McAleese (Mary) on behalf of McAleese (David (deceased)) v The Ministry of Defence and The Chief Constable of the Police Service of Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | Master Bell |
| Judgment Date | 07 September 2018 |
| Neutral Citation | [2018] NIMaster 9 |
| Court | High Court (Northern Ireland) |
| Date | 07 September 2018 |
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Neutral Citation No: [2018] NIMaster 9
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: 2018NIMaster9
Delivered: 07/09/2018
IN THE HIGH COURT OF JUSTICE OF NORTHERN IRELAND
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QUEEN’S BENCH DIVISION
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BETWEEN:
Mary McAleese on behalf of David McAleese (deceased)
Applicant;
and
The Ministry of Defence
and
The Chief Constable of the Police Service of Northern Ireland
Respondent.
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Master Bell
INTRODUCTION
[1] On 20 December 1972 Mr David McAleese was waiting for a lift to
work when he was shot dead on the Newtownards Road, Belfast. Although
no proscribed organisation claimed responsibility, loyalist paramilitary
organisations were suspected of being responsible.
[2] On 11 May 2017 the applicant’s solicitor issued a pre-action protocol
letter to the Crown Solicitor’s office seeking eighteen categories of documents
held by the Ministry of Defence and the Chief Constable. On the same date
the applicant’s solicitor also issued a summons seeking the same
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documentation by way of an application for pre-proceedings discovery under
section 31 of the Administration of Justice Act 1970.
[3] The applicant seeks a vast range of investigatory and intelligence
material from the Ministry of Defence and the Police Service of Northern
Ireland both in connection with the murder of Mr McAleese and, more
broadly, in terms of general intelligence summaries being circulated in the
weeks prior to, and following, Mr McAleese’s death. The applicant indicates
that the purpose of the application is to obtain access to this investigatory and
intelligence material in order to determine whether :
(i) An agent or informant of the police or army was involved in the
planning and/or preparation of the attack on Mr McAleese;
and/or
(ii) An agent or informant of the police or army was involved in the
execution of the attack on Mr McAleese; and/or
(iii) Information was passed to the police or army by an agent or
informant regarding responsibility for the murder of Mr
McAleese and not all steps were taken to bring all those
responsible to justice and to prevent such activity happening
again.
[4] The application is grounded by two affidavits from Kevin Winters,
solicitor. One of the exhibits to these affidavits is a draft Writ. That draft Writ
alleges negligence, misfeasance in public office and breach of Article 2 of the
European Convention on Human Rights. The defendants have filed two
affidavits, one by Aaron Fuller and one by Assistant Chief Constable Mark
Hamilton.
[5] The applicant was represented by Ms Anyadike-Danes QC and Mr
Scott with the respondent being represented by Mr Aldworth QC and Mr
Warnock. I am grateful to counsel for their helpful oral submissions and
skeleton arguments.
THE PARTIES’ SUBMISSIONS
The Applicant’s submissions
[6] The applicant submitted sections of a report by the PSNI’s Historical
Enquiries Team (hereafter “HET”) into Mr McAleese’s murder. The report
sets out that Mr McAleese had been struck by two bullets while standing on
the Newtownards Road, Belfast. Both bullets exited his body and neither was
recovered. On the day of Mr McAleese’s murder a spent cartridge case was
found on the Mountpottinger Road, approximately 200 yards from the scene
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...of what inferences and when they should be drawn. [53] As I wrote recently in McAleese v Ministry of Defence and Chief Constable [2018] NIMaster 9: “[66] In Thorn Security Ltd v Siemens Schwartz AG [2008] EWCA Civ 1161 Mummery LJ described what an inference is: “The drawing of inferences is......