Gribben's (Sally) Application
| Jurisdiction | Northern Ireland |
| Judge | Morgan LCJ |
| Judgment Date | 10 March 2017 |
| Neutral Citation | [2017] NICA 16 |
| Date | 10 March 2017 |
| Year | 2017 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2017] NICA 16
Ref:
MOR10249
Judgment: approved by the Court for handing down
Delivered:
10/03/2017
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR
JUDICIAL REVIEW BY SALLY GRIBBEN
AND IN THE MATTER OF DECISIONS MADE BY THE CORONER FOR
BELFAST IN THE INQUEST TOUCHING ON THE DEATHS OF
MARTIN McCAUGHEY AND DESMOND GREW
Before: Morgan LCJ, Gillen LJ and Weir LJ
________
MORGAN LCJ (delivering the judgment of the court)
[1] This is an appeal against the decision of Weatherup J whereby he dismissed
the appellant’s application for judicial review of decisions made by the coroner
during the inquest into the fatal shooting of Martin McCaughey and Desmond Grew
in October 1990 by soldiers who were part of a specialist military unit as a result of
which it was claimed that the appellant’s rights under Article 2 ECHR were violated.
Ms Quinlivan QC appeared for the appellant with Ms Campbell, Mr Simpson QC
appeared with Mr Doran QC for the Coroner, Mr Perry QC with Ms Cumberland for
the Ministry of Defence and Mr McGleenan QC for the PSNI. We are grateful to all
counsel for their helpful oral and written submissions.
[2] The appellant contends that the learned trial judge erred in failing to find that
the inquest did not satisfy the adjectival obligation in Article 2 ECHR for the
following reasons:
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(i) the Coroner failed to disclose to the next of kin relevant or potentially
relevant material relating to the involvement of military witnesses in other
lethal force incidents in Northern Ireland;
(ii) the Coroner refused to permit the next of kin to cross-examine military
witnesses as to their involvement in other lethal force incidents in
Northern Ireland;
(iii) the Coroner redacted statements of military witnesses so as to remove all
references to their involvement in other lethal force incidents in
Northern Ireland;
(iv) the Coroner failed to recall a witness to permit questioning regarding his
involvement in previous lethal force incidents; and
(v) the learned trial judge also erred in refusing leave to apply for judicial review
of the Coroner’s decision to conduct the inquest with a jury.
Background
[3] On the night of 8 October 1990, as part of an ongoing operation by the RUC,
soldiers from a specialist SAS unit of the British army were conducting a surveillance
operation on a mushroom shed containing a stolen car at a farm complex at
91 Lislasley Road, Moy. Shortly after midnight two men, Martin McCaughey and
Desmond Grew, appeared outside the mushroom shed. Both were armed with
AK47 rifles and wearing gloves and balaclavas. A confrontation between the British
soldiers and McCaughey and Grew ensued and resulted in McCaughey and Grew
being shot dead by the soldiers. The IRA subsequently stated publicly that
McCaughey and Grew were IRA volunteers on active service at the time of their
deaths.
[4] There were a total of nine soldiers directly involved in the operation. Soldiers
A, B, C and D were located in the field observing the mushroom shed and all four
fired shots at the two deceased. Soldiers E and F were positioned observing a
laneway leading to the mushroom shed and did not fire any shots. Soldiers G and I
were providing mobile support. They did not arrive at the scene until after the
shooting and did not fire any shots. Soldier H was the officer in charge of the
surveillance operation. He was located in the headquarters of the RUC Tasking and
Coordination Group (“TCG”) and was in radio contact with Soldier A. Evidence at
the inquest was also received from soldier J about the training of SAS soldiers and
soldier K who was the officer commanding the specialist soldiers who were
providing military assistance to the RUC in Northern Ireland at the time. He had
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previously held the position occupied by soldier H in this operation during a
previous deployment to Northern Ireland in 1983 – 1985 and gave evidence in
particular about the training and mindset of those involved in operations of this kind
in the context of the shoot to kill case explored by the next of kin. Evidence was also
received from experts in military logistics concerned with the positioning and
location of the soldiers in the context of the operation.
[5] The RUC conducted an investigation into the shooting. They interviewed the
soldiers involved. Soldier A confirmed he fired 20 rounds, Soldier B 17 rounds,
Soldier C 19 rounds and Soldier D 16 rounds. Soldier D also confirmed that the last
two of his shots were fired into one of the deceased on the ground. On 2 April 1992
the Director of Public Prosecutions issued a direction of no prosecution in respect of
the soldiers.
[6] The soldiers contended that while carrying out surveillance on the mushroom
shed, armed men approached their position and, perceiving them to be a risk to their
lives, the soldiers opened fire. The next of kin, however, maintained that the claimed
surveillance operation was in actual fact an ambush, as evidenced by how the
soldiers had positioned themselves and their response to the changing
circumstances. It was not contended that there was any evidence that the RUC
prompted or instructed an ambush.
Scope and Disclosure
[7] The first three grounds of appeal arose from disputes around the proper
scope of the inquest and the related question of the extent of disclosure provided to
the Coroner by the MOD and thereafter by the Coroner to the next of kin. In 1994
the RUC provided a limited number of the investigation papers to the Coroner.
Many years of disputes and legal challenges relating to the disclosure of documents
by the police to the Coroner, disclosure of those documents by the Coroner to the
deceased’s next of kin and the scope of the inquest followed. On 8 December 2009
the Coroner issued the following preliminary definition of the scope of the inquest
that he proposed to hold:
“The coroner will consider the four basic factual
questions concerning: (a) the identity of the deceased; (b)
the place of death; (c) the time of death; and (d) how the
deceased came by their deaths.
Further, related to the ‘how’ question, the coroner will
examine in evidence the surveillance operation that
culminated in the deaths with reference in particular to
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