Re McCaughey’s Application (Leave Stage) (No 2) [High Court of Northern Ireland]
| Jurisdiction | Northern Ireland |
| Judge | Weatherup J |
| Judgment Date | 28 March 2012 |
| Date | 28 March 2012 |
| Court | Queen's Bench Division (Northern Ireland) |
| Docket Number | WEA461 |
Neutral Citation: [2012] NIQB 23
High Court of Northern Ireland,
Judge:Weatherup J
WEA461
Appearances:K Quinlivan QC and Ms Doherty for the applicant, Mr Daly for the proposed respondent, the coroner, and Mr Maguire QC for the notice party, the Ministry of Defence.
Issues: Whether a coroner should admit potentially relevant similar fact evidence; whether evidence in relation to a different event that went only to a witnesses' credibility should be admitted; whether judicial review should intervene prior to the conclusion of inquest proceedings.
Facts: The applicant's brother and another had been shot dead by members of a specialist military unit, the SAS, in controversial circumstances on 9 October 1990. Inquests were being held that had to be compliant with Art 2 ECHR: McCaughey and Grew's ApplicationELR[2012] 1 AC 725, [2011] Inquest LR 22. The applicant sought to argue that the inquest should investigate whether the Army as an institution operated a policy to kill those who might otherwise have been arrested, or whether individual soldiers or those instructing the patrol operated such an approach, resulting in unnecessary deaths. The coroner ruled that a witness, known as soldier A, should not give evidence concerning his involvement in two other deaths by shooting during security operations in Northern Ireland in 1986. The applicant had wished to cross examine soldier A about the 1986 deaths because of alleged similarities with the 1990 shootings and to attack his credibility in light of a pathologist's report that one of those killed in 1986 had been shot whilst lying on his back, which was inconsistent with a statement given by soldier A.
The coroner had concluded that there were similarities between the 1990 deaths and one of the 1986 cases and as such soldier A's involvement in that earlier incident was potentially relevant to the issue of the existence of a shoot to kill policy. However the coroner ruled that the 1986 evidence should not be admitted because of unfairness to soldier A in putting questions to him regarding another contentious and unsettled death. The 1986 case was already to be the subject of a new Art 2 compliant inquest where new statements would be taken from all the witnesses including soldier A. The coroner held that to allow material about that other incident would be more prejudicial that probative. Further he found it was difficult to properly contextualise the various incidents within soldier A's career history and this risked the jury over-estimating the significance of the 1986 incident. The coroner found he had had no jurisdiction to conduct a general inquiry into SAS deaths in Northern Ireland and that the evidence would distract and dilute attention from consideration of the central issues to be addressed by the jury in this inquest.
1. This is an application for leave to apply for judicial review of a ruling of the coroner on 23 March 2012 at an inquest into the deaths of Martin McCaughey and Dessie Grew on 9 October 1990, which application is brought by the next of kin of Martin McCaughey. As the inquest is at hearing there is urgency in addressing the issues raised and the application which was heard today was treated as a rolled up hearing. Ms Quinlivan QC and Ms Doherty appeared for the applicant, Mr Daly for the proposed respondent, the coroner, and Mr Maguire QC for the notice party, the Ministry of Defence.
2. Evidence has been given at the inquest by soldier A, a member of the SAS, who was involved in the operation that led to the deaths of the deceased. The applicant seeks a declaration of the admissibility at the inquest of evidence from soldier A concerning his involvement in another operation that led to the death of a Francis Bradley on 18 February 1986. Further the applicant seeks a declaration of the admissibility of evidence of soldier A in relation to the operation that led to the death of a Seamus McIlwaine on 28 April 1986.
3. The grounding affidavit on this application states that a significant number of controversial deaths occurred as a result of SAS operations in Northern Ireland and have given rise to allegations of what is described as a shoot to kill policy, a matter that the next of kin of the deceased seek to have investigated at this inquest. By a shoot to kill policy is meant, as stated on behalf of the applicant, whether the Army as an institution operated a policy to kill those who might otherwise have been arrested or whether individual soldiers, such as soldier A or other members of the patrol or those instructing the patrol, operated such an approach to their task or whether the training of the soldiers who were engaged in operations was of such a character that it promoted an outcome that resulted in unnecessary deaths.
4. The coroner has included in the evidence at the inquest that of a soldier K in relation to the concept of military operations and the planning and control of operations involving the use of lethal force.
5. Further to an earlier application for judicial review reaching the Supreme Court in 2011 (McCaughey and Grew's ApplicationELR[2012] 1 AC...
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