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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sinn Fein & Anor v Secretary of State for Northern Ireland [2007] EWHC 12 (Admin) (19 January 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/12.html Cite as: [2007] EWHC 12 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		Friday 19th January, 2007

Lord Justice Richards :

The IMC

"Article 3

The objective of the Commission is to carry out the functions as described in Articles 4, 5, 6 and 7 of this Agreement with a view to promoting the transition to a peaceful society and stable and inclusive devolved Government in Northern Ireland.

Article 4

In relation to the remaining threat from paramilitary groups, the Commission shall:

(a) monitor any continuing activity by paramilitary groups including:

(i) attacks on the security forces, murders, sectarian attacks, involvement in riots, and other criminal offences;

(ii) training, targeting, intelligence gathering, acquisition or development of arms or weapons and other preparations for terrorist campaigns;

(iii) punishment beatings and attacks and exiling;

(b) assess:

(i) whether the leaderships of such organisations are directing such incidents or seeking to prevent them; and

(ii) trends in security incidents.

(c) report its findings in respect of paragraphs (a) and (b) of this Article to the two Governments at six-monthly intervals; and, at the joint request of the two Governments, or if the Commission sees fit to do so, produce further reports on paramilitary activity on an ad hoc basis.

Article 5

…

Article 6

(1) The Commission may consider a claim by any party represented in the Northern Ireland Assembly:

(a) that a Minister, or another party in the Assembly, is not committed to non-violence and exclusively peaceful and democratic means; or

(b) that a Minister has failed to observe any other terms of the pledge of office; or that a party is not committed to such of its members as are or might become Ministers observing the other terms of the pledge of office.

…

Article 7

When reporting under Articles 4 or 6 of this Agreement, the Commission … shall recommend any remedial action considered necessary. The Commission may also recommend what measures, if any, it considers might appropriately be taken by the Northern Ireland Assembly, such measures being limited to those which the Northern Ireland Assembly has power to take under relevant United Kingdom legislation."

Powers to act on the IMC's reports

"51B.(1) This section applies if –

(a) the Monitoring Commission has, or members of the Commission have under the agreement establishing it, made a report containing a recommendation about steps which are steps the Assembly might consider taking were section 1 of the Northern Ireland Act 2000 not in force; and

(b) the taking of those steps by the Assembly would require the passing by it of a resolution under section 51A(1), (2) or (3) in relation to a political party.

(2) Where this section applies in circumstances in which the taking of the steps concerned by the Assembly would have required the passing by it of a resolution under section 51A(1), the Secretary of State may be direction provide that the whole or a specified part of any financial assistance payable for a specified period under the Financial Assistance for Political Parties Act (Northern Ireland) 2000 to the political party concerned shall not be payable (subject to subsection (5)).

…

(5) The Secretary of State may exercise the power under subsection (2), (3) or (4) only if he is satisfied that the political party concerned –

(a) is not committed to non-violence and exclusively peaceful and democratic means; or

(b) is not committed to such of its members as are or might become Ministers or junior Ministers observing the other terms of the pledge of office."

The IMC's membership

"6. The membership should, by virtue of its inherent quality and expertise, make an invaluable personal contribution to promoting confidence in the Commission.

7. Clearly, the appointees must be of high regard in their own jurisdictions. It would be helpful, but not essential, if they were internationally acknowledged in their own fields of expertise.

8. Given the full scope of the IMC's responsibilities, the appointees will also need developed political awareness and sensitivity, and will need to demonstrate their independence. Previous independent posts would be useful but are not essential. An appreciation of the affairs of Northern Ireland would assist. IMC members must be able to work with the relevant police and army authorities in order to monitor paramilitary activity and the implementation of the normalisation commitments effectively and to report with credibility. Experience of working within or alongside a policing or security environment would be highly beneficial.

9. The above is the ideal position. It might be necessary to achieve this mix of skills through selection of individuals who collectively, rather than individually, meet these criteria: but individuals who display most or all of these attributes would undoubtedly help to command confidence in the IMC. The aim would be to get a balance of skills and experience. However, given the focus of the work, it is likely that some of the members would have expertise in police or military matters. At least one member might be someone with experience working with or in the public sector at either a political or administrative level, or have a judicial or legal background."

The IMC's methodology

"5. This Article will guide us in all that we do. It places a heavy responsibility on us to act in a way which has regard for the underlying purposes of the Belfast Agreement of 1998 and the Joint Declaration of May 2003. We know that we are only one among a large number who are working to the same end."

"8. We want to make clear the significance of these provisions. Our successive reports will not be one-off self-contained documents but will constitute a continuing process. We intend to examine developments from one report to another, bearing in mind that under the Agreement we are obliged to monitor any activity of paramilitary groups and assess trends in security incidents …."

"18. In reporting on the activities of paramilitary groups we are thus seeking the best information and intelligence possible from the maximum number of sources. We will make our assessments on the basis of that material using our best judgment. We are not bound by the strict rules of evidence applicable in a court of law. We will of course continue to take full account of the rights of others and will [treat] people with fairness and impartiality."

"1.9 We have been asked a number of times how we make our assessments and on what information we base them. Some have asked us to put more material in the public domain. Some have challenged us on grounds that we may be or appear to be biased, and we continue carefully to consider that issue. We hope it would be helpful if we say something about the way we work.

1.10 We believe it is a great strength that the four Commissioners come from different backgrounds and have different perspectives. We seek to maximise the benefit this gives us by challenging each others' thinking as well as challenging those we meet. We try to develop assessments based on more than one source. We see if there are links between what we learn from different people and we expect to be able to triangulate different perspectives before we reach conclusions. We probe the nature and logic of the information we receive. We examine whether there are any inconsistencies. We challenge any gaps there appear to be. We question whether there might be any bias either in our own approach or in that of others and take steps to ensure it does not influence our conclusions inappropriately. We ask ourselves and our interlocutors whether other conclusions might as reasonably be drawn from the same set of circumstances. We test the confidence placed in the material and in opinions associated with it. We do all this before we come to any view, and before we write our reports. The conclusions we draw are our own.

1.11 Our sources are wide ranging. They include the law enforcement and other agencies of the UK and Ireland, as well as of any other country from which we have things to learn. But they are much wider than that. In addition to government officials and police officers we have met people from the following categories in Great Britain, Ireland North and South and in the United States: Political parties; government officials; police; community groups; churches; charities; pressure groups and other organisations; former combatants, including ex-prisoners; representatives of businesses; lawyers; journalists; academics; victims; private citizens, individually and as families. We urge everybody with something material to our work to get in touch with us. We also try to take account of the work of other boards, commissions and similar bodies in Northern Ireland and elsewhere.

1.12 We are very careful what we say in our reports. From the beginning we have adhered to one firm principle. We treat everything we hear, including the identities of those who communicate with us, in complete confidence. Only in this way can they be expected to impart information to us, and without that information we cannot do the job the two Governments have charged us with. We will therefore not reveal our sources, though those people are free to say what they like about their communications with the IMC. The International Agreement lays down other constraints on us, for example so that we do not prejudice legal proceedings or jeopardise anybody's safety. But the most significant restraint is self-imposed: we will not say anything, or draw any conclusion, unless we have confidence in it, and we will qualify conclusions if we think that is necessary. We did this, for example, in our initial attribution of certain robberies in late October 2004.

1.13 We are not infallible, but we do believe we are thorough in our methods and measured in our assessments. If we find one of our conclusions does not stand up in the light of later information we will acknowledge this in a subsequent report."

The IMC's reports

"5.6 We have received information from a number of official and unofficial sources. We have carefully reviewed all of this material. We are conscious that we are not bound by the strict rules of evidence and that the material has not been subject to testing one could expect in a criminal trial. We do however believe this material, taken as a whole, indicates that the operation was one planned and undertaken by the Provisional IRA."

"7.3 … Two parties that would be represented in a restored Assembly have links to paramilitary groups – Sinn Féin and the Progressive Unionist Party.

7.4 It is difficult to be precise about what the relationship between Sinn Féin and the PIRA really is or about the PIRA's own decision-making processes. Nevertheless, on the basis of the information we have received we believe that the situation can reasonably be summarised as follows:

- Some members, including some senior members, of Sinn Féin are also members, including, in some cases, senior members of PIRA.

- Sinn Féin, particularly through their senior members, is in a position to exercise considerable influence on PIRA's major policy decisions, even if it is not in a position actually to determine what policies or operational strategies PIRA will adopt. We believe that decisions of the republican movement as a whole about these matters lie more with the leadership of PIRA than with Sinn Féin.

- Within PIRA some decisions follow a process of consultation with the membership initiated by the leadership.

7.5 We recognise that there might not have been a PIRA ceasefire in the first place without influence from the leadership of Sinn Féin. By the same token Sinn Féin must bear its responsibility for the continuation by PIRA of illegal paramilitary activity and must recognise the implications of being in this position."

"8.5 In the case of measures to be taken by the Assembly, they cannot apply until such time as the Assembly is restored. We nevertheless want to make clear that had the Assembly now been functioning, we would have recommended in respect of Sinn Féin and the Progressive Unionist Party measures up to and possibly including exclusion from office. In this way we can best indicate to those who are elected to the Assembly and who may aspire to serving in a devolved administration what they might expect from us at such time as restoration may come. Any recommendations we might make following restoration of the Assembly would be proportionate to the then prevailing circumstances. We realise that the recommendation of Assembly measures cannot affect those associated with paramilitary groups who have not been elected as MLAs, and that some might see this as unbalanced. We do not accept that view. People elected to the Assembly are in a special position and they have responsibility to preserve the highest possible democratic standards. Moreover, most of our recommendations apply to all paramilitary groups.

8.6 Whilst the Northern Ireland Assembly remains un-restored and it is not therefore possible for us to recommend measures it might take, we recommend that the Secretary of State should consider taking action in respect of the salary of Assembly members and/or the funding of Assembly parties so as to impose an appropriate financial measure in respect of Sinn Féin and the Progressive Unionist Party."

"7.2 In our first report we found that there were associations between the leadership of paramilitary groups and two of the parties elected to the Northern Ireland Assembly, namely Sinn Féin in respect of the PIRA and the Progressive Unionist Party in respect of the UVF and the RHC. The circumstances and associations were not the same in each case but we concluded that neither party had sufficiently discharged its responsibility to exert all possible influence to prevent illegal activity by the paramilitary groups with which they were associated. We noted that had the Assembly been functioning at that time we would have recommended measures against both these parties up to and possibly including exclusion from office, and that any recommendations we might make following restoration of the Assembly would be proportionate to the then prevailing circumstances. Because the Assembly was not restored at the time of our report we recommended that the Secretary of State should consider taking action in respect of the salary of Assembly members of these two parties and/or the funding of the parties. He decided to do the latter for a period of 12 months.

7.3 In the light of the outcome of the talks involving the Northern Ireland political parties and the British and Irish Governments we will be considering whether the leadership of Sinn Féin and the PUP is exerting all possible influence to prevent illegal activity by the paramilitary groups with which they are associated."

"3. We believe that the robbery demands a special report for a number of reasons. It was exceptionally serious. About £26.5m was stolen. It was a high risk crime which required careful and lengthy advance planning. It involved the violent abduction of two employees of the Northern Bank and the unlawful imprisonment of their families, who continue to suffer as a result. In addition there are many other secondary victims, not least other bank employees who face the fear that similar things might happen to them and their families. There have been a number of other similar crimes in recent months. The question of responsibility for the robbery has had a significant impact on affairs in Northern Ireland and very different views have been publicly expressed about it. The possible involvement of a paramilitary group falls squarely within our remit.

4. We have noted what has been said about responsibility for the robbery, both by the Chief Constable of the PSNI and by others. It is however incumbent on us to undertake our own independent analysis and assessment on the basis of all the information we are able to acquire, and this we have done. We have obtained information from a variety of official and other sources in Northern Ireland and the South. As we indicated in our last report, we meet a large number of people. In view of the public comments of senior representatives of Sinn Féin about responsibility for the robbery, and in particular the public statement that they had received a denial of responsibility direct from members of the PIRA, we invited them to meet us and give us the benefit of their understanding. Sinn Féin have said that while they had no knowledge of who was responsible for the robbery, they did not believe it was the IRA; that Mr Martin McGuinness had asked the IRA if they were involved and had been assured they were not; and that they believed this denial, which has since been made public. In these circumstances, and in the light of their views about the IMC, they said they did not believe a meeting with us at this time would serve a useful purpose. We have taken these statements into account, though we regret that they have felt unable to accept our invitation."

"14. We draw the same conclusion about the responsibility of Sinn Féin in relation to the recent series of abductions and robberies. In our view Sinn Féin must bear its share of responsibility for all the incidents. Some of its senior members, who are also senior members of PIRA, were involved in sanctioning the series of robberies. Sinn Féin cannot be regarded as committed to non-violence and exclusively peaceful and democratic means so long as its links to PIRA remain as they are and PIRA continues to be engaged in violence or other crime. Although we note Sinn Féin has said it is opposed to criminality of any kind it appears at times to have its own definition of what constitutes a crime. We do not believe the party has sufficiently discharged its responsibility to exert all possible influence to prevent illegal activities on the part of PIRA."

"20. If the Northern Ireland Assembly was now sitting we would be recommending the implementation of the full range of measures listed in paragraph 12, including exclusion from office. We say this recognising that this would have implications for the running of the Executive and the Assembly.

21. We are very aware that the imposition of financial penalties is bound to seem paltry against the background of a robbery of £26.5m. It has also been put to us that if financial penalties are imposed Sinn Féin will try to benefit from that by portraying themselves as victims. Be that as it may, in the light of the provisions of the legislation we have decided to recommend that the Secretary of State should consider exercising the powers he has in the absence of the Assembly to implement the measures which are presently applicable, namely the financial ones. It has also been suggested that Sinn Féin should not continue to receive public money from other sources if they are denied it in the context of the Northern Ireland Assembly. However, this is outside the measures available to us to recommend."

"3.18 In conclusion, on PIRA, we emphasise again that as the PIRA statement of 28 July came at a point when 5/6ths of the period under review had already elapsed it is too early to be drawing firm conclusions about possible overall changes in behaviour, although we do note some indications of changes in PIRA structures. Clearly we are looking for cumulative indications of changes in behaviour over a more sustained period of time, building on the PIRA statement of 28 July and the decommissioning of weapons reported by the IICD on 26 September."

"6.4 We have said earlier in this report that five of the six months under review precede the PIRA statement and that it is therefore too early for us on this occasion to be drawing firm conclusions about possible changes in the organisation's overall behaviour. Although the initial signs are encouraging we do not therefore make any comment at this stage on the recommendation we previously made about the financial support Sinn Féin receives in the Northern Ireland Assembly. Nor do we pursue the point we then made separately about whether it should receive public money from other sources.

6.5 We hope that when we next report in January 2006 it will be possible to draw firmer conclusions. What those conclusions might be will depend on the nature of the evidence. We will continue to apply the criteria we have adopted and to approach our work in the same way as hitherto. Some may expect more of us than it is possible to deliver, perhaps on the one hand seeking certainty where it does not exist or on the other hand asking us to prove a negative when it is not possible to do so. Our assessment will be as rigorous and as accurate as we can make it."

"3.16 There are a number of signs that the organisation is moving in the way it had indicated in the July statement. Although some other signs are at best neutral and a few are more disturbing, most are in a positive direction. We are of the firm view that the present PIRA leadership has taken the strategic decision to end the armed campaign and pursue the political course which it has publicly articulated. We do not think that PIRA believes that terrorism has a part in this political strategy. It has issued instructions to its members about this change of mode, and has engaged in internal consultation to support the strategy."

"3.25 To sum up, the position is not entirely straightforward. We see a number of definite signs of the organisation moving in the direction indicated in the 28 July statement. We see other signs which we would describe as neutral and some which are more disturbing. For example, some members continue to be engaged in significant crime and occasional unauthorised assaults. Whereas these assaults are not in our view sanctioned by the leadership, and may be directly against its wishes, the contrary appears to be the case with some other criminal activities such as the exploitation of financial assets PIRA had previously acquired or the illegal gathering of intelligence. The indications that PIRA appears to retain long term intentions to gather intelligence is also in our view a matter for concern. On the other hand we believe there is a clear strategic intent to turn the organisation on to a political path and there is good evidence that this is happening even given such constraints as there may be on the leadership in this regard."

"2.15 We are not aware of current terrorist, paramilitary or violent activity sanctioned by the leadership. We have had no indications in the last three months of training, engineering activity, recent recruitment or targeting for the purposes of attack. There has now been a substantial erosion in PIRA's capacity to return to a military campaign without a significant period of build-up, which in any event we do not believe they have any intentions of doing. The instructions we have previously mentioned to refrain from violence or rioting still stand …. The leadership has actively redeployed members and has encouraged them to undertake other things such as working for Sinn Féin or community activities. There have been no paramilitary shootings or attacks attributable to PIRA in this period ….

2.16 We have found signs that PIRA continues to seek to stop criminal activity by its members and to prevent them from engaging in it. We believe that some senior PIRA members may be playing a key role in this. This seems to us to be in accordance with the publicly articulated strategy ….

2.17 We referred in our Eighth Report to our having received Reports that not all PIRA's weapons and ammunition had been handed over for decommissioning in September 2005 …. The relevant points are that … these Reports do not cast doubt on the declared intention of the PIRA leadership to eschew terrorism and to follow the political path. We will continue to monitor the position.

2.18 As we mention above, we said in our Eighth Report that PIRA had engaged in intelligence gathering. Since that Report the situation appears to have moved more into line with the aims of the July statement …. We are currently not aware of intelligence-related activity which is outside the aims of the July statement."

"4.4 We have reported at some length before on the successive moves made by Sinn Féin and PIRA over the last two and a half years. The statement made by the Sinn Féin President Mr Gerry Adams in April 2005 was a particular watershed in this regard; we said in our subsequent report that if he were able to deliver what he seemed to have suggested he would have demonstrated leadership of a high order. This statement was followed by the PIRA statement on 28 July that year and the decommissioning reported by the IICD on 26 September. We said in our last report six months ago that we had seen further evidence of positive leadership on the part of Sinn Féin and that the statement by Mr Adams continued to be built upon.

4.5 We describe at some length in Section 2 above the position taken by the PIRA leadership. We say that we are firmly of the view that PIRA is set on the political path and that we believe the leadership is implementing the strategy. It is now a year and a half since Mr Gerry Adams's April 2005 statement and in the intervening period the Sinn Féin leadership has delivered on the intent set out in it. It has shown clear leadership on ending criminality. It has taken a strong line, including expulsions, with party members who threaten or use violence. It accordingly remains our view that the path indicated by Mr Adams in April 2005 continues to be built upon."

The Secretary of State's decisions

The judicial review proceedings in Northern Ireland

The present proceedings

"The Secretary of State has considered the five demands made at the end of your letter of 28 November 2005 and refuses them all:

1. The Secretary of State rejects completely the allegations of bias and, accordingly, will not remove the current commissioners of the IMC appointed by the government of the UK.

2. The Secretary of State rejects completely any evidence of bias and therefore sees no reason to treat the seven IMC Reports as void.

3. He will continue to place reliance on the seven IMC Reports thus far laid for the reasons previously given.

4. He intends to rely on any subsequent Reports presented by the IMC for the reasons previously given.

5. He will not reinstate Sinn Féin's revoked Assembly funding, for the reasons elaborated in detail under 'Issue One' of this letter …."

Forum

Justiciability / alternative remedy

Delay

Abuse of process

The substantive grounds: introduction

Ground 1: appearance of bias

Sinn Féin's case

(a) Lord Alderdice was leader of the Alliance Party from 1987 to 1998 and is now a Liberal Democrat peer in the House of Lords. His brother, David Alderdice, is a senior member of the Alliance Party; and a close political colleague, David Ford, is the current leader of the Alliance Party. The Alliance Party is a political opponent of Sinn Féin, both historically and currently. During his time as leader, Lord Alderdice was a staunch opponent of Sinn Féin and made hostile statements about it, for example that Sinn Féin was prepared to use violence to further its political agenda and was not genuine in claiming to oppose violence. The Alliance Party continues to criticise Sinn Féin in very strong language. The opposition is not merely of ideological significance but also has political ramifications, since the two parties compete directly for votes and political power. The Alliance Party and its senior members stand to gain politically from anything which adversely affects Sinn Féin's reputation as well as its practical ability to compete in elections or publicise its activities.

(b) Lord Alderdice himself remained a member of the Alliance Party until after the present proceedings had commenced. His continuing membership of the party emerged only following a direct question put to him by a newspaper reporter in February 2006, and had not been communicated to Sinn Féin despite requests for full disclosure of any possible matters that might indicate apparent bias. When it did emerge, the IMC wrote to Sinn Féin on 24 February 2006 stating:

"Lord Alderdice had decided that to put the matter beyond peradventure, he has resigned forthwith his formal and inactive membership of the Alliance Party. This is on the basis that there may be a perceived risk of bias should a claim be made to the IMC under Article 6 of the International Agreement, either against the Party or by it. It is for this limited reason that he has decided to resign from the Alliance Party."

Mr Singh submits that there is no hard and fast distinction between the matters that have to be considered under Article 6 of the International Agreement and those that have to be considered under Article 4, and that the risk of apparent bias arising out of Lord Alderdice's membership of the Alliance Party is no less real in the context of Article 4 than it was implicitly conceded to be in the context of Article 6. Further, Lord Alderdice's resignation does not remove the concerns arising out of his previous membership of the party and the light it casts on his conscious or subconscious predisposition in favour of the party – concerns that are heightened by his previous failure to disclose that membership.

(c) Another matter discovered since the issue of proceedings is that Lord Alderdice is currently the President of Liberal International, an international political organisation of which the Alliance Party is a member and the Alliance Party's current leader, David Ford, is joint Vice-President. Moreover Lord Alderdice was proposed and supported for the position of President by Mr Ford on behalf of the Alliance Party. It is said that as President of Liberal International he has an ongoing relationship with the Alliance Party. Furthermore, also in membership of Liberal International are the Progressive Democrats, a party in the south of Ireland which is also a political opponent of Sinn Féin and the current leader of which has repeatedly made speeches highly critical of Sinn Féin.

(d) Lord Alderdice is also a senior member, and was previously Vice President, of another political organisation, The European Liberal Democrat and Reform Party, which describes itself as a political party and of which the Alliance Party and the Liberal Democrats are members.

"There is also a need to reflect on whether, to the extent that IMC may be said have a quasi-judicial function, it has anything approaching the level of independence required (of a court or tribunal) by Article 6 ECHR. This is particularly at issue given that Lord Alderdice, who was deeply involved in negotiating the GFA, will be one of the individuals sitting in judgment of the conduct of parties that signed or declined to sign it. With no reflection whatsoever on his personal integrity, there may be circumstances in which [it] may be inappropriate for that member of the IMC, or any future member with a party political background or otherwise potentially compromised independence, to join in making certain decisions …."

(a) He was an officer of the Metropolitan Police for 36 years and rose to lead Scotland Yard's Anti-Terrorist Branch and to become the first Director of Intelligence of the Metropolitan Police. He is closely connected, both personally and professionally, to Sir Ronnie Flanagan, former Chief Constable of the Royal Ulster Constabulary, and Hugh Orde, the current Chief Constable of the Police Service of Northern Ireland ("the PSNI"). It is said that there is a risk that, as a consequence of his institutional connections and his personal connections to senior individuals involved in policing in the United Kingdom and Northern Ireland, he would consciously or unconsciously give greater weight to the evidence provided by the police and intelligence services than he would to other evidence. For example, there is a real possibility that he would have accorded too much weight to the views of the PSNI and its Chief Constable, and correspondingly less weight to the views of others, when considering responsibility for the Northern Bank robbery.

(b) It is said that Mr Grieve has made remarks on a number of occasions which suggest that he harbours animosity towards Sinn Féin and those he associates with it. Two specifics are cited. The first is a press conference following publication of the IMC's Fourth Report, at which Mr Grieve stated that he "absolutely" did not believe the Provisional IRA's denial of responsibility for the Northern Bank robbery and that "the people who deny it on behalf of the Provisional IRA have got some brass neck". The second is an occasion when Mr Grieve encountered Sinn Féin's solicitors by chance at Heathrow Airport and made remarks that, it is said, suggested strong hostility towards Sinn Féin and its representatives and were highly inappropriate for a member of the IMC.

(c) A further matter relied on as showing continuing connections between Mr Grieve and senior police officers who have given evidence to the IMC is that he is Chairman of the Board of The John Grieve Centre for Policing and Community Safety. Other members of the Board include Sir Ronnie Flanagan and the Head of the Metropolitan Police's Special Branch. Mr Grieve and Chief Constable Orde are members of the Centre's Journal Board. The Centre organises conferences and courses which are attended by numerous senior police officers and for which it receives payment from the police forces concerned. Delegates from the PSNI have paid to attend conferences at the Centre, and officers from the PSNI have lectured there. Such conferences have been chaired by Mr Grieve, who has also presented sessions and delivered introductory remarks. It is submitted that all this heightens the risk that he would give greater weight to the evidence of police officers with whom he has connections and that he would be unable to make a wholly objective assessment of their credibility.

(a) First, following the publication of the IMC's Fourth Report, he was quoted in British and Irish newspapers as saying that it would be a "resigning matter" for him if it transpired that the connection between Sinn Féin and the Northern Bank robbery turned out to be unfounded. This is contrasted with the IMC's published statements to the effect that it regards its reports as a continuing process and that it will alter the conclusions in its reports if they do not stand up in the light of later information, and will acknowledge this in subsequent reports. It is submitted that, in the light of what Mr Brosnan is reported to have said, a fair-minded and informed observer would conclude that there was a real possibility that he would be less willing to alter the position that the IMC had taken in its Fourth Report on the attribution of the robbery: he had effectively staked his credibility and position as a commissioner on the findings in the report.

(b) Reliance is also placed on the fact that Mr Brosnan was previously employed in the Irish Department of Justice, Equality and Law Reform, where he served as Secretary General and was closely associated with the Irish police, and he continues to be employed by the Irish Government on an ad hoc basis, for example to sit on inquiries. Thus, although he left the Irish Civil Service in 1999, it is said that his past connection to these various bodies and his continuing personal and professional connections to people within them create a real risk that he would give greater weight to their evidence than he would to evidence provided by other parties.

General considerations

"9. As the facts of the present case demonstrate, however, people who are called on to adjudicate will often have substantial experience in the relevant field and will therefore be familiar with the background issues which they may have encountered previously in various roles. Indeed, the individuals concerned will often be particularly suited to adjudicate on the matter precisely because of the experience and wisdom on the topic which they have accumulated in those other roles. In many continental systems, at various stages of their careers judges spend time as legal civil servants in ministries, drafting and advising on legislation. Undoubtedly, when they return to the bench, it is expected that they will use their experience to enrich their work. Today, British judges draw on their previous work, whether as advocates, legal civil servants or academic lawyers. Therefore, they may well have to decide a point which they had argued as counsel, or on which they had written an article - or, even, which they had decided in a previous case. In various political or other contexts, judges may have publicly advocated or welcomed the passing of the legislation which they later have to apply. Judges who have served in some capacity in the Law Commissions may have to interpret legislation which they helped to draft or about which they helped to write a report. The knowledge and expertise developed in these ways can only help, not hinder, their judicial work.

10. It would be absurd, then, to suggest that in such situations their previous activities precluded the judges from reaching an independent and impartial judgment, when occasion demanded. The authoritative decision in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 is a resounding rejection of any such approach. In any event, if proof were needed, experience confirms that judges are quite capable of acting impartially in such cases …

11. Nor should it be supposed that only professional judges are capable of the necessary independence of approach. That would be to disregard the realities of life in many organisations today. For example, on a daily basis, head teachers have to apply school rules which they have helped to frame. By virtue of their knowledge of the way the school works and of its problems, they will often be best placed to apply the rules sensitively and appropriately in any given situation. Again, it is not to be assumed that the head teachers' mere involvement in shaping the rules means that a fair-minded observer who knew how schools worked would conclude that there was a real possibility that they would not be able to apply the rules fairly. The same goes for managers in businesses and for officers in the armed forces who are committed to upholding the edifice of lawful orders on which the services rest. Equally, I have no doubt that an informed and fair-minded observer would regard prison governors, or their deputies, as being quite capable of interpreting and applying the prison rules fairly and independently, even though they are obviously committed to upholding them. In all these situations, if things do go wrong, the decision can be judicially reviewed or challenged in an employment tribunal, as the case may be. The present case is an example of that safeguard in action."

"From this summary it can be seen that Mrs Walker was and is eminently well qualified to sit on the Professional Conduct Committee as one of its lay members. She brought to that membership an extensive knowledge of the health service in Wales, as a result of having worked there for many years as a nurse and midwife and her period of service as director of the South East Wales Institute. It is in the public interest that those who serve as lay members on disciplinary bodies of this kind should be well-informed and have experience of working in the area within which cases are likely to arise on which they may be called upon to adjudicate. It could not possibly be suggested that there was anything in Mrs Walker's general background that would be likely to give rise to the danger or possibility of bias on her part when she was considering a case from Wales."

Lord Alderdice

"The chief characteristics of the office of Speaker are authority and impartiality. …

Members must be confident of the impartiality of the Speaker and this is achieved through the operation of a number of conventions. On appointment, the Speaker relinquishes all connections with his Party. He does not participate or vote in any debates in the Assembly, he does not become involved in party politics, nor does he comment on Northern Ireland political matters or on issues of Government policy. When speaking on behalf of the Assembly, the Speaker confines himself to matters relating to the operation of the Assembly. Similarly, he will only make statements to the press on factual or procedural matters relating to the Assembly."

Mr Grieve

Mr Brosnan and Mr Kerr

Conclusion on apparent bias

Ground 2: standard of proof

"Standard of Proof

Our client has carefully considered the material which was provided and the oral submissions made. It has concluded that the concepts of burden and standard of proof do not fit with the type of activity in which they are engaged when carrying out its Article 4 function. Factors that have influenced this approach include the following:

The business of monitoring and reporting is so polyhedral in nature that it flies from analysis in the terms commonly associated with litigation. For example, there are no formal parties in an Article 4 exercise and accordingly no burden on any party to establish a case.

There is a spectrum of states of mind and it is for our client to express itself as to the state of its collective belief without regard to concepts which are designed to assist in the disposal of litigation.

Our client does not make any dispositional decisions and is engaged in a continuous process when carrying out its Article 4 responsibilities, rather than making any once for all conclusions.

The approach endorsed by the IMC is the one set out in its 5^th Report and that any conclusion reached by the IMC is only reached if it can be properly drawn from the material available (see for example para 1.10). The Commissioners further indicate at paragraph 1.12 of the 5^th report that 'we will not say anything, or draw any conclusion, unless we have confidence in it, and we will qualify conclusions if we think that is necessary'. Our client has not been persuaded by the submissions that there is any merit or cause for them to modify their approach."

"In our view, provided the Tribunal makes clear the degree of confidence or certainty with which it reaches any conclusion as to facts and maters that may imply or suggest criminality of serious misconduct of any individual, provided that there is evidence and reasoning that logically supports the conclusion to the degree of confidence or certainty expressed, and provided of course that those concerned have been given a proper opportunity to deal with allegations made against them, we see in the context of this Inquiry no unfairness to anyone nor any good reason to limit our findings in the manner suggested. Thus, to take an example, we cannot accept that we are precluded in our report from analysing and weighing the evidence and giving our reasons for concluding that in the case of a particular shooting, we are confident that it was deliberate, that there was no objective justification for it, and though we are not certain, that it seems to us more likely than not that there was no subjective justification either. Of course we would have in mind the seriousness of the matter on which we were expressing a view, but that is not because of some rule that we should apply, but rather as a matter of common sense and justice."

Ground 3: failure to disclose the case to answer

"It is true, of course, that the inspectors are not a court of law. Their proceedings are not judicial proceedings …. They are not even quasi-judicial; for they decide nothing; they determine nothing. They only investigate and report. They sit in private and are not entitled to admit the public to their meetings ….

But this should not lead us to minimise the significance of their task. They have to make a report which may have wide repercussions. They may, if they think fit, make findings of fact which are very damaging to those whom they name. They may accuse some; they may condemn others; they may ruin reputations or careers ….

Seeing that their work and their report may lead to such consequences, I am clearly of the opinion that the inspectors must act fairly …. The inspectors can obtain information in any way they think best, but before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice."

"I remind you of our position with respect to the International Monitoring Commission.

The IMC was established in contravention of the Good Friday Agreement. It is not independent. It is a political tool to serve the current policy of both the British and Irish governments.

It is a proxy for securocrats and its report has been contrived to facilitate and justify political intervention on the basis of their agenda. We reject its report and we reject any suggestion that it can have a positive role in moving the political process forward.

Sinn Féin has not breached the Agreement. We have fulfilled our responsibilities and obligations under Agreement and will continue to do so.

Sinn Féin will not be held responsible for any words or deeds other than our own."

"We remind you that the IMC is no part of the Good Friday Agreement and, in our view, should have no role in the political process, or in any complaint or sanction procedures against elected representatives.

We are concerned that the British Government is currently paving the way for a continuation or escalation of sanctions against our party. It is our belief that once again they intend to use an IMC report to attempt to validate such sanctions.

The powers of sanction assumed by the British Secretary of State are a fundamental breach of the Good Friday Agreement ….

We will continue therefore to oppose the remit give to the IMC and challenge the powers of sanction assumed by the British Secretary of State.

We do not believe that any useful purpose would be served by meeting with the IMC at this point in time."

"Whereas we reserve our client's rights to full disclosure of all evidence which relates to it and/or the IMC's allegations against it, and/or its members, we look forward to receiving that list [of contributors]. We would ask the IMC to ensure that the list is as comprehensive as possible …."

Conclusion