Re Gribben’s Application [High Court of Northern Ireland]
| Jurisdiction | Northern Ireland |
| Judge | Weatherup J |
| Judgment Date | 18 October 2012 |
| Court | Queen's Bench Division (Northern Ireland) |
| Docket Number | WEA8633 |
| Date | 18 October 2012 |
Neutral Citation: [2012] NIQB 81
High Court of Northern Ireland
Judge:Weatherup J
WEA8633
Appearances:K Quinliven QC for the applicant.
Issue: Whether leave should be given for judicial review where there were alleged deficits in the exploration of evidence, the summing up, the issues left to the jury and the jury directions in an Art 2 inquest following shootings by the military.
Facts: The applicant's brother, Mr McCaughey, and another had been shot dead by members of a specialist military unit in controversial circumstances on 9 October 1990.
The case had given rise to many legal proceedings and a fresh inquest had been ordered. During that fresh inquest further applications for judicial review of the coroner's rulings in respect of the evidence of a number of soldiers had been made (see McCaughey's Application[2012] NIQB 20; McCaughey's Application (No 2)IQLR[2012] Inquest LR 60). The outcome of those judicial review proceedings was that the matter was referred back to the coroner to reconsider the position in relation to some of the evidence, in particular that of Soldier A which the coroner had determined was potentially relevant.
The coroner had then attempted to make arrangements for the attendance of Soldier A to give evidence about a previous shooting incident, but his attendance had not been secured. Information was given to the jury about the previous lethal shooting incident by the disclosure of soldiers' statements and post mortem information that had been before a previous inquest.
The inquest had now been concluded. The applicant asserted that the coroner had failed to conduct proper examination of the broad circumstances in which the deceased came by their deaths as he had
(a) refused to provide the next of kin with disclosure of information relating to the involvement of military witnesses in other lethal force incidents;
(b) prevented the next of kin from questioning military witnesses about their involvement in other lethal force incidents;
(c) edited the statements of soldiers to remove any reference to their involvement in other lethal force incidents, so that material as to any form of shoot to kill policy was not before the jury;
(d) not taken sufficient steps to enable the next of kin to cross-examine Soldier A about his involvement in the other lethal force incident;
(e) presented questions to the jury that failed to ensure an Art 2 compliant inquest as they failed to ensure that the central issues relating to recourse to lethal force at each stage of the operation were identified and addressed;
(f) misdirected the jury on the justification for the use of force in failing to direct the jury to consider whether an honest belief was reasonably held;
(g) misdirected the jury on the need for absolute necessity;
(h) misdirected the jury as the relevance of shots fired at a body after death;
(i) failed to discharge a juror who was inattentive and hostile;
(j) made inadequate closing remarks to the jury;
It was further argued that the statutory requirements for jury anonymity and unanimous verdicts coupled with the ban on any inquiry into apparent or actual bias on the part of the jury was not Art 2 ECHR compliant.
1. This is an application for leave to apply for judicial review of the decisions of the coroner and the jury arising out of the Inquest completed on 2 May 2012 touching the deaths of Martin McCaughey and Desmond Grew who were shot dead by members of a specialist military unit in controversial circumstances on 9 October 1990.
2. The case has given rise to many legal proceedings but of recent note for present purposes is the opinion of the House of Lords in McCaughey v The Chief Constable PSNIELR[2007] 2 AC 226, [2007] Inquest LR 44, and of the Supreme Court in McCaughey's ApplicationELR[2012] 1 AC 725, [2011] Inquest LR 22. Proceedings were commenced in the name of Brigid McCaughey, mother of Martin McCaughey deceased and as she is now deceased the proceedings are continuing in the name of Sally Gribben, sister of the deceased.
3. After the inquest hearing had commenced the next of kin of the deceased applied for judicial review of the coroner's ruling of 8 March 2012 in relation to other lethal shootings involving the soldiers giving evidence at the inquest. McCaughey's Application[2012] NIQB 20 was decided on 12 March 2012. I summarise briefly because it is of some relevance to the context of the present application. The soldiers involved were known by letters. Soldiers A, C, D and G had disclosed their involvement in other lethal shootings. Soldiers B, E and I had been silent on a request to identify their involvement in previous shooting incidents. Other soldiers had stated that they were not so involved. The issue was whether there should be disclosure of defining features in relation to the other shooting incidents in which the four soldiers had been involved and whether the three silent soldiers should be required to provide an answer as to involvement in other incidents. However leave was refused as the inquest had started and the coroner had indicated that he would keep the issue under review.
4. There was a second application for judicial review in McCaughey's Application (No 2)IQLR[2012] Inquest LR 60 decided on 28 March 2012 in relation to the coroner's ruling on 23 March 2012 in relation to Soldier A and his involvement in two other incidents involving the deaths of men called Bradley and McIlwaine. The coroner had ruled that Soldier A's Bradley evidence was not to be admitted although he had found it was potentially relevant and the coroner had found that the McIlwaine evidence was not relevant. The outcome of the judicial review was that the matter was referred back to the coroner to reconsider the position in relation to the Bradley evidence.
5. Before considering the present grounds for judicial review I refer to the comments of Lord Bingham in R v DavisELR[2008] 1 AC 1128 at para 21
An inquest is an inquisitorial process of investigation quite unlike a criminal trial. There is no indictment, no prosecution, no defence, no trial. The procedures and rules of evidence suitable for a trial are unsuitable for an inquest. Above all there is no accused liable to be convicted and punished in these proceedings.
6. I take in turn the ground relied on by the applicant. The first three grounds can be taken together. Ground A states that the coroner refused to provide the next of kin with disclosure of information relating to the involvement of military witnesses in other lethal force incidents in Northern Ireland. Ground B states that the coroner prevented the next of kin from questioning military witnesses about their involvement in other lethal force incidents in Northern Ireland. Ground C states that the coroner edited the statements of soldiers to remove any reference to their involvement in other lethal force incidents so that material was not before the jury. The matters referred to are said to be relevant to the proper examination of the broad circumstances in which the deceased came by their deaths including, in particular the extent to which the soldiers who were involved in this incident might be said to have been involved in any form of shoot to kill policy.
7. The applicant's grounding affidavit was sworn by Mr Sheils which was a most comprehensive survey of all the grounds. The affidavit sets out some of the background and states that the shootings have given rise to allegations of a shoot to kill policy, that the soldiers involved in these deaths were members of the SAS, that the actions of the SAS resulted in 31 deaths in Northern Ireland in the 1980s and a further 10 deaths in 1990 to 1992, that representations were made to the coroner on the basis that the involvement of the soldiers in this incident who had been involved in other similar incidents was relevant to the inquest. The soldiers were identified as soldiers A to L. Soldiers A, B, C and D were involved in the shooting on the night in question. Soldiers E and F were located nearby. Soldiers G and I were part of a mobile support unit who arrived as the shooting was taking place. Soldier H was more senior and in radio communications with those on the ground from Headquarters. Soldiers J and K were involved in planning and control issues and soldier L was in the Army legal services and attended the police interviews.
8. In the disclosure of their involvement in other incidents soldiers A, C, D and G identified such involvement and soldiers B, D and I were silent on the issue. The coroner received a grid from the Ministry of Defence which identified the witnesses who were involved in this incident and who were involved in other lethal force incidents and specified the nature of their involvement in the other incidents. In addition the coroner received from the Ministry of Defence personnel files of the soldiers. This information was not available to the representatives of the families.
9. The coroner gave a ruling on 8 March 2012 where he found that one other incident involving Soldier A was of potential relevance to the issues to be determined in the inquest, namely the Bradley incident, and the details of that incident were to be disclosed to the next of kin. The applicant applied for judicial review of the decision of the coroner. The application was drafted in broad terms that included the release to the families of the information about the soldiers supplied by the Ministry of Defence so that the representatives of the families might make representations to the coroner in relation to the scope of the inquest and in particular to what, if any, extent the...
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...must be that of the Coroner and his decision should not be disturbed by the courts unless strong grounds are shown. In Re GribbenIQLR[2012] Inquest LR 134 Weatherup J refused leave to apply for judicial review in relation to the questions left for the jury in the inquests into the deaths of......