6.1 Introduction

Court of Appeal judgments often precipitate a welter of journalistic and academic commentary. In this chapter we provide a thematic overview of the most conspicuous cases that have been handed down over the past 25 years based on our reading of the full case database and our analysis of secondary sources in which they have been discussed, such as academic journals and reputable media outlets. The chapter is divided into two parts. The first part explores politically sensitive cases and the second part examines human rights cases. These classifications overlap to some extent, but we trust they provide a helpful framework for navigating and remembering the long list of conspicuous cases that we have identified.

6.2 Politically sensitive cases

We have classified the cases in this section into two groups: constitutional disputes and conflict-related disputes.

6.2.1 Constitutional disputes

The Court of Appeal has been confronted by a broad range of constitutional cases. We will first highlight some of the most conspicuous public law challenges that the Court has decided when called upon to interpret the Belfast (Good Friday) Agreement and its statutory manifestations, before turning to some of the most conspicuous challenges that the Court has been required to determine as a consequence of Brexit.

6.2.1.1 The Belfast (Good Friday) Agreement

Although the Agreement is non-justiciable in its own right, a large proportion of its content has been put on a legislative basis and the totality of its content is capable of having some legal effects in domestic law via the principle of legality, which holds that the UK Parliament will be presumed by the courts to legislate compatibly with its international law obligations unless it clearly indicates that it intends not to.1 Perhaps the most conspicuous case to have tested the boundaries of these legal effects is Re Robinson’s Application, in which Peter Robinson MLA, who opposed the Agreement, challenged whether the individuals elected as First and deputy First Ministers in November 2001 could validly assume those offices as their election had taken place after the expiry of a six-week time limit provided for by section 16(8) of the Northern Ireland Act 1998. In the Court of Appeal, Nicholson LJ (with whom McCollum LJ agreed) ruled that the 1998 Act ‘should be construed, if possible, so as to preserve the Belfast Agreement, not to imperil it’ and that accordingly Kerr J, in the court below,2 had been correct to adopt a purposive approach to section 16(8).3 A majority in the House of Lords ultimately endorsed this purposive approach to the 1998 Act,4 turning Robinson into a ‘seminal case’ on the concept of constitutional statutes and on the Agreement as an aid to statutory interpretation.5

In subsequent cases, the Court of Appeal has further refined this jurisprudence about how statutory provisions underpinned by the Agreement should be interpreted. It has adopted a mostly restrained approach, which suggests that Robinson set an exceptionally high watermark regarding generous and purposive statutory interpretation. In Re Neill’s Application, for example, the Agreement’s equality provisions implicitly underpinned a challenge to anti-social behaviour orders (ASBOs) and the legislation by which they had been introduced in Northern Ireland.6 Section 75 of the Northern Ireland Act 1998 imposes a statutory duty on public authorities to have ‘due regard to the need to promote equality of opportunity’ between several designated groups, as required by the Agreement. In this case it was argued, inter alia, that the Secretary of State had failed to comply with his section 75 obligations in circumstances involving a policy more likely to affect young males than other demographics. Taking into account the wider legislative scheme of the 1998 Act, the Court of Appeal decided that procedural breaches of section 75 were non-justiciable because an alternative remedy involving the laying of a report by the Equality Commission for political consideration was provided for in Schedule 9 to the 1998 Act. By effectively foreclosing the enforcement of section 75 equality duties by way of the coercive remedies available through a judicial review application, the decision in Neill has been characterised as a ‘leading authority’7 on this delimiting principle of public law.

The Court has been reluctant to provide for legal enforcement of the Agreement’s provisions in other contexts too. In Re McCord’s Application, for instance, it dismissed an appeal where the appellant unsuccessfully argued that the Secretary of State was obliged to publish a policy governing her discretionary power to hold a ‘border poll’ on the constitutional status of Northern Ireland, as well as a policy governing her mandatory duty to hold a border poll under certain conditions.8 The appellant attempted to pray in aid of the Agreement and a purposive approach to the relevant statutory provisions by suggesting, for example, that published policies would ‘allow political parties and individuals to democratically lobby or agitate for their preferred outcome’,9 but none of these arguments succeeded in persuading the Court to intervene.

The judicial reticence evident in decisions such as Neill and McCord can be contrasted with the Court of Appeal’s approach to public law challenges taken in respect of departmental decisions made without ministerial oversight when the political institutions of devolved government envisaged by the Agreement were non-operational between 2017 and 2020. The ‘landmark’10 case of Re Buick’s Application,11 in particular, demonstrates that while the Court is generally willing to afford a wide degree of latitude to public decision-makers faced with difficult situations created by political instability, it is also prepared to issue administratively challenging judgments in order to uphold the rule of law.12 The majority of the Court of Appeal in Buick still attracted some criticism for basing their findings of unlawfulness solely on the cross-cutting nature of the decision involved (which thereby breached a statutory requirement for consideration by the inoperative Executive Committee) rather than on the constitutional necessity of ministerial accountability per se.13 In JR80, however, a differently constituted majority was willing to go further by condemning (though not invalidating) similarly controversial decision-making powers for civil servants that had been cloaked with the protection of Westminster legislation after Buick.14 These judgments thus serve as a reminder that the Court of Appeal’s weighing of constitutional principle and practicality can vary on a case-by-case basis.

6.2.1.2 Brexit

McCorkindale and McHarg have observed how ‘the long process of deciding whether, and if so on what terms, to leave the European Union was one marked by hyper-litigation’ across the UK.15 The same study charts how Northern Ireland was responsible for a fair share of that litigation, with some cases being commenced here but later joined with cases begun elsewhere in the UK when appealed or referred to the Supreme Court;16 whereas other cases remained focused on Northern Ireland specific points of law throughout.17 There has been much written about the substance of these cases already,18 so for present purposes we only wish to observe that the Court of Appeal was involved in them to notably different extents. In Miller/Agnew/McCord,19 for instance, while the Attorney General for Northern Ireland was responsible for referring four of the five questions arising from devolution proceedings in the Northern Ireland High Court to the Supreme Court, the Court of Appeal’s role was largely limited to referring a fifth question which the Attorney had ruled out as meritless.20 In McCord/JR83/Waring and JR83 (No 2),21 on the other hand, the Court of Appeal issued full judgments which were not later considered by the Supreme Court (though Mr McCord did intervene in the Miller/Cherry case with similar arguments to those that had been raised in his own case before the Court of Appeal).22

More recently, the Court of Appeal has been grappling with Brexit’s complicated legal consequences for Northern Ireland, primarily as manifested in the Ireland/Northern Ireland Protocol to the Withdrawal Agreement between the UK and the EU (as amended by the Windsor Framework). The most prominent case of this nature decided by the Court of Appeal thus far is Re Allister’s Application, which was primarily about the Protocol’s compatibility with various domestic law provisions of constitutional significance.23 Both the Court of Appeal and the Supreme Court confirmed that while the Protocol had modified those constitutional provisions, it did so lawfully by way of primary legislation.24 Following Allister, the Court of Appeal was soon required to clarify the legal implications flowing from Article 2 of the Protocol, under which the UK must ‘ensure that no diminution of rights, safeguards or equality of opportunity’ – as set out generally (albeit non-exhaustively) in a particular section of the 1998 Agreement, and in a specific list of anti-discrimination Directives – ‘results from its withdrawal from the [European] Union’. The first challenge to reach the Court of Appeal with Article 2 at its core involved arguments suggesting that a newly promulgated package of abortion regulations discriminated against persons with disabilities.25 While the Court dismissed that appeal on all grounds, thereby confirming the legality of the regulations, its judgment helpfully clarified ‘the six elements test’ for establishing a breach of Article 2.26 It seems likely that the Court’s judgment will therefore be cited regularly in forthcoming litigation, as in the recently heard appeal against Colton J’s judgment in Re Dillon’s Application & Ors, where arguments based on Article 2 of the Protocol enabled him to disapply various provisions of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023.27

6.2.2 Conflict-related disputes

The Court of Appeal has heard many disputes connected to the violent sectarian conflict that plagued Northern Ireland between 1968 and 1998, including appeals which have fastened upon post-conflict laws arising from the 1998 Agreement and subsequent political accords. Under the following two sub-headings, we highlight some of the most prominent criminal and civil appeals that fall within this broadly defined category, excluding those which had human rights law arguments as their focus (these are analysed together with other human rights-based cases in the next section).

6.2.2.1 Criminal appeals

By far the most headline-grabbing of conflict-related criminal cases dealt with by the Court of Appeal in recent years is R v Adams.28 Gerry Adams had appealed against his convictions for attempting to escape from detention on two occasions in 1975. The Court satisfied itself that Mr Adams’s convictions were safe, but its decision was subsequently overturned by the Supreme Court.29 The Supreme Court reached its view by reasoning that the Interim Custody Order underpinning Mr Adams’s detention had been signed by a Minister of State rather than the Secretary of State, contrary to a requirement under the relevant statute, whereas the Court of Appeal’s judgment had placed weight on the Carltona principle which recognises that a Secretary of State’s powers can be exercised by junior Ministers and other officials acting in his or her name. The Supreme Court’s reasoning has been subjected to heavy criticism from several quarters,30 and while its harshest critics have praised the Court of Appeal for reaching a different conclusion by reference to the Carltona principle, the Court of Appeal has also been attacked for permitting the appeal to proceed out of time on the basis of public records disclosed under the 30-year rule.31 The critical response was strong enough to result in sections 46 and 47 of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, which are essentially intended to override the Supreme Court’s decision on the lawfulness of any convictions associated with or akin to Mr Adams’s and to retroactively prohibit any civil claims that might otherwise arise from them.32 However, it should be noted that in the recently decided High Court case of Re Dillon’s Application & Ors, those provisions, in so far as they prohibited claims made before the relevant provisions of the 2023 Act were commenced, were declared incompatible with Article 6 (the right to a fair trial) and Article 1 of Protocol 1 (protection of property) of the ECHR, though not disapplied for being inconsistent with Article 2 of the Ireland/Northern Ireland Protocol.33

There are at least two more criminal appeals which have generated considerable interest among local journalists and the Northern Ireland public more broadly. In R v Gordon, the Court of Appeal concluded that a jury’s guilty verdict which had been returned in 1952 regarding the killing of Patricia Curran was not safe because the appellant’s confession should not have been admitted as evidence in the trial for her murder.34 On this basis, the jury’s finding was quashed, albeit only after many years of stigmatised detention and disgrace for the appellant. The Court’s judgment attracted a particularly large measure of interest because of the enduring miscarriage of justice at its centre and also, in part, because of the murder victim’s status as the daughter of Sir Lancelot Curran, who had been a High Court judge at the time of her murder and subsequently became a Lord Justice of Appeal.35 In R v Stone, the Court of Appeal considered an appeal by Michael Stone against his convictions for various criminal offences in 2008, including two counts of attempted murder and the possession of explosive substances with intent.36 He had been apprehended at the entrance to Parliament Buildings at Stormont by security personnel. When interviewed he said that he ‘had gone to Stormont specifically to assassinate Adams and McGuinness and to disrupt [an] event which could have betrayed Ulster with some unionists voting to share power with Sinn Féin’,37 but he nonetheless sought to have his convictions quashed on the outlandish basis that, inter alia, he had been ‘engaged in performance art work’.38 The Court of Appeal was not persuaded and held that the convictions were safe.39 A newspaper reported that while the appellant ‘sat impassively throughout the judgment after being escorted into court on a walking stick’, on his way out he shouted, ‘the truth will out, gentlemen, believe me’.40 The courage which must be required of the Court in the face of such dangerous characters is perhaps not as widely recognised as it should be.

6.2.2.2 Civil appeals

The broad range of civil appeals that have reached the Court of Appeal in connection with conflict-related matters can be further sub-divided into two categories: tort claims and judicial review applications.

Mallory, Molloy, and Murray have argued that tort claims can be utilised not just as a means of obtaining injunctive relief and compensation but also as an incidental means of ‘truth recovery’.41 In their 2020 paper at least two notable Court of Appeal decisions were highlighted. First, they referred to the high-profile case of Breslin & Ors v McKevitt & Ors, which concerned several actions for damages resulting from trespasses to the person in respect of deaths and injuries caused by the appellants who, as members of the Real IRA, were allegedly responsible for the Omagh bombing on 15 August 1998.42 The authors drew attention to ‘[t]he perception that a greater level of wrongfulness is inherent where a trespass to the person is established, by comparison to negligence, [which] increases its attractiveness to claimants seeking to emphasise the defendant’s blameworthiness’.43 Second, the authors highlighted Flynn v Chief Constable of Northern Ireland as a ‘pathfinder case’ in which the Court of Appeal declined to interfere with an extensive order for discovery in the court below, which the Chief Constable objected to on the bases that he had made an admission of liability rendering it unnecessary and that it was disproportionate.44 Mallory, Molloy, and Murray credit the case for demonstrating how the discovery process in civil litigation could be used (and resisted) ‘because of its potential as a mechanism for truth recovery’.45

The subject matter of conflict-related judicial review applications over the past 25 years has been nothing if not diverse. Some cases have involved challenges to significant public appointments, such as Re Downe’s Application, which concerned a partly successful appeal from the judgment of Girvan J, whereby he granted judicial review of the decision of the then Secretary of State for Northern Ireland, Peter Hain MP, appointing Mrs Bertha McDougall as the Interim Victims Commissioner.46 The Court of Appeal allowed the appeal against Girvan J’s reasoning but decided that the Secretary of State had failed to take into account a relevant consideration; namely, the requirement that he have regard to the relevant Code of Practice in making the appointment. Because of that failure, the Court held that Mrs McDougall’s appointment was unlawful and made a declaration to that effect.

Other conflict-related judicial review applications have involved further decisions made by the Secretary of State for Northern Ireland. In Re Williamson’s Application, for instance, an appeal was dismissed in respect of a ministerial decision not to specify the Provisional IRA under section 3(8) of the Northern Ireland (Sentences) Act 1998 Act, on the ground that it was not maintaining a complete and unequivocal ceasefire.47 If the Provisional IRA had been so specified, one of the people responsible for killing the parents of the applicant would no longer have qualified for early release from prison. The case has been characterised as one which suggested ‘a judicial reluctance to become involved in high-profile political disputes’ in the early aftermath of the 1998 Agreement, with the ‘signals’ it gave being interpreted as one reason why some of the most controversial issues of the day were not taken before the courts at all.48 The same disinclination to interfere with controversial decisions reached by public decision-makers can be discerned in various cases involving issues laden with heightened sensitivity in Northern Ireland, such as parades,49 flags,50 bonfires,51 and citizenship.52

6.3 Human rights cases

Given the legacy of the troubles and the persistent community tensions evident in many of the cases mentioned previously, it was inevitable that appellate judges would be required to apply a human rights lens to a multiplicity of disputes after the 1998 Agreement.53 This section surveys some of the most notable conflict-related human rights cases decided by the Court of Appeal over the last 25 years, together with some non-conflict-related cases determined by the Court with reference to the same provisions of human rights law.

6.3.1 Articles 2 and 3 of the ECHR

In no context was a human rights lens more apparent than that of the investigation of troubles-related killings. A recurring question was whether the investigative duty under Article 2 required such killings to be investigated in an ECHR-compliant way even though Convention rights became part of domestic law only on 2 October 2000, when the Human Rights Act came fully into force. In Re McKerr’s Application, a case where the High Court answered no to that question, the Court of Appeal disagreed.54 On a further appeal, however, the House of Lords ruled that the Human Rights Act did not have that retrospective effect.55 Some six years later, in Re McCaughey’s Application,56 the Court of Appeal acknowledged that the European Court, in Šilih v Slovenia, had meanwhile stated that the investigative duty was a free-standing right which could apply to killings occurring up to ten years before the ECHR became binding on the country in question.57 Nevertheless, the Court of Appeal felt obliged to apply the House of Lords precedent in McKerr. Then four of the seven Supreme Court Justices who heard a further appeal in McCaughey reversed the Court of Appeal, while not expressly overruling the House of Lords ruling in McKerr.58 It seemed that the Court of Appeal just could not get it right!

Prior to the same issue confronting the Court yet again, European judges decided Brecknell v UK, ruling that even if an investigation of a killing took place more than ten years before ‘the crucial date’, the duty to investigate could be ‘revived’ if certain conditions were fulfilled.59 In no fewer than four further cases the Court of Appeal duly held that Article 2 did require an effective investigation: Finucane v Secretary of State for Northern Ireland,60 Re McQuillan’s Application,61 Re Barnard’s Application,62 and Re Dalton’s Application.63 In a fifth case, Re McGuigan’s Application, which raised Article 3 issues (the prohibition of torture), the Court held that the ‘revival’ test was not satisfied, although by a majority it also ruled that the Chief Constable had created a legitimate expectation that an ECHR-compliant investigation would be conducted.64 Four of those five cases were appealed to the Supreme Court.65 The appeal was dismissed in Finucane and McGuigan, with an acceptance in Finucane that the investigative duty should apply even though the killing occurred as many as 12 years before 2 October 2000.66 In McQuillan and Dalton the Supreme Court reversed the Court of Appeal on the basis that the killings had occurred too long ago, even though Mr Dalton was killed just two months before the cut-off point and less than six months before Mr Finucane’s killing.67

Throughout the past 25 years the Court has dealt on no fewer than ten occasions with litigation brought by the family of Pearse Jordan, an unarmed IRA volunteer shot dead by the police in 1992.68 A whole book could be written about that litigation but for present purposes it suffices to note that the cases often required the Court to decide what exactly an Article 2-compliant investigation entails. One such case was appealed unsuccessfully to the House of Lords, where by three to two the Lords confirmed that inquests in Northern Ireland could not return verdicts of lawful or unlawful killing.69 Another was appealed successfully to the Supreme Court, which held unanimously that payment of compensation for delay in holding an Article 2-compliant inquest should not have to await the completion of that inquest.70

The Court of Appeal has wrestled with Article 2 of the ECHR in other contexts too. In Re Meehan’s Application it agreed that a refusal to grant a firearm certificate to a former IRA member should not be interfered with because the applicant had not demonstrated a real and immediate risk to his life.71 In Re Officer L’s Application it upheld Morgan J’s decision that the public inquiry into the murder of Robert Hamill should not have granted anonymity to serving and retired police officers when giving evidence at the inquiry,72 but on appeal the House of Lords said the Court had applied the wrong test under Article 2 and it restored the inquiry’s original decision on the matter.73 In Re A’s Application the Court did grant anonymity to former members of the Royal Irish Regiment who were giving evidence at an inquiry into the murder of a solicitor, Rosemary Nelson.74 A claim by Iris Robinson, the wife of the then First Minister of Northern Ireland, that the hearing of her defamation action against a Sunday newspaper should be held in private because of the risk to her life given her serious mental condition, was also accepted by the Court of Appeal.75 Moreover, returning to investigative obligations, in Re McEvoy’s Application the Court upheld a compensatory award of £10,000 against the police for their failure to ensure an ECHR-compliant investigation into a shooting incident in which the applicant was injured.76

Article 3 featured in the failed attempt by the Northern Ireland Human Rights Commission to convince the Court of Appeal that police were endangering children by not properly controlling protestors who were seriously harassing those children on their way to school.77 The House of Lords and the European Court endorsed that view.78 In Re NICCY’s Application the Court rejected an argument that parental chastisement of their children was a breach of Article 3.79

6.3.2 Other ECHR Articles

In relation to Article 6 of the ECHR (the right to a fair trial), the Court refused compensation to an applicant whose conviction it had previously quashed in line with a judgment of the European Court of Human Rights that his trial had been unfair.80 Years later it also denied compensation to a couple who had been wrongly convicted of allowing property to be used for terrorist purposes.81 The ECHR does not require compensation to be paid merely because a breach of Article 6 has occurred: the declaration of a breach is sometimes considered ‘adequate satisfaction’.

Defendants in criminal trials frequently complain about the prosecution’s failure to disclose evidence which might help the defence, but in R v McKeown the Court of Appeal was not persuaded that there had been such a failure.82 On the other hand, in R v Higgins, an appeal against a confiscation order for a sum exceeding £16,000, the Court found a breach of Article 6 ‘[i]n view of the combination of procedural errors and shortcomings, the protracted delays and the discharge of counsel in circumstances in which the applicant should have had the benefit of legal assistance’.83

Prisoners have been frequent litigants in the Court of Appeal. One issue has been whether revocation of a prisoner’s early release date is lawful. In Re McClean’s Application the applicant failed to convince the Court that an amendment to the Northern Ireland (Sentences) Act 1998 (allowing for the early release of prisoners) was in violation of either Article 5 of the ECHR (the right to liberty) or Article 6.84 The decision by Sentence Review Commissioners did not even engage Article 6 because it did not involve the determination of a ‘civil right’, but the Court did rule (Higgins LJ dissenting) that the Commissioners needed to reconsider McClean’s position because they had wrongly placed on him the burden of proving that he would not be a danger to the public if released immediately. In a later case the Court held that Life Sentence Review Commissioners had breached Article 5(4) of the ECHR by not dealing with a prisoner’s application speedily enough.85

In R v Morgan four prisoners complained that their sentences for terrorist offences had been unlawfully extended by a legislative amendment, in breach of Article 7 of the ECHR (no punishment without law).86 The Court declared the amendment to be incompatible with the ECHR, thinking it was adhering to the Supreme Court’s approach to Article 7, but on appeal the Supreme Court ruled that the amendment did not modify the sentence but merely changed its manner of execution.87 Both courts were referred to all relevant case law from Strasbourg, but while the Court of Appeal concluded that the amendment effectively breached the rule of law,88 the Supreme Court viewed it as not falling within the concept of ‘law’ at all.89 In a different case, where a prisoner argued that a new scheme meant he would receive less home leave than before, the Court found that his Article 8 rights (the right to respect for a private and family life) had been breached.90 Likewise, in Re Conway’s Application the Court remitted a case to the High Court so that an assessment could be made of whether the policy of conducting full-body searches on prisoners entering and leaving a prison was flexible enough to avoid breaching Article 8 in particular cases.91

The Court has also considered Article 8 in a variety of other contexts, such as objecting to planning permission for a building beside the applicant’s home,92 challenging the Housing Executive’s refusal to evict a tenant who was harassing his neighbours,93 establishing a claim to a widowed parent’s allowance,94 and complaining about discrimination against a gay couple who wanted to marry.95 In that last arena the Court said that current legislation on marriage did not strike a fair balance between tradition and personal rights and it emphasised that ‘where the petition of concern is utilised to defeat the will of the Assembly on an issue dealing with a difference of treatment on the grounds of sexual orientation the scrutiny required by the courts is enhanced’.96 The Court displayed a rather conservative stance when it ruled that the ban on unmarried couples adopting children was lawful: the Supreme Court put them right on that matter97 and the Court of Appeal later applied that precedent in Re NIHRC’s Application, which related to adoption by a gay couple.98 It also ruled in favour of a man who claimed sexual orientation discrimination when a bakery refused to decorate a cake he had ordered with the words ‘Support Gay Marriage’.99 Controversially, the Supreme Court allowed the bakery’s appeal. It is arguable that in doing so it failed to take full account of Northern Ireland’s discrete laws on political opinion discrimination.100

Article 8 was cited in three important cases on abortion, where the Court has been moderately activist. In Re Family Planning Association’s Application it declared that the Minister for Health had failed to comply with her statutory obligation to issue guidance to women and clinicians on the availability of pregnancy termination services.101 On the other hand, in Attorney General for Northern Ireland v Northern Ireland Human Rights Commission it held that criminalising abortion did not breach Article 8 even in cases of pregnancy caused by rape or incest or resulting in a fatal foetal abnormality.102 Subsequent regulations providing for abortion were challenged by the Society for the Protection of the Unborn Child as being beyond the Secretary of State’s law-making powers, but the Court dismissed that claim.103

Occasionally the Court has taken what might appear to be unjust decisions but has justified them by indicating it was merely applying the will of legislators, on whom the responsibility for any required reform lies. For instance, in a case concerning access to welfare benefits by persons suffering from serious progressive illnesses the Court emphasised that ‘considerable weight should be given to the views of the primary decision maker’ and that it had been confronted with choices which were ‘for the political process and not for the courts’.104 Furthermore, in Re Misbehavin’ Ltd’s Application it tried to ensure that Belfast City Council took account of Article 10 of the ECHR (freedom of expression) when deciding whether to grant an application for a sex establishment licence by faithfully applying the Human Rights Act 1998.105 But on appeal the House of Lords held that it did not matter whether a public authority took account of human rights standards when reaching decisions so long as no such rights were actually breached by the decision taken.106

In relation to Article 14 of the ECHR and Article 1 of Protocol 1 the Court of Appeal has frequently balanced human rights against other interests without being appealed against.107 But it was overturned in two cases dealing respectively with entitlement to a pension and a welfare benefit: Re Brewster’s Application108 and Re McLaughlin’s Application.109

6.4 Conclusion

This chapter has laid out some of the most memorable and impactful Court of Appeal cases that have been determined over the past quarter of a century. It has shown that while nuanced critiques orbit the Court’s judgments to a healthy degree, whether as a result of being appealed to the top of the judicial hierarchy or on account of non-judicial commentary,110 the work of the Court has also prompted praise from time to time.111 Most of the Court’s judgments in this space are undoubtedly laced with a notable level of deference to other public decision-makers and by a subtle tendency to favour pragmatic solutions. Naturally, opinions will differ on the extent to which greater judicial activism might be ideologically justified.

1

See Conor McCormick, ‘The Amendability of the Agreement’ (Fortnight, Issue 489, April 2023), https://fortnightmagazine.org/articles/the-amendability-of-the-agreement/.

2

[2001] NIQB 49, [2002] NI 64.

3

[2002] NICA 18, [2002] NI 206 (Carswell LCJ dissented).

4

[2002] UKHL 32, [2002] NI 390 (two of the five Law Lords dissented).

5

Gordon Anthony, Judicial Review in Northern Ireland (3rd edn, Hart Publishing 2024) 21; Gordon Anthony, ‘Lord Kerr and the Northern Ireland Constitution: Three Key Cases’ in Brice Dickson and Conor McCormick (eds), The Judicial Mind: A Festschrift for Lord Kerr (Hart Publishing 2021) 90; Marie Lynch, ‘Political Adjudication or Statutory Interpretation: Robinson v Secretary of State for Northern Ireland’ (2002) 53 NILQ 327; Marie Lynch, ‘Robinson v Secretary of State for Northern Ireland: Interpreting Constitutional Legislation’ [2003] Public Law 640.

6

[2006] NICA 5, [2006] NI 278.

7

Anthony, Judicial Review, n 5, 152.

8

[2020] NICA 23, [2021] NI 318.

9

Ibid, [10].

10

Anurag Deb, ‘The Legacy of Buick: Northern Ireland’s Chaotic Constitutional Crucible’ (2019) 23(2) Edinburgh Law Review 259, 259; Gordon Anthony, ‘The Quartet Plus Two: Judicial Review in Northern Ireland’ in TT Arvind and others (eds), Executive Decision-Making and the Courts: Revisiting the Origins of Modern Judicial Review (Hart Publishing 2021) 261–77.

11

[2018] NICA 26 (holding that the relevant department did not have power to grant planning permission for a major waste incinerator in the absence of a minister).

12

For an example arising outside the context of suspended political institutions, see Minister for Infrastructure v Safe Electricity A&T Ltd [2022] NICA 61, [2023] NI 348, which is criticised by Anurag Deb in ‘Constitutional Amendment by Interpretive Sidewind? Minister for Infrastructure v Safe Electricity A&T’ (UK Constitutional Law Association Blog, 7 September 2023), https://ukconstitutionallaw.org/2023/09/07/anurag-deb-constitutional-amendment-by-interpretive-sidewind-minister-for-infrastructure-v-safe-electricity-at/. See too McKee & Hughes v The Charity Commission for Northern Ireland [2020] NICA 13, assessed by Anurag Deb in ‘Devolved Primary Legislation and the Gaze of the Common Law: A View from Northern Ireland’ [2021] Public Law 565.

13

For example, Deb, ‘The Legacy of Buick’, n 10, 264–5.

14

Re JR80’s Application [2019] NICA 58, [2021] NI 115, [109]: ‘We consider that the present arrangements do not provide good governance for Northern Ireland, they are not democratic and have led to government by civil servants with only an attenuated degree of accountability.’

15

Christopher McCorkindale and Aileen McHarg, ‘Litigating Brexit’ in Oran Doyle, Aileen McHarg, and Jo Murkens (eds), The Brexit Challenge for Ireland and the United Kingdom: Constitutions Under Pressure (Cambridge University Press 2021) 260.

16

See R (Miller) v Secretary of State for Exiting the EU; In re McCord; In re Agnew [2017] UKSC 5, [2018] AC 61.

17

See Re McCord’s Application & Ors [2019] NICA 49; Re JR83 (No 2) [2021] NICA 49.

18

For example, Christopher McCrudden and Daniel Halberstam, ‘Miller and Northern Ireland: A Critical Constitutional Response’ in Daniel Clarry (ed), The UK Supreme Court Yearbook – Volume 8: Legal Year 2016–2017 (Appellate Press 2018); Gordon Anthony, ‘Sovereignty, Consent, and Constitutions: The Northern Ireland References’ in Mark Elliott, Jack Williams, and Alison L Young (eds), The UK Constitution After Miller: Brexit and Beyond (Hart Publishing 2018); Anurag Deb, ‘Parliamentary Sovereignty and the Protocol Pincer’ (2023) 43 Legal Studies 47.

19

n 16.

20

For a more detailed explanation of this saga, see Brice Dickson and Conor McCormick, ‘Northern Ireland Dimensions to the First Decade of the United Kingdom Supreme Court’ (2020) 83 MLR 1133, 1162.

21

n 17.

22

R (Miller) v The Prime Minister; Cherry & Ors v Advocate General for Scotland [2019] UKSC 41, [2020] AC 373.

23

[2022] NICA 15, [2023] NI 107. For a critical analysis, see Anurag Deb, Gary Simpson, and Gabriel Tan, ‘The Union in Court, Part 2: Allister and others v Northern Ireland Secretary [2022] NICA 15’ (2022) 73 NILQ 782.

24

Ibid; [2023] UKSC 5, [2023] 2 WLR 457.

25

Re SPUC Pro-Life Ltd’s Application [2023] NICA 35.

26

Ibid, [54].

27

[2024] NIKB 11. Colton J also declared several provisions of the 2023 Act to be incompatible with the ECHR, but in July 2024 the new Labour government announced that it was withdrawing its appeal against that part of the judgment.

28

[2018] NICA 8.

29

[2020] UKSC 19, [2020] 1 WLR 2077.

30

For example, Richard Ekins and Stephen Laws, Mishandling the Law: Gerry Adams and the Supreme Court (Policy Exchange, 30 May 2020), https://policyexchange.org.uk/publication/mishandling-the-law/. See too Claire Archbold, ‘Beyond Carltona: R v Adams, Accountability and the Delegation of Powers’ in Dickson and McCormick (eds), The Judicial Mind, n 5, 243–60.

31

Ibid, Ekins and Laws, 15.

32

The Court of Appeal allowed appeals by two individuals who assisted Mr Adams with his attempted escapes from detention in 1975: R v Bell [2021] NICA 52 and [2021] NICA 56; R v O’Rawe [2021] NICA 57.

33

n 27, [649]-[709]; see also Re Adams’s Application [2024] NICA 15 and Re Bannon’s Application [2024] NIKB 25. The government has since withdrawn its appeal against this part of Colton J’s judgment as well.

34

[2000] NICA 28 (not strictly conflict-related).

35

See, for example, Freya McClements, ‘Patricia Curran: The murder that is still unsolved 70 years later’ (The Irish Times, 12 November 2022), www.irishtimes.com/culture/books/2022/11/12/murdered-teenager-patricia-curran-the-classic-noir-heroine-the-judges-daughter/.

36

[2011] NICA 1.

37

Ibid, [10].

38

Ibid, [13].

39

Mr Stone was later involved in other appeals challenging sentences relating to separate offences he committed against mourners at Milltown Cemetery in 1988: Re McGuinness’s Application (No 1) [2020] NICA 54 and (No 3) [2020] NICA 53.

40

‘Court rejects Michael Stone’s appeal over Stormont murder bids’ (The Belfast Telegraph, 7 January 2011), www.belfasttelegraph.co.uk/news/northern-ireland/court-rejects-michael-stones-appeal-over-stormont-murder-bids/28580271.html.

41

Conall Mallory, Sean Molloy, and CRG Murray, ‘Tort, Truth Recovery and the Northern Ireland Conflict’ [2020] 3 EHRLR 243.

42

[2011] NICA 33. See also [2011] NICA 69 and [2013] NICA 75.

43

Mallory, Molloy, and Murray, n 41, 254.

44

[2017] NICA 13. See also [2018] NICA 3.

45

Mallory, Molloy, and Murray, n 41, 257.

46

[2009] NICA 26.

47

[2000] NICA 7, [2000] NI 281.

48

John Morison and Marie Lynch, ‘Litigating the Agreement: Towards a New Judicial Constitutionalism for the UK from Northern Ireland?’ in John Morison, Kieran McEvoy, and Gordon Anthony (eds), Judges, Transition and Human Rights (Oxford University Press 2007) 130–1.

49

For example, the numerous cases taken by David Tweed of Dunloy Loyal Orange Lodge 496: [2000] NICA 24; [2005] NICA 42; [2009] NICA 13. See too Re Farrell’s Application [1999] NICA 7, [1999] NIJB 143; Re McConnell’s Application [1999] NICA 9; Re Pelan’s Application [2001] NICA 35; Re Duffy’s Application [2006] NICA 28; Re DB’s Application [2014] NICA 56, [2016] NIJB 118, overturned by the Supreme Court in DB v Chief Constable of the Police Service of Northern Ireland [2017] UKSC 7, [2017] NI 301; PPS v Bryson [2016] NICA 11.

50

For example, Re McMahon’s Application [2019] NICA 29; Re McShane’s Application [2019] NICA 69, [2021] NI 161.

51

For example, Re Bryson’s Application [2022] NICA 38.

52

For example, Re Ní Chuinneagain’s Application [2022] NICA 56.

53

For a concise analysis of how human rights were given effect by the courts of Northern Ireland before and after 1998, see Ronagh McQuigg, ‘A “Very Limited” Effect or a “Seismic” Impact? A Study of the Impact of the Human Rights Act 1998 on the Courts of Northern Ireland’ [2010] Public Law 551. For a broader analysis of the ECHR in this context, see Brice Dickson, The European Convention on Human Rights and the Conflict in Northern Ireland (Oxford University Press 2010).

54

[2003] NICA 1, [2003] NI 117.

55

[2004] UKHL 12, [2004] 1 WLR 807, relying on s 22(4) of the Act.

56

[2010] NICA 13.

57

(2009) 49 EHRR 37.

58

[2004] UKHL 12, [2004] 1 WLR 807.

59

(2008) 46 EHRR 42. For judges in the ECtHR ‘the crucial date’ is 14 January 1966, when the UK first allowed individuals to lodge applications in Strasbourg; for judges in the UK it is 2 October 2000, when the Human Rights Act 1998 came fully into force in domestic law.

60

[2017] NICA 7.

61

[2019] NICA 13, [2020] NI 583.

62

[2019] NICA 38.

63

[2020] NICA 26, [2021] NI 405.

64

[2019] NICA 46, [2021] NI 15.

65

The exception was Barnard’s Application.

66

Re Geraldine Finucane’s Application [2019] UKSC 7, [2019] 3 All ER 191; Re Francis McGuigan’s Application [2021] UKSC 55, [2022] AC 1063.

67

Re Margaret McQuillan’s Application [2021] UKSC 55, [2022] AC 1063; Re Rosaleen Dalton’s Application [2023] UKSC 36, [2023] 3 WLR 671. For highly critical commentary on the Supreme Court’s McQuillan judgment, see Anurag Deb and Colin Murray, ‘Sealing the Past: McQuillan and the Future of Legacy Litigation’ [2022] EHRLR 395.

68

Re Jordan’s Applications [2002] NICA 27; [2003] NICA 30, [2004] NIJB 42; [2003] NICA 54, [2004] NI 198; [2004] NICA 29/30, [2005] NI 144; [2009] NICA 64; [2014] NICA 36, [2016] NI 107; [2014] NICA 76, [2016] NI 116; [2015] NICA 66; [2018] NICA 23, [2020] NIJB 296; [2018] NICA 34.

69

Jordan v Lord Chancellor [2007] UKHL 14, [2007] AC 226, on appeal from [2004] NICA 29/30.

70

Re Jordan’s Application [2019] UKSC 9, [2020] NI 570, on appeal from [2015] NICA 66.

71

[2004] NICA 34, [2004] NIJB 53.

72

[2007] NICA 8.

73

[2007] UKHL 36, [2007] 1 WLR 2135.

74

[2009] NICA 6.

75

Robinson v Sunday Newspapers Ltd [2011] NICA 13. See too King v Sunday Newspapers Ltd [2011] NICA 8, [2012] NI 1, where on Art 2 and 3 grounds the claimant succeeded in preventing a newspaper from identifying his partner.

76

[2023] NICA 66.

77

Re E’s Application [2006] NICA 37, [2007] NIJB 189.

78

E v Chief Constable of the RUC [2008] UKHL 66, [2009] 1 AC 536; PF and EF v UK App 28326/09, 23 November 2010, [2011] EHRLR 213. In a later case the Supreme Court overruled a Court of Appeal decision that the police were correct not to try to stop ‘flag’ protests, because of potential repercussions elsewhere: the Art 11 right to freedom of assembly and association was subordinated to the Art 8 right to a private and family life: DB, n 49.

79

[2009] NICA 10, [2009] NI 235 (though its main ruling was that the Commissioner for Children and Young People had no legal standing to bring the case).

80

Re Magee’s Application [2007] NICA 34; Magee v UK (2001) 31 EHRR 35.

81

Re Ryan’s Application [2021] NICA 42. The Supreme Court refused leave to appeal.

82

[2004] NICA 41, [2005] NI 301, [42] per Girvan LJ.

83

[2014] NICA 47, [2016] NI 1, citing Anderson v UK, App 19859/04, 9 February 2010.

84

[2004] NICA 14, [2005] NI 1 (on Art 5); [2004] NICA 13, [2005] NI 21 (on Art 6).

85

R v Mullan [2007] NICA 47, [2008] NI 258.

86

[2021] NICA 67. Art 20A was inserted into the Criminal Justice (NI) Order 2008 by s 30 of the Counter Terrorism and Sentencing Act 2021.

87

[2023] UKSC 14, [2024] AC 130.

88

n 86, [95].

89

n 87, [117].

90

Re Griffin’s Application [2005] NICA 15, [2006] NIJB 56.

91

[2012] NICA 11, [2013] NI 102.

92

Re Stewart’s Application [2003] NICA 4, [2003] NI 149 (no breach of Art 8 or of Art 1 of Protocol 1 (protection of property)).

93

Re Donnelly’s Application [2003] NICA 55, [2004] NI 189 (breach of Art 8).

94

Re McLaughlin’s Application [2016] NICA 53 (no breach of Art 8, taken together with Art 14 (prohibition of discrimination)), but the Supreme Court reversed the Court of Appeal: [2018] UKSC 48, [2018] 1 WLR 4250.

95

Re Close’s Application [2020] NICA 20, [2021] NI 276. See too Re X’s Petition [2020] NICA 21, on the recognition of same-sex marriages conducted in England and Wales. For a complimentary appraisal of the Court of Appeal’s approach to these cases, see Conor McCormick and Thomas Stewart, ‘The Legalisation of Same-Sex Marriage in Northern Ireland’ (2020) 71 NILQ 557, 566–9.

96

Ibid, [54] per Morgan LCJ.

97

Re P (A Child) [2007] NICA 20, [2007] NI 251, on appeal as In re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] 1 AC 173.

98

[2013] NICA 37.

99

Lee v McArthur [2016] NICA 39.

100

Lee v Ashers Baking Company Ltd [2018] UKSC 49, [2020] AC 413; for a full critique, see Brice Dickson, ‘The “Gay Cake” Case and the Scope of Discrimination Law’ in Daniel Clarry (ed), The UK Supreme Court Yearbook – Volume 10: Legal Year 2018–2019 (Appellate Press 2021).

101

[2004] NICA 37–39, [2005] NI 188.

102

[2017] NICA 42. Morgan LCJ thought that current law permitted abortion in such cases. On appeal the Supreme Court ruled that the NIHRC had no legal standing to bring the case but let it be known (by a majority) that Art 8 is breached if no abortion is available in situations of rape, incest, or fatal foetal abnormality: Re NIHRC’s Application [2008] UKSC 27, [2019] 1 All ER 173.

103

n 25.

104

Department for Communities v Cox [2021] NICA 46, [2022] NI 235, [75].

105

[2005] NICA 35, [2006] NI 181.

106

[2007] UKHL, [2007] 1 WLR 1420.

107

For example, Re Meehan’s Application [2018] NICA 42, [2020] NI 440; O’Donnell v Department for Communities [2020] NICA 36, [2021] NI 490; Re Renewable Heat Association’s Application [2023] NICA 13, [2023] NI 363.

108

[2013] NICA 54; [2017] UKSC 8, [2017] 1 WLR 519.

109

[2016] NICA 53; [2018] UKSC 48, [2018] 1 WLR 4250.

110

See, for example, n 70 and n 13 respectively.

111

See, for example, n 30 and n 95.