McVeigh's (Sean) Application (No2)
| Jurisdiction | Northern Ireland |
| Judge | Weatherup LJ |
| Neutral Citation | [2017] NIQB 61 |
| Date | 28 June 2017 |
| Court | Queen's Bench Division (Northern Ireland) |
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Neutral Citation No: [2017] NIQB 61
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: WEA10328
Delivered: 28/06/2017
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
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QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
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BEFORE A DIVISIONAL COURT
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AN APPLICATION BY SEAN McVEIGH FOR JUDICIAL REVIEW (No. 2)
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Before: Gillen LJ, Weatherup LJ and Weir LJ
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WEATHERUP LJ (delivering the judgment of the court)
[1] This is an application for Judicial Review of a decision of a Lay Magistrate on 1
November 2012 pursuant to Schedule 5 paragraph 1(2) of the Terrorism Act 2000 to
issue a search warrant in relation to the applicant’s home and of the decision of the
Police Service of Northern Ireland (“PSNI”) to apply for that search warrant and
further to search the applicant’s home on 2 November 2012 and seize and retain the
applicant’s property. Mr MacDonald SC QC and Mr McGowan appeared for the
applicant, Mr Coll QC for the Lay Magistrate and Mr McGleenan QC and
Mr McLaughlin for the PSNI and the Secretary of State.
[2] The applicant seeks a Declaration of Incompatibility that Schedule 5 paragraph
1 of the Terrorism Act 2000 is incompatible with the European Convention on Human
Rights in relation to the right to respect for private life and home under Article 8, the
right to property under Article 1 of Protocol 1 and the right to a fair trial under
Article 6. The Secretary of State is represented in response to the Notice of
Incompatibility.
[3] At approximately 7.30am on 1 November 2012 Prison Officer [PO] David Black
was shot dead while travelling to work in his car on the M1 motorway. Witnesses
indicated that a vehicle with a Republic of Ireland number plate had pulled alongside
PO Black and discharged shots into the vehicle being driven by PO Black. Later that
morning the Fire Brigade were called to Inglewood in Lurgan, a housing estate close
to the Kilwilkie housing estate, where a vehicle with a Republic of Ireland number
plate was on fire. This vehicle was later established to have been used by the
perpetrators of the murder of PO Black.
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[4] The applicant’s grounding affidavit states that around 00.30 on 2 November
2012 he was arrested at his home in Lurgan under section 41 of the Terrorism Act 2000
in relation to the murder of PO Black and membership of the IRA and taken to Antrim
Crime Suite. The applicant lived at the property with his mother who remained at the
property while police executed a search warrant and seized a number of items that
included footwear, clothes, mobile phones and a Vauxhall Astra motor car.
[5] An application for extended detention of the applicant under Schedule 8 to the
Terrorism Act 2000 was refused by Her Honour Judge Loughran and the applicant
was released on 4 November 2012.
[6] Detective Inspector John Caldwell was the intelligence manager in the
investigation into the murder of PO Black. At 11.10 am investigating officers received
a briefing from Detective Superintendent Agnew about the murder of PO Black and
the burning of the motor vehicle at Inglewood estate. At 11.27am DI Caldwell received
a further briefing from DS Agnew on information regarding possible suspects, being
the applicant and another person I shall refer to as L. At 12.46pm DI Caldwell
attended a briefing by a PSNI intelligence officer about the structures of the new IRA
and its leadership. At 1.00 pm the intelligence officer advised of intelligence
indicating that L had been involved in suspicious activity in the Republic of Ireland
the previous night which may have involved the movement of a vehicle.
[7] DI Caldwell then received intelligence reports relevant to the applicant and a
further suspect I shall refer to as D. At 8.30 pm DS Agnew called a meeting of senior
investigators and at 8.55 pm he decided that the applicant and L and D should be
arrested in connection with the murder of PO Black and that applications should be
made for search warrants for each of their houses. The material sought included
firearms, masks, gloves, male footwear, mobile phones, sim cards and phone
documents, dissident republican paraphernalia, computers and gaming machines,
unwashed male clothing, vehicle keys and documents and number plates.
[8] DI Caldwell briefed Detective Constable Cross for the purposes of the arrest of
the applicant and Detective Constable Crothers for the purposes of applications for
search warrants in respect of the homes of the applicant and L and D. DI Caldwell
briefed DC Crothers on the intelligence information and DC Crothers made a
notebook entry on the briefing. DC Crothers then made an application for a search
warrant for the applicant’s home to a Lay Magistrate, who granted the application and
issued the warrant that was subsequently executed at the applicant’s home in the
early hours of 2 November 2012.
[9] The applicant contends that the intelligence information concerning the
applicant that was presented by DC Crothers to the Lay Magistrate was “inflated” so
that the Lay Magistrate issued the search warrant on the basis of inaccurate
information so as to render the search warrant invalid. It is necessary to examine
more closely the intelligence information available and the information acted on by
the Lay Magistrate.
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The Security Industry Authority's Application
...by electronic communication in the following way: “… the application [is] based upon the principles set out in Re McVeigh’s Application [2017] NIQB 61, specifically paragraph 45 of same. The application advanced [is] not a traditional ‘disclosure application’ within the ambit of CPIA 1996, ......