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The Court held that a fair trial of the issues was still possible, and suggested that the approach in its judgment could be used to deal with disclosure issues in legacy cases.

Background

In 2007, the Police Ombudsman for Northern Ireland (PONI) published the Ballast Report on police handling and management of identified informants from the 1990s. The report stated that rather than investigate paramilitary activity, police officers in effect protected them.

“Informant 1” was referred to in the report as pointing a gun at John Flynn (the respondent in the within proceedings) in 1992 and trying to shoot him. Furthermore, in 1997, Informant 1 placed an improvised explosive device underneath Mr Flynn’s car – however this did not detonate.

In 2008, Mr Flynn issued civil proceedings against the Chief Constable of the PSNI (the applicant) and his servants and agents arising out of these incidents.

In October 2014, PONI indicated that it was not going to pursue criminal proceedings against the relevant PSNI officers. Thereafter the Chief Constable served an amended defence in which it admitted that Informant 1 was acting as a covert human intelligence source at all material times, and that police officers were guilty of misfeasance in public office. As such, liability was no longer an issue.

The Master made an Order that the Chief Constable make discovery of 94 categories of documents as sought by Mr Flynn.

In June 2016, Mr Justice Colton, on the question of proportionality, concluded that the Order for discovery should issue in respect of 13 categories of documents and not the 94 categories ordered by the Master. This decision was upheld by the Court of Appeal in Feb 2017.

When the discovery application was relisted in March 2017, Justice Stephens rejected submissions from the Chief Constable that it would have to start “from scratch” to compile material, finding that considerable work had already been undertaken for the Ballast Report.

Justice Stephens “acknowledged that the discovery process was resource intensive but that years had passed without compliance and there was no clear, acceptable plan for future compliance”.

His ruling was the subject of the present application for leave to appeal.

Application for Leave to Appeal

The Chief Constable of the PSNI sought leave to appeal Justice Stephens’ ruling.

Counsel for the Chief Constable took issue with the conclusion that there had been no attempt to comply with the Orders but accepted that there had been delay.

The Chief Constable was also critical of the trial judge’s comments on the delay in identifying and recovering the potentially relevant material from the PONI, and contended that there had been no failure to comply with the Order of Justice Colton but rather that the applicant had pursued “entirely legitimate appeals”.

In the Court of Appeal, it was stated that leave should only be granted where the applicant demonstrated “an arguable case with a reasonable prospect of success that the trial judge had gone plainly wrong”.

The issue for the Court was whether it was permissible for the trial judge to reach the conclusion that there had been no attempt to comply with the Orders made by the Master.

The Court of Appeal did not accept that there was no evidence of any attempt by the Chief Constable to comply with orders of the Master.

Lord Chief Justice Declan Morgan said it was clear that the consideration by PONI to the prosecution of police officers explained why the documents were retained by PONI and not returned to PSNI.

The Court accepted that the Chief Constable had been at fault in failing to comply with Orders in 2012/13 and in failing to recover the relevant files shortly after being encouraged to do so in January 2016 and agreed that the affidavit evidence lodged by the Chief Constable about the availability of records identifying the documentation sent to the Ombudsman was “contradictory and unsatisfactory”:

Notwithstanding this criticism, the Court said a fair trial of the issues was still possible. As such, the Court considered:

In order to facilitate these matters, the Court extended time for compliance by five weeks, adding that any further time would depend upon the applicant demonstrating its commitment to facilitate an expeditious and fair trial.

The Court considered that this judgment represented a new approach for legacy cases.