Court of Appeal: Statute gives DOJ broad discretion in Police Ombudsman funding decisions

A finding of the High Court that the the Department of Justice (DOJ) had failed to provide sufficient funding to the Office of the Police Ombudsman for Northern Ireland (PONI) has been overturned on appeal.

Emphasising that the Police (NI) Act 1998 provided the DOJ with the discretion to provide sums “as appear to be appropriate”, the Court of Appeal found that the Act had imposed a statutory duty upon the DOJ to decide on the distribution of resources, and that the Courts did not have unfettered discretion to frustrate this duty.


In March 2017, the High Court declared that the DOJ acted unlawfully by failing to provide a sufficient level of funding to the PONI to enable it to carry out its statutory obligation to investigate a complaint made by Patricia Bell within a reasonable period of time.

Ms Bell is the daughter of Patrick Joseph Murphy who was murdered in November 1982. The Historical Enquiries Team published a report into his death in November 2009, and Ms Bell’s sister made a complaint to PONI the following month but was advised that the complaint could not be investigated due to a lack of funding.

Ms Bell sought a judicial review of that decision.

The trial judge concluded that underfunding of the PONI was “most directly” the result of a failure by the DOJ to provide adequate resources.

Police (NI) Act 1998

The Police (NI) Act 1998 provides that the DOJ should pay to the PONI such sums “as appear to be appropriate” for defraying the expenses of the office.

Lord Justice Gillen was satisfied that this gave “considerable scope to the decision maker” – i.e. the DOJ.

Furthermore, “the question whether the Government allocates sufficient resources to any particular area of state activity” was not normally justiciable.

“The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the Court must necessarily be in holding a decision to be irrational”.

In the absence of a public law failing, such a decision would usually be unimpeachable – however, “…when issues are raised under Articles 5 and 6 of the ECHR… the Court may be required to assess the adequacy of resources, as well as the effectiveness of administration”.

Court of Appeal

The burden of proof rested on Ms Bell to establish both the unlawful conduct on the part of the DOJ and that a public law wrong had been committed.

Counsel for Ms Bell contended that if parliament wanted resources to be a factor, then a change of legislation was necessary.

Lord Justice Gillen said that this had to be contrasted with circumstances where the decision maker had a wide discretion that included responsibility to decide how to distribute resources among competing needs.

The Police (NI) Act 1998 imposed a statutory duty on the DOJ – and the Court did not have an unfettered discretion to frustrate that duty.

Emphasising that the courts should only intervene upon clear evidence that the PONI was being starved of funds so as to deliberately frustrate Parliament’s intention to establish that important office and to implement the duties arising therefrom; Lord Justice Gillen was satisfied that there was “not a scintilla of evidence” that this was the case.

Satisfied that Parliament did not intend that the DOJ had to provide whatever sums were requested by the PONI for every activity considered necessary or reasonable by the PONI; Justice Gillen stated that if this was parliament’s intention it would have been clear from the legislation.

The phrase “as appears appropriate” conferred a very broad latitude and discretion; affording “considerable scope to the decision maker to make such sums available to the PONI as it deems appropriate having taken into account for example various resource based issues or competing claims within its remit”. As such, it could not reasonably be suggested that the entire DOJ budget should be assigned to the PONI if this was what was needed to fulfil all PONI tasks.

Lord Justice Gillen concluded that the DOJ took the impugned decision in good faith, rationally and compatibly with the express or implied statutory purpose.

As such, the trial judge failed to adequately address and recognise the nature and width of the broad discretion vested in the DOJ under the Police (NI) Act 1998 and had thus fallen into error.

Delivering the judgment of the Court of Appeal, Lord Justice Gillen granted the appeal and reversed the findings of the trial judge.

  • by Seosamh Gráinséir for Irish Legal News