R v Attorney General for Northern Ireland and Another, ex parte Devine ; R v Same, ex parte Breslin

JurisdictionEngland & Wales
JudgeLord Keith of Kinkel,Lord Oliver of Aylmerton,Lord Goff of Chieveley,Lord Jauncey of Tullichettle,Lord Browne-Wilkinson
Judgment Date06 February 1992
Judgment citation (vLex)[1992] UKHL J0206-3
Date06 February 1992
CourtHouse of Lords

[1992] UKHL J0206-3

House of Lords

Lord Keith of Kinkel

Lord Oliver of Aylmerton

Lord Goff of Chieveley

Lord Jauncey of Tullichettle

Lord Browne-Wilkinson

Regina
and
Her Majesty's Attorney General for Northern Ireland and Another
(Respondents)
Ex Parte Devine (A.P.)
Appellant
(Northern Ireland)
Regina
and
Her Majesty's Attorney General for Northern Ireland and Another
(Respondents)
Ex Parte Breslin (A.P.)
(Appellant)
(Northern Ireland)
(Consolidated)
Lord Keith of Kinkel

My Lords,

1

I have read the speech to be delivered by my noble and learned friend Lord Goff of Chieveley and I agree with it. For the reasons given by him I would dismiss this appeal.

Lord Oliver of Aylmerton

My Lords,

2

I have read the speech to be delivered by my noble and learned friend Lord Goff of Chieveley and I agree with it. For the reasons given by him I would dismiss this appeal.

Lord Goff of Chieveley

My Lords,

3

These appeals are concerned with the admissibility of documentary evidence at coroners' inquests in Northern Ireland. They have arisen out of an inquest conducted between 3 February and 22 April 1987, by Mr. R.H.C. O'Doherty, H.M. Coroner for the District of Londonderry and North Tyrone, sitting with a jury, enquiring into the deaths of three young men, Michael and David Devine and Charles Breslin. The appellants, William Devine and Joseph Breslin, are the fathers of the young men who died.

4

I gratefully adopt the account of the background events set out by Carswell J. in his judgment as follows.

"Many of the essential facts surrounding the death of the deceased men were not in dispute. on the night of 23 February 1985 shortly before 5 a.m. they were passing through a field adjacent to the rear of 36 Fountain Street, Strabane. Two of them were dressed in parkas and jeans and the third in a boiler suit. All three had masks and wore rubber gloves. Each was carrying a loaded rifle. By their bodies after the shooting was found a holdall containing two homemade grenade projectiles and two improvised launchers, a loaded rifle magazine, two modified cartridge cases, two masks and two pairs of rubber gloves. It is clear beyond argument that the men were armed terrorists, engaged at the time on a mission involving violence. The deceased men were killed by gunfire directed at them by soldiers, which caused fatal bullet wounds to the head and trunk of each. Michael Devine was hit by at least 28 bullets, David Devine by five bullets and Charles Brendan Breslin by at least thirteen. There was no evidence that any of the deceased discharged any shots during the encounter.

The circumstances in which the soldiers shot at the deceased were the subject of controversy. The solicitor for the applicants sought to establish in cross-examination that they had been a group of members of the SAS lying in wait for the deceased in order to ambush them, and that they had surprised them and shot them down without challenging them or attempting to apprehend them. None of the three soldiers who fired from the field at the deceased was called to give evidence, but the Coroner admitted in evidence statements made to the police by the three soldiers, identified only by letters, in which they narrated their version of the events. The burden of their account was that the deceased men almost walked into them while they were on foot patrol, and swung their weapons towards the soldiers, who immediately opened fire and kept shooting until the gunmen appeared to have ceased to present a risk."

5

At the close of the inquest, the jury brought in verdicts which were in almost identical terms in respect of each of the deceased. The material part of each verdict was in the following terms, which are taken from the verdict in respect of Charles Breslin:

"Cause of death:

I(a) Bullet wounds of head and trunk.

II Findings:

We the jury unanimously agree that Mr Charles Brendan Breslin met his death on the 23rd February 1985, in a field at the rear of 36 Fountain Street, as a result of gun-shot wounds to his head and trunk. The incident took place at approximately 4.55 a.m."

6

As Carswell J. pointed out, this form of verdict properly reflects the requirements of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963, as subsequently amended. Under section 31(1) of the Coroners Act (Northern Ireland) 1959, the jury are required to give their verdict setting forth who the deceased person was and how, when and where he came to his death. By rule 15 of the 1963 Rules (which were made under powers conferred by the 1959 Act), the proceedings and evidence at an inquest shall be directed solely to ascertaining (a) who the deceased was; (b) how, when and where the deceased came by his death; and (c) certain particulars required by statute to be registered concerning the death. Rule 16 provides that neither the Coroner nor the jury shall express any opinion on questions of criminal or civil liability or any matters other than those referred to in rule 15.

7

After the inquest, the two appellants commenced proceedings by way of judicial review, asking for an order that the verdicts at the inquest be quashed. Numerous grounds were relied upon, to which were later added by amendment three further grounds relating to the admission by the Coroner of the written statements of the three soldiers. All these grounds were rejected by Carswell J. who accordingly refused the applications of both appellants. They then appealed to the Court of Appeal; at the hearing of the appeals, they pursued only their submissions relating to the admission of the statements. The Court of Appeal rejected those submissions and dismissed the appeals, but gave leave to appeal to your Lordships' House.

8

It will be convenient at this stage to set out rule 17 of the 1963 rules (as substituted by amendment in 1980), the terms of which lie at the heart of the present appeals. Rule 17, as so amended, provides as follows:

"(1) A document may be admitted in evidence at an inquest if the coroner considers that the attendance as a witness by the maker of the document is unnecessary and the document is produced from a source considered reliable by the coroner.

(2) If such a document is admitted in evidence at an inquest the inquest may, at the discretion of the coroner, be adjourned to enable the maker of the document to give oral evidence if the coroner or any properly interested person reasonably so desires.

(3) Such a document shall be marked by the coroner in accordance with these rules with the additional words "received pursuant to rule 17."

9

It has been the case of the appellants that the Coroner had no power to admit the written statements of the three soldiers as documentary evidence under rule 17 without the soldiers, as the makers of the statements contained in the documents, attending as witnesses at the inquest. However, under rule 9(2) of the 1963 rules, a person suspected of causing the death is not compellable to give evidence at the inquest. The Coroner accordingly held that the three soldiers (who, in accordance with the usual practice in Northern Ireland, were identified only as soldiers A, B and C respectively) were not compellable witnesses, and he proceeded to admit their written statements...

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