a public inquiry. Judicial review proceedings were commenced by the Applicant on 22 May 2024. Leave was granted on 4 June 2024. SOSNI decided not to establish a public inquiry and wrote to both Mrs Brown and the Coroner on 13 September 2024. He indicated that he considered ICRIR to be capable of discharging the government’s human rights obligations. On 20 September 2024, the Court of Appeal handed down its judgment in Re Dillon’s Application [2024] NICA 59 (“Dillon”), which found the ICRC was incapable of holding Article 2 compliant investigations in certain circumstances. Thereafter, officials provided a further submission to SOSNI to consider whether a different decision should be reached. On 12 November 2024, SOSNI indicated that he would not establish a public inquiry, but that there was “a clear commitment to ensure the ICRIR is made ECHR compliant.” On 4 December 2024, the Appellant announced that a Remedial Order would be laid before Parliament to remedy those deficiencies in the 2023 Act found at first instance in Dillon. On 17 December 2024, Mr Justice Humphreys in the High Court delivered his judgment, with the terms of his Order filed on 23 December 2024 granting the application for judicial review, and inter alia granting an order of mandamus that the SOSNI be compelled to cause a public inquiry to be held. The Appellant appealed against the whole of the judgment. On 3 April 2025, the Court of Appeal dismissed the Appellants’ appeal, upholding the judge’s decision, finding that the Appellant acted unlawfully in refusing a public inquiry, and declaring that public inquiry must be held without further delay. The Court adjourned the case for four weeks to give the Appellant time to consider the judgment and to confirm the mechanism which he proposes to comply with the declaratory order. On 2 May 2025, the Court of Appeal refused the Appellant’s request for more time to consider the decision, and made a mandatory order requiring the Appellant to hold a public inquiry into the death of Sean Brown on 12 May 1997, stayed until 2 June 2025. The Appellant appeals these decisions.