In the matter of an Application by Jean McBride for Judicial Review
| Jurisdiction | Northern Ireland |
| Judge | Carswell LCJ |
| Neutral Citation | [2003] NICA 23 (1) |
| Court | Court of Appeal (Northern Ireland) |
| Date | 13 June 2003 |
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Neutral Citation No. [2003] NICA 23(1) Ref:
CARF3861
Judgment: approved by the Court for handing down Delivered:
13/06/2003
(subject to editorial corrections)
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_____
IN THE MATTER OF AN APPLICATION BY JEAN McBRIDE FOR
JUDICIAL REVIEW (NO 2)
_____
Before: Carswell LCJ, Nicholson LJ and McCollum LJ
_____
CARSWELL LCJ
Introduction
[1] On 4 September 1992 Guardsman James Fisher and Guardsman Mark
Douglas Wright were on duty in the New Lodge area of Belfast, as members
of a four-man team engaged, along with other members of the Security
Forces, in an anti-terrorist operation in the area. An incident occurred in the
course of which Fisher and Wright both discharged shots from their rifles in
Upper Meadow Street at a youth of 18 years named Peter McBride, the son of
the appellant, who lived a short distance away. Two shots struck McBride in
the back and caused his death.
[2] Fisher and Wright were charged with the murder of McBride and on 10
February 1995 they were both convicted by Kelly LJ, sitting without a jury,
and sentenced to imprisonment for life. Their appeals to the Court of Appeal
were dismissed on 21 December 1995 and they served some six years in
prison before being released by order of the Secretary of State on 1 September
1998.
[3] The Army Board considered, pursuant to Queen’s Regulations, whether
the guardsmen should be discharged or retained in the Army. The Board
decided in 1998 that they should be retained, but that decision was quashed
by Kerr J on 3 September 1999 on an application for judicial review brought
by the appellant. A differently constituted Army Board again considered the
issue of discharge or retention and on 21 November 2000 it concluded that the
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guardsmen should be retained in the Army. The appellant brought an
application for judicial review of this decision, but on 17 April 2002 Kerr J
dismissed the application. The appellant appealed to this court against his
decision.
The Trial Judge’s Findings
[4] The trial judge’s findings are of importance in considering the issues,
particularly since the 1998 decision of the Army Board was quashed on the
ground that it did not properly appreciate the effect of those findings and
adopted reasons for its decision to retain the guardsmen which were
inconsistent with them. The trial judge set out the evidence and his
conclusions at length in his judgment and these were carefully reviewed on
the appeal to this court. I shall therefore not attempt to repeat the evidence in
extenso, but shall set out the material findings in summary form:
(a) Guardsman Fisher was aged 24 years at the time of the incident and
Guardsman Wright 21 years. Both had been in the Army for two
years and some months and were on their first tour in Northern
Ireland, where they had been for four months.
(b) They had left their barracks at 7.45 am on the day of the incident. The
operation for which they were acting in support was a police search
of the Celtic Club. The guardsmen’s team was engaged in
“satelliting”, ie touring the surrounding streets on the look-out for
terrorist attacks. They were briefed that the operation was one of
high risk. There had been general warnings of the danger of coffee jar
bombs being thrown, which presented a serious risk to patrolling
soldiers.
(c) Shortly after 10 am Lance Sergeant Swift, the leader of the team,
stopped Peter McBride as he made his way along Trainfield Street,
while the other members took up position nearby. He was carrying
an object which the guardsmen said in evidence they thought might
be a coffee jar bomb in a plastic bag. The evidence about the
appearance of this object was conflicting, but the judge found that it
was in fact a grey T-shirt which the deceased had earlier collected
from his sister and that he was possibly also carrying a white paper
or plastic bag.
(d) Lance Sergeant Swift spent some little time speaking to McBride, and
the judge found as a fact, on which he was satisfied beyond
reasonable doubt, that during this time Swift searched McBride and
whatever he was carrying, which each of the guardsmen saw occur.
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(e) McBride suddenly snatched Swift’s radio earpiece from his ear, broke
away from him, jumped over a garden wall and ran off at speed
down the adjoining street, still holding the object or objects which he
had been carrying. Lance Sergeant Swift shouted “Grab him” and the
two guardsmen set off in pursuit.
(f) McBride was able to run much faster than the soldiers and by the
time he was in Upper Meadow Street he was some 80 or 90 yards
ahead of them. They shouted at him to stop or they would fire, but
he kept running towards the end of the street.
(g) Both soldiers fired aimed shots at McBride, Fisher firing three and
Wright two rounds. The deceased was struck by two bullets in the
upper back, which set up a fatal haemorrhage.
(h) McBride was not in possession of any bomb or weapon when he was
shot.
(i) Fisher put forward the defence that he believed that McBride was
carrying a coffee jar bomb and that he or other soldiers were in
danger of being caught in a “come-on” or ambush. The judge
rejected this defence and held that there was no reasonable possibility
that Fisher held an honest belief that McBride carried or might have
carried a bomb or that he was about to be attacked or that his life was
in danger. Nor were the circumstances of his firing such as to require
a split-second decision. The judge also rejected the defences of self-
defence and acting in the prevention of crime.
(j) Wright claimed that he believed that McBride was carrying a bomb,
but did not aver that he thought that it was a danger to anyone or that
he perceived the situation as a “come-on”. He put forward the
defence that he only fired when he heard a shot nearby, which he
believed to have been fired at him or a member of his patrol by
McBride, but the judge rejected this defence. He was satisfied that
there was no reasonable possibility that Wright held or may have
held an honest belief that McBride fired a gun or that his life or those
of his comrades were in danger or had been put in danger by the
deceased. He also rejected the defences of self-defence and acting in
the prevention of crime.
(k) The judge accordingly concluded that both guardsmen had used
excessive and unreasonable force.
(l) They had acted in concert in the unlawful enterprise of shooting at
the deceased, and it was therefore immaterial that it could not be
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