Queen v Canning (Marvin)
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Judgment Date | 04 November 2010 |
| Neutral Citation | [2010] NICC 41 |
| Court | Crown Court (Northern Ireland) |
| Date | 04 November 2010 |
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Neutral Citation No. [2010] NICC 41
Ref:
McCL7903
Judgment: approved by the Court for handing down Delivered:
04/11/10
(subject to editorial corrections)*
IN THE CROWN COURT IN NORTHERN IRELAND
______
THE QUEEN
–v-
MARVIN CANNING
________
RULING NO 3 – ABUSE OF PROCESS [FINAL]
__________
McCLOSKEY J
I INTRODUCTION
[1] This ruling determines finally the Defendant’s application for a stay of the
indictment on the ground that his continued prosecution would be an abuse of the
process of the court. The Defendant is charged with two counts of kidnapping; two
counts of assault/unlawful and injurious imprisonment; two counts of inflicting
grievous bodily harm with intent; and one count of possession of a firearm with intent
to commit an indictable offence. The injured parties are described in this judgment as
BC and LD. The names of certain other persons have been similarly anonymised. The
dates specified in the indictment are between 23rd and 25th April 2007. The
protagonists in this prosecution are BC, LD and the Defendant. While there are many
other members of the cast, they have roles of a lesser nature.
II THE PROSECUTION CASE
[2] The outline in the ensuing paragraphs reflects the opening statement of Mr.
Hunter QC, who appeared with Mr. Russell on behalf of the prosecution. BC and LD
are described as cohabiting partners who, in April 2007, resided together in a town in
County Westmeath, Republic of Ireland which I shall hereinafter refer to as ‘X’. BC
operated a business in which LD performed various secretarial and administrative
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duties. During the course of 23rd April 2007 (a Monday), BC spent a number of hours
in the company of an acquaintance in a public house in X, drinking pints of beer. LD
was also in their company for a period, drinking coffee. They had some suspicions
about the conduct of two strangers who were present. LD went home first, followed
by BC. Later, when the front doorbell rang, LD responded and was confronted by five
or six men, who burst in. They attacked and injured her. BC was similarly attacked
and injured, more seriously. There were shouts of “Where’s the €170,000? …”.
[3] A bag was placed over BC’s head and his hands were tied behind his back.
While LD lay face down on a bed, some ransacking of the premises occurred. Both
were then led into a white van, which then travelled the long distance to Derry. At
this second location, they were escorted into a house and separated. Once again, LD
was obliged to lie face down on a mattress. Meanwhile, BC was interrogated and
assaulted in another room. He was questioned about his business and money. It was
represented that he was talking to “the IRA”. Both captives were forced to undress and
don a boiler suit of sorts. They were removed from the premises into the same vehicle
and driven to a third location. The vehicle was then driven away, while two of their
captors remained with them. BC was required to remove his boiler suit, duly replaced
by another, while the sleeves of LD’s attire were ripped off. While the captives were
physically separated, BC, lying on the grass, was shot in both ankles. LD did not
witness this, but saw two men running away. She was able to alert local residents, as a
result of which police and ambulance personnel attended shortly before 5.00am on 24th
April 2007. The location was a street in the Creggan area of Derry, to which I shall
hereinafter refer as “Y”. LD sustained relatively minor injuries. BC was more seriously
injured and, in particular, his left eye was damaged to the extent that a loss of sight has
ensued.
[4] The prosecution case is based, firstly, on the visual identification of the
Defendant and recognition of his voice by the two injured parties. In this respect, the
following are the central ingredients of the prosecution case:
(a) Both injured parties had become acquainted with the Defendant some
time previously.
(b) BC had conducted three meetings with the Defendant (amongst others)
during the previous year.
(c) LD had attended two of these meetings.
(d) Both injured parties were familiar with the Defendant’s appearance and
his voice.
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(e) BC had spoken to the Defendant during the three meetings in question
and had also spoken to him numerous times on the telephone.
(f) BC recognised the Defendant, fleetingly, during the first phase of the
relevant events at the injured parties’ home in X.
(g) BC also recognised the Defendant’s voice during this initial phase.
(h) BC heard the Defendant’s voice in the van during the journey between X
and Londonderry.
(i) On 18th July 2007, during a video film identification procedure, BC
identified the Defendant as “a person who took me from my home address in a
van to an unknown address in Londonderry, Northern Ireland”.
(j) LD was also familiar with the Defendant’s appearance and voice through
attending two of the said meetings and certain telephone conversations
with him.
(k) During the same journey by road, LD saw the Defendant get into the
vehicle.
(l) LD further recognised the Defendant’s voice during a telephone
conversation which unfolded in the course of the journey.
(m) LD also identified the Defendant by his voice during the events at the
second location in Londonderry.
(n) On 25th April 2007, during an identification procedure, LD identified the
Defendant as “a person who on 23rd April 2007 at [their home in X] forced
entry and took me and my partner to Londonderry in a van”.
[5] The other elements of the prosecution case against the Defendant were outlined
to the court as the following:
(a) On 24th April 2007, in the course of a search of the Defendant’s home in
Londonderry, a cord style jacket was recovered from a washing machine,
as a washed item. LD was shown this item and recognised it as
something worn by one of the men in the back of the van.
(b) In interview, the Defendant accepted that he knew one MGH and that the
latter had been in his house in the early hours of 24th April 2007. A pair of
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