Queen v Michael Devine
| Jurisdiction | Northern Ireland |
| Judge | McCloskey LJ |
| Judgment Date | 28 January 2021 |
| Neutral Citation | [2021] NICA 7 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 28 January 2021 |
1
Neutral Citation No: [2021] NICA 7
Judgment: approved by the court for handing down
(subject to editorial corrections)
Ref: McC11389
ICOS No:
Delivered: 28 /01/2021
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_________
ON APPEAL FROM THE CROWN COURT
_________
R
-v-
MICHAEL DEVINE
_________
IN THE MATTER OF A STATUTORY REFERRAL BY THE
CRIMINAL CASES REVIEW COMMISSION
_________
Before: Morgan LCJ, Treacy LJ and McCloskey LJ
________
Representation
Appellant: Mr Frank O’Donoghue QC and Mr Jonathan Connolly, of counsel,
instructed by John J Rice & Co Solicitors
Respondent: Mr Gerald Simpson QC and Mr Robin Steer, of counsel, instructed
by the Public Prosecution Service
________
McCLOSKEY LJ (delivering the judgment of the court)
Dramatis Personae
Michael Devine: the appellant
Paul Kelly: co-accused
Sean Hughes: the defendant in a related prosecution
Kathleen Trainor: the injured party as regards counts 4–6 (infra) and a potential
prosecution witness in the case against Sean Hughes
Detective Sergeant Harper and Detective Constable Lumley: the interviewing
police officers who recorded the appellant’s alleged admissions
Detective Chief Inspector Rawson and Detective Inspector Garvey: other
interviewing officers
Police Constable Collins: arresting officer
2
Introduction
[1] This is the reasoned judgment of the court, having announced at the
conclusion of the hearing on 2 December 2020 that its decision was in favour of the
appellant.
The appellant’s convictions
[2] This is an appeal via the mechanism of a referral by the Criminal Cases
Review Commission (the “Commission”) under Part II of the Criminal Appeal Act
1995. It relates to the convictions of Michael Devine (“the appellant”) on 5 February
1981 at Belfast Crown Court. The counts on the Bill of Indictment and the respective
outcomes were as follows:
Count
Offence
Outcome
Sentences Imposed
(All Concurrent)
1
Hijacking, contrary to s.2(1)(a) of the
Criminal Jurisdiction Act 1975
Not Guilty
N/A
2
Possession of a firearm with intent
contrary to s. 16(1) of the Firearms Act
(NI) 1969
Guilty
10 years’
imprisonment
3
Possession of a firearm and ammunition
with intent contrary to s. 14 of the
Firearms Act (NI) 1969
Guilty
14 years’
imprisonment
4
Conspiracy to cause GBH with intent
contrary to s.18 of OAPA 1861
Guilty
16 years’
imprisonment
5
Causing GBH with intent contrary to s.18
OAPA 1861
Guilty
16 years’
imprisonment
6
Conspiracy to pervert the cause of justice,
contrary to common law
Guilty
16 years’
imprisonment
7
Attempted murder, contrary to common
law
Guilty
20 years’
imprisonment
8
Wounding with intent, contrary to s.18
OAPA 1861
Guilty
16 years’
imprisonment
9
Possession of a firearm and ammunition
with intent contrary to s. 14 of the
Firearms Act (NI) 1969
Guilty
14 years’
imprisonment
10
Possession of a firearm and ammunition
with intent contrary to s. 19(a) of the
Firearms Act (NI) 1969
Guilty
8 years’
imprisonment
11
Belonging to a proscribed organisation,
contrary to s.21(1)(a) of the NI (Emergency
Provisions) Act 1978
Guilty
8 years’
imprisonment
12
Taking and driving away, contrary to
s.148 of the Road Traffic Act (NI) 1970
Not Guilty
N/A
3
Factual Matrix
[3] The appellant was first arrested, in January 1979, for a number of suspected
offences arising from an alleged paramilitary meeting at Divis Flats on 8 January
1979 during which he allegedly disposed of a gun by throwing it from a window
when the meeting was interrupted by an army raid. The gun had allegedly been
used by the appellant on 8 October 1978 to shoot a police officer. He was released
without charge due to insufficient evidence (see indictment: counts 7 – 10).
[4] Chronologically, the next material events unfolded in June 1979 when it was
alleged that the appellant conspired to inflict grievous bodily harm on one Kathleen
Trainor. Ms Trainor was a potential Crown witness in a prosecution arising from the
Divis Flats events in January, against one Sean Hughes (see indictment: counts 4 – 6).
[5] Next, on the evening of 29 September 1979 a motorbike was reported as
having been hijacked by two men on the Falls Road, Belfast. The appellant (then
aged 17 years and 9 months) and another young male were encountered by police at
9.15pm using the motorbike and, following a chase, the appellant (only) was
arrested (see indictment: counts 1 – 3 and 12).
[6] The arresting officer was one Constable Collins who, having cautioned the
appellant at the police station, recorded an oral response and later made a witness
statement.
[7] During three police interviews following his arrest for the alleged offences on
29 September 1979, the appellant was recorded by the interviewing officers (D/S
Harper and D/C Lumley) as having made full admissions to all of offences
ultimately included on the Bill of Indictment.
[8] Both the appellant and Mr Kelly independently of each other and without any
opportunity to confer complained to the police doctor that false admissions were
being recorded by the interviewing police. During a fourth interview, the appellant
denied having made earlier admissions. Later, when interviewed by two other
officers (DCI Rawson and DI Garvey) he alleged that Messrs Harper and Lumley
had written things that he had not said.
Prosecution of the appellant
[9] As noted above the indictment comprised 12 counts. The breakdown is as
follows:
(i) Counts 1 – 3 and 12: These four counts arose out of the alleged hijacking of the
motorcycle on 29 September 1979.
(ii) Counts 4 – 6: alleged conspiracy to cause grievous bodily harm to Kathleen
Trainor in June 1979.
(iii) Counts 7 – 10: These four counts related to the alleged shooting of the police
officer on 08 October 1978.
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