Liam Friel's Application and in the Matter of an Inquest in to the death of Thomas Friel
| Jurisdiction | Northern Ireland |
| Judge | Rooney J |
| Judgment Date | 06 November 2023 |
| Neutral Citation | [2023] NIKB 111 |
| Court | King's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2023] NIKB 111
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: ROO12251
ICOS No:
Delivered: 06/11/2023
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
KING’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY LIAM FRIEL
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF AN INQUEST INTO THE DEATH OF
THOMAS FRIEL
AND IN THE MATTER OF THE FACTUAL FINDINGS OF A CORONER
DATED 1 DECEMBER 2021
___________
Ms F Doherty KC with Mr David Heraghty (instructed by MacDermott McGurk
Solicitors) for the Applicant
Dr Tony McGleenan KC with Mr Michael Chambers (instructed by the Coroner’s Office)
for the Respondent
Mr Peter Coll KC with Mr Andrew McGuinness (instructed by the Crown Solicitor) for
the Ministry of Defence
Mr Donal Sayers KC (instructed by McCartan Turkington Breen Solicitors) for Soldier B
(Notice Party)
___________
ROONEY J
Introduction
[1] Thomas Friel (hereinafter the “deceased”) was born on 9 April 1952. In the
early hours of 18 May 1973, the deceased sustained a serious injury to his head
resulting in admission to the Altnagelvin Hospital, Glenshane Road, Derry, at
1:45am. On admission he was recorded as being deeply unconscious with both
pupils fixed and dilated and not reacting to light. He was admitted to the Intensive
Therapy Unit. Operative procedures revealed evidence of gross bruising of the
brain, oedema and a subdural clot. Despite treatment, his condition deteriorated,
and he died at 18:10hrs on 22 May 1973.
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[2] On admission to Altnagelvin Hospital, the history given was that the
deceased had come home drunk and had fallen downstairs resulting in
unconsciousness at about 12:45am. After an operation was carried out by
Mr Bennett, Consultant Surgeon, at the Altnagelvin Hospital, he interviewed the
deceased’s brother who advised him that the original history provided was incorrect
and that the injury had been caused by a “rubber bullet.”
[3] On 23 May 1973, a post-mortem examination was carried out by
Dr Derek Carson, Deputy State Pathologist for Northern Ireland. Dr Carson’s report
will be considered in more detail below. Specifically, Dr Carson noted a laceration
to the left side of the forehead below the hairline. He also noted two sutured
surgical incisions on the left side in the temporal and parietal regions. A single
surgical incision, 10cm long, was observed on the right anterior temporal region. An
irregular area of abrasions, 8cm x 3cm, was also noted on the right upper forehead
and right temporal region. Further examination revealed a fracture of the skull
running from the prominence on the left side of the head to the midline on the top of
the head. Dr Carson observed that this fracture of the skull was distinct from the
injuries on the forehead and could not have been caused by the same blow or blows.
When the skull vault was removed, quite extensive brain damage was revealed.
Dr Carson stated that the brain damage was associated with a fracture and must
have been caused by the same injury which caused the fracture. Dr Carson
concluded that it was the brain damage that caused the deceased’s death.
[4] As a result of his autopsy findings, Dr Carson concluded as follows:
“The interpretation of the injuries is difficult. Even if the
abrasions on the right side of the forehead are
disregarded, there remains the injury on the left forehead,
not associated with a skull fracture or brain injury, and
the separate injury on the left side of the skull with its
associated brain damage. All these injuries could have
been caused by a fall downstairs and, indeed, this view
would be supported by the number and severity of the
injuries and the fact that there was also some bruising
over the lower part of the spine in the neck. On the other
hand, the injury on the left side of the forehead could
have been caused by the impact of the nose of a rubber
bullet. On its own, this injury was not severe and should
not have offered a threat to life. The skull fracture on the
left side is most unlikely to have been caused by a rubber
bullet since it was above the thin temporal bone, which
could perhaps be damaged by such a missile. It was
much more likely to have been caused by a heavy fall on a
relatively flat hard surface. It may be that he was hit first
on the forehead by a rubber bullet and then fell heavily
striking his head on the ground. This would not,
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however, explain the abrasions on the right forehead …
In conclusion, therefore, it was not possible to say from
the autopsy findings alone which of the two accounts
given for the injuries sustained is the correct one.”
[5] The relevant histories provided to Dr Carson are included at pages 7 and 8 of
his report. As will be examined further, it seems that Dr Carson must have been in
possession of at least a statement or statements from the Ministry of Defence
regarding the discharge of a single baton round at a rioter at approximately 1:20am.
[6] On 6 March 1974 a short and perfunctory inquest resulted in an open verdict.
[7] The Historical Enquiries Team (“HET”) requested Dr Shepherd, Forensic
Pathologist, to review the circumstances of the deceased’s death, including a
consideration of Dr Carson’s post-mortem report, findings and photographs. In his
original report, Dr Shepherd concluded that, in his opinion, the photographs showed
a fracture to the right side of the frontal region of the skull and that the pattern of
injury to the right side of the forehead caused the underlying brain damage to the
right side of the brain which was “entirely consistent with the forceful contact with a
linear object, such as, a rubber bullet to the right side of the forehead.”
[8] As a result of conclusions reached by the HET and Dr Shepherd’s report, on
13 December 2013 the Attorney General directed that a fresh inquest should take
place.
[9] The Coroner, Mr McCrisken, held an inquest between 1-18 November 2021.
The factual findings which are the subject of this judicial review, were delivered on 1
December 2021.
[10] The scope of the inquest was helpfully set out by the coroner at para [30] of
his factual findings. It is useful to repeat the scope document at this stage:
“1. This inquest will examine the death of
Thomas Friel.
2. The inquest proceedings will consider the four
matters listed in Rule 15 of the Coroners (Practice and
Procedure) Rules (Northern Ireland) 1963, namely:
(a) the identity of the deceased;
(b) the place of death;
(c) the time of death; and
(d) how the deceased came by his death.
3. Related to the ‘how’ question, the Coroner will
consider:
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