Farrell (formerly McLaughlin) v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Viscount Dilhorne,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Russell of Killowen,Lord Lane |
| Judgment Date | 19 December 1979 |
| Judgment citation (vLex) | [1979] UKHL J1219-1 |
| Date | 19 December 1979 |
| Court | House of Lords |
[1979] UKHL J1219-1
Viscount Dilhorne
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Russell of Killowen
Lord Lane
House of Lords
Upon Report from the Appellate Committee to whom was referred the Cause Farrell (formerly McLaughlin) against the Secretary of State for Defence, That the Committee had heard Counsel as well on Monday the 5th as on Tuesday the 6th days of November last upon the Petition and Appeal of the Ministry of Defence of Whitehall, London SW1 praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal in Northern Ireland of the 20th day of December 1978 except so far as regards the words "that the (plaintiff) appellant's costs be taxed in accordance with Schedule 3 of the Legal Aid and Advice Act (Northern Ireland) 1965." might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Olive Farrell lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal in Northern Ireland of the 20th day of December 1978 in part complained of in the said Appeal be, and the same is hereby, Reversed and that the Order of Lord Justice Gibson of the 25th day of February 1977 be, and the same is hereby, Restored: And it is further Ordered, That there be no Order as to Costs in this House save that the Respondent's Costs be taxed in accordance with the provisions of Schedule 3 to the Legal Aid and Advice Act (Northern Ireland) 1965 : And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice in Northern Ireland to do therein as shall be just and consistent with this Judgment.
My Lords,
The respondent was the widow of one of three men shot and killed in Newry in Northern Ireland during the night of the 23rd October 1971. During that day soldier "X", the officer in command of a detachment of troops in the town, received information that it was highly likely that a bomb attack would be made that night by three men on the National Provincial Bank in Hill Street in that town.
Soldier "X" told soldier "A" this and told him to go with three other soldiers "B", "C", "D", and take up a position on the roof of a building in Hill Street opposite the National Provincial Bank. The four soldiers did so at about 10.30 p.m. Soldier "A" told the soldiers with him that on no account were they to open fire until he did. The street was well lit and the soldiers on the roof were above the street lights and so difficult, if not impossible, to see from the ground.
At a moment when soldier "B" was alone on the front of the roof, he saw two men walking up Hill Street towards the National Provincial Bank. He saw them cross the road and go to the night safe of the Bank. They appeared to be trying to open it. He then saw three men cross the road to the night safe and then there was a scuffle with the two already there. Soldier "B" called soldier "A" who saw the three men close to the night safe, with their backs towards him. He did not see the two who had got there first. After about 10 to 15 seconds Soldier "A" shouted "Halt". He saw the three men stop what they were doing and look up and down the street. One of them shouted "Run" and the three of them took to their heels. Soldier "A" cocked his rifle and shouted "Halt, I am ready to fire". The men did not stop. He fired and the three soldiers with him also fired, with the result that the three men were killed. It turned out that none of them was armed or carrying a bomb. One was found to be carrying a bag which had been in the possession of one of the two men who went first to the night safe. That bag contained a coat. The other of the two men had a bag containing cash which presumably he had intended to put in the night safe. That autumn there had been about 35 bomb explosions in Newry and two days before a bomb had been put outside the local Savings Bank.
On the 19th April 1973, about 18 months later, the respondent issued a writ claiming as widow and administratrix of McLaughlin, one of the three men killed, damages from the Ministry of Defence on the ground that his death was caused by the negligence of the Ministry, its servants and agents, and by assault and batteries committed by them. It was not until the 23rd January 1974 that the statement of claim was delivered. Paragraph 2 thereof, so far as material, reads as follows:
"2. … by reason of the negligence of the servants and agents of the defendants, and further and in the alternative by reason of the assaults on and batteries to the deceased by the said servants and agents of the defendants, the deceased was struck by a bullet or bullets which had been discharged from a firearm by one or more of the said servants or agents, whereby the deceased sustained such severe personal injuries that he died as a result thereof on the 23rd day of October 1971.
PARTICULARS OF NEGLIGENCE
(i) Failing and omitting to give any or adequate warning to the plaintiff.
(ii) Causing and permitting a firearm to be discharged at the deceased in the circumstances.
(iii) Discharging a firearm at the deceased with intent to kill him or cause him grievous bodily harm.
(iv) Failing and omitting to fire a warning shot.
(v) Failing and omitting to fire at the deceased in a fashion which would have minimised the risk of causing him serious injury or death.
(vi) Striking a blow which was out of proportion to the occasion.
(vii) Using excessive force to effect an arrest.
(viii) Causing and permitting a firearm to be discharged at the deceased at all.
PARTICULARS OF ASSAULTS AND BATTERIES
The plaintiff repeats the above particulars of negligence and says that the circumstances in which the deceased was killed by the servants or agents of the defendants were such that they constituted in law an assault and battery upon his person. In particular the plaintiff complains that the force used in executing an arrest of the deceased was excessive and unnecessary and unreasonable in the circumstances and was, therefore, out of proportion to the occasion."
It is apparent from this paragraph that the case the respondent sought to establish and the case that the Ministry had to meet was that it was negligence on the part of the four soldiers who fired the shots and, alternatively, assaults and batteries committed by them that brought about the death of McLaughlin.
There was no allegation in the statement of claim that there had been any negligence on the part of anyone else or in the planning of the operation to protect the Bank.
In their amended defence, the Ministry,inter alia, pleaded:
"If any servant or agents of the defendants discharged any bullet from any firearm and the deceased was struck thereby, which is denied, such person in doing so was using such force as was reasonable in the circumstances in the prevention of crime and/or the effecting or assisting in the lawful arrest of the deceased, who
(a) was attempting to escape after the commission or attempted commission of offences of robbery, assault and battery, and was unlawfully at large;
(b) was reasonably thought by such person to have been attempting to destroy or damage bank premises in the town of Newry by the use of a bomb or incendiary device at a time when in the recent past there had been many attacks by bombs and incendiary devices upon premises in Newry.
(c) …"
The trial of this action took place before Gibson L.J. and a Belfast jury. After the evidence was heard, counsel made a number of submissions to the learned Lord Justice. In the course of the discussion, Mr. Ferguson for the respondent suggested that a question should be left to the jury along the lines "did the soldiers shoot the deceased without lawful cause or excuse" and that the second question left to them should be "were the soldiers guilty of negligence causing the death of the deceased." It is clear that both these questions were directed to the conduct of the soldiers who had been on the roof in Hill Street and who had fired and were not directed to any question of anyone else being guilty of negligence. After the discussion, the learned Lord Justice decided not to leave the question of negligence to the jury. In my opinion he was right not to do so, for if the soldiers had ananswer to the claim based on assault and battery, that would also be an answer to the claim against them based on negligence and to leave both questions to them would only confuse. In this House Mr. Ferguson did not contend that there should be a new trial on account of negligence not being left to the jury.
The learned Lord Justice invited the jury to answer the following eight questions and I append to them the answers that they gave:
"1. Did the soldiers fire because soldier 'A' suspected with reasonable cause—
(a) that the husband of the plaintiff and two other men had attempted to place an explosive bomb or an incendiary device in or at the Provincial Bank and
(b) that such explosive bomb or incendiary device would endanger life?
Answer: (a) YES
(b) YES
2. If the answers to questions 1(a) and 1(b) or to question 1(a) is 'Yes', was it reasonable in the circumstances (including the reasonable suspicion of soldier 'A') in the prevention of crime for the soldiers to fire to kill?
Answer: YES
3. If the answers to...
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