Director of Public Prosecutions and Damien William McKenna, Sean Gerard Patrick McConville, Gary Toman
| Jurisdiction | Northern Ireland |
| Judge | District Judge (MC) White |
| Neutral Citation | [2008] NIMag 01 |
| Court | Magistrates' Court (Northern Ireland) |
| Date | 03 October 2008 |
Neutral Citation No.: [2008] NIMAG 01 Ref:
Mag01
Judgment: approved by the Court for handing down Delivered:
03/10/08
(subject to editorial corrections)
Director of Public Prosecutions Complainant
Damien William McKenna Defendants
Sean Gerard Patrick McConville
Gary Toman
Ruling
1. The three accused are jointly charged with three explosives offences, namely
conspiracy to cause an explosion on a date unknown between 28 March 2007 and 6
April 2007, and possession of an explosive substance, namely an improvised mortar
bomb, with intent, and in suspicious circumstances, between the same dates.
2. The prosecution has requested the court to conduct a preliminary inquiry under
Articles 31-34 of the Magistrates’ Courts (NI) Order 1981, and has furnished papers
to the court and served them on the accused in accordance with those provisions. In
response, the accused have exercised their right under Article 34(2) of the Order to
require fourteen prosecution witnesses to attend the committal proceedings and give
evidence on oath.
3. The prosecution then lodged a number of applications with the court in regard to
some of those witnesses. This ruling relates to those applications, which were opposed
by the accused, and were heard on 29 September 2008.
4. The applications are as follows:-
(i) an application under section 3 of the Criminal Evidence (Witness Anonymity) Act
2008 for witness anonymity orders. This application requests that witnesses referred
to in the committal papers as Soldiers B,C,D,E,F,G,H and I, be permitted to be
referred to by those letters when giving evidence. It includes requests that, in order to
preserve the anonymity of the witnesses, their names are withheld from the accused
and their legal representatives, they are not asked questions which might lead to their
identification and they are screened, when giving evidence, from everyone except the
Judge, the prosecution and the legally qualified representatives of the accused;
(ii) an application under Article 80A of the Police and Criminal Evidence (NI) Order
1989 for the court to give leave for six witnesses who are soldiers, namely Soldiers
B,C,E,F,H and Stuart Cockburn to be permitted to give oral evidence at the committal
through a live link from Afghanistan, where they are presently serving;
(iii) an application under Articles 18 and 20 of the Criminal Justice (Evidence) (NI)
Order 2004 for the statements of four witnesses who are soldiers, namely Soldiers
F,G,H and I to be admitted as hearsay evidence and read at the committal
proceedings.
5. At the hearing on 29 September, the prosecution called oral evidence from three
witnesses, namely Detective Superintendent David McConville, Mr.Chris Keay, an
Assistant Director in the Ministry of Defence, and Mr.William Byatt, another senior
civil servant in the Ministry of Defence, in support of their applications. The
prosecution also placed before the court two Public Interest Immunity Certificates
from The Right Honourable Bob Ainsworth M.P., dated 16 July 2008 and 26
September 2008. I should make it clear that, while the second of those certificates
refers to a schedule with a protective marking of “SECRET UK EYES ONLY” which
was only being provided to the resident magistrate, no such schedule was, in the
event, supplied.
6. As a background to the applications, I will briefly summarise the evidence on
which the prosecution seek to rely to prove the charges against the accused.
7. On 29 March 2007, a number of soldiers were deployed on surveillance duties in
the area of the Cornakinnegar Road, Lurgan. At about 8.45 p.m., Soldier B observed a
male, whom he identified as Damien McKenna, walking countrywards with two other
males. Surveillance footage, filmed by a camera controlled by Soldier F, shows three
males, alleged by the prosecution to be the three seen by Soldier B, walking down a
lane into a field. The group remained in the field for about one hour, and were seen at
three different points.
8. At 10 p.m., Soldier E saw a group of men walking up the lane from the field, and
then turn towards Lurgan. He followed them and was able to count four in the group.
Soldier D also saw the group of four men, and saw all four get into a Nissan Primera
car, which drove off towards Lurgan town centre. The car was stopped by police a
short distance away. In the car were the three accused and a fourth man. All were
arrested and searched. McKenna and McConville had dirty hands and wet and dirty
trousers.
9. McKenna, who was the front seat passenger, was found to have on him items which
included a circuit tester, wire cutters and strippers, and gloves. McConville, who was
the driver, was found to have gloves. A sock was found under the front passenger
seat.
10. The four accused were interviewed, but made no admissions. A search of the field
proved negative, although, as the field bordered the railway track, the search
concentrated on that area. The accused were then released.
11. Five days later, on 5 April, the field was searched again. During this search, an
improvised mortar and launch tube were found at a point where it is alleged the group
of men had been standing for about ten minutes. The accused were re-arrested,
although it was not possible to find the fourth man who had been in the car.
12. Forensic examination found fibres indistinguishable from fibres from the gloves
found in the possession of McConville, on the mortar shell, launch frame and a tape
lift from the gate to the field. Fibres indistinguishable from the sock found under the
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