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Neutral Citation No. [2010] NIQB 58
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Ref:
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COG7803
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Judgment: approved by the Court for handing down
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Delivered:
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27/04/10
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(subject to editorial
corrections)*
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IN THE HIGH COURT OF JUSTICE IN NORTHERN
IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
DIVISIONAL COURT
_________
McCabe’s (Jim) Application
[2010]
NIQB 58
IN THE MATTER OF AN APPLICATION BY JIM
McCABE FOR JUDICIAL REVIEW
-and-
IN THE MATTER OF:
DECISIONS OF THE DIRECTOR OF PUBLIC
PROSECUTIONS IN 1983
-and-
DECISIONS OF THE PUBLIC PROSECUTION
SERVICE COMMUNICATED TO THE APPLICANT ON
30 SEPTEMBER 2008
________
Before: Higgins LJ, Girvan LJ, and
Coghlin LJ
________
COGHLIN LJ
[1]
This is the judgment of the court.
[2]
The applicant for judicial review in this case, Jim McCabe, seeks orders of
certiorari to quash decisions made by the Director of Public Prosecutions
(“DPP”) in 1983:
(i)
Not to prosecute any individual for murder or manslaughter arising out of
the circumstances of the death of his wife, Mrs Nora McCabe on
9 July 1981 .
(ii)
Not to prosecute any individual for an offence of perjury,
perverting the course of justice or conspiracy to pervert the course of justice
arising out of evidence given for the purposes of the police investigation and
inquest into the said death of Mrs Nora McCabe and in the alternative
declarations that the said failures were wrong in law and/or illegal and/or
irrational.
He further seeks certiorari to quash decisions taken by the Public Prosecution
Service (“PPS”) communicated to the applicant on
30 September 2008 :
(iii)
Not to prosecute any individual for murder or manslaughter arising
out of the circumstances of the said death.
(iv)
Not to consider the prosecution of any individual for an offence of
perjury, perverting the course of justice or conspiracy to pervert the course of
justice arising out of the evidence given for the purpose of the police
investigation at inquest into the said death.
Further, or in the alternative, he seeks declarations that the said
failures in respect of the 2008 decisions were wrong in law and/or illegal
and/or irrational.
[3]
For the purposes of this application the applicant was represented by Mr
Macdonald
QC
and Ms Doherty while Mr
Maguire
QC
and Mr McAllister appeared on behalf of the respondent. The court is grateful to both sets
of counsel for their well researched and helpful written and oral submissions.
Background facts
[4]
In July 1981 the plaintiff and his wife, Nora McCabe, resided at
13 Linden Street ,
Belfast
. Travelling along the Falls Road
in the direction of the
Springfield Road ,
Linden
Street is the next street to the right after
Clonard Street
. In the early hours of the morning
of
8 July 1981 Joseph McDonnell, a Republican prisoner held at Her
Majesty’s Prison Maze, died after a prolonged period of hunger strike. As the news of his death spread a
degree of civil unrest developed in the general vicinity of the Falls Road. Over time this seems to have
extended from civilians rattling dustbin lids and blowing whistles to encompass
the commandeering of vehicles for use as barricades across the mouth of side
streets, some of which were set on fire, and the throwing of various types of
missiles at security force patrols.
[5]
Shortly before
7.00 am a patrol of two landrover vehicles manned by officers in the
Royal Ulster Constabulary (“RUC”) was proceeding along the Falls Road in a
country wards direction. During the
course of the patrol the lead vehicle deviated towards the right hand side of
the road and stopped in the vicinity of the mouths of
Clonard Street
and
Linden Street
. A single plastic baton round was
fired from the off-side of that vehicle.
[6]
Mrs McCabe and a friend had walked down
Linden Street
towards the Falls Road where they joined a number of other women who were saying
a rosary for Joseph McDonnell. Mrs
McCabe was struck by the plastic baton round discharged from the off-side of the
lead police landrover as a consequence of which she sustained a comminuted
fracture of the left side of her skull causing laceration and severe bruising of
her brain. As a result of the
injury that she sustained she died at the
Royal
Victoria
Hospital
on
9 July 1981 . An inquest
was subsequently held in relation to the circumstances of the death and, in the
course of delivering its verdict, the jury appear to have recorded that:
“At the mouth of
Linden Street
the leading vehicle in the patrol turned sharply to the right and stopped
briefly, at which time a plastic baton round was discharged from an off-side
porthole. There is no clear
evidence to suggest that there was a legitimate target to be fired at in that
street. Neither is there evidence
to suggest that the deceased was other than an innocent party.”
[7]
The applicant subsequently issued civil proceedings claiming compensation
in respect of the death of his wife and in November 1984 those proceedings were
settled on behalf of the respondent.
In a statement read to the court at that time counsel on behalf of the
RUC accepted that, at all material times, Mrs Nora McCabe had been “an innocent
passerby”.
The police investigation and inquest
[8]
Each of the two police vehicles was crewed by five officers and the
patrol was under the command of Chief Superintendent Crutchley who travelled as
observer in the lead vehicle.
Statements were obtained from the various police officers and these were
subsequently used as the basis of the depositions made by certain of the
officers who gave evidence at the inquest.
Apart from the Chief Superintendent, the officers were referred to by
alphabetical letters. For the
purposes of this application the salient matters referred to in the police
depositions included the following:
(i)
The Chief Superintendent maintained that, after passing
Leeson Street
on the left, the roadway was “strewn with beer barrels and concrete blocks”. He stated that there was a vehicle
burning at the mouth of
Spinner Street
and that two youths with lit petrol bombs came running from the
Clonard Street
direction. He described how he had
ordered witness A to discharge one baton road at the youths and he was adamant
that no baton rounds had been fired after his vehicle passed
Clonard Street
. He was able to be quite definite
that no baton rounds had been fired into
Linden Street
or at the junction of Falls Road/Linden Street.
(ii)
Inspector F, who was the front seat passenger in the second landrover,
stated that on approaching the junction of
Leeson Street
his vehicle came under heavy attack with petrol bombs and stones. He described vehicles overturned and
on fire across the junctions of
Leeson Street
and
Spinner Street
with the Falls Road. He also
described two youths running out from the mouth of
Clonard Street
and heard a baton round discharge from the off-side of the lead landrover. After the discharge of that round he
said that the youths ran back into
Clonard Street
and the petrol bombs that they had thrown at the lead landrover exploded on the
roadway just in front of that vehicle.
He told the court that at no stage had the lead vehicle turned into
Linden Street
and that it would be a serious error to say that it had done so.
(iii)
Constable C, travelling in the lead vehicle, confirmed that the road was
littered with beer barrels, lumps of bricks and other items of rubbish and
described a group that had come out of
Leeson Street
in front of the vehicle throwing petrol bombs.
He had no doubt that his vehicle was angled towards
Dunville
Park
when the baton round was discharged and maintained that it would have been
impossible to hit anyone at the junction of
Linden Street
. A similar statement was made by
Constable E.
(iv)
In a statement that was tendered to the inquest Sergeant A, who
discharged the baton round that struck Mrs McCabe, confirmed that the road was
littered with beer barrels, concrete blocks and other debris. He described clouds of black smoke
billowing into the area at the mouth
Leeson Street
when his vehicle came under heavy petrol bomb and stone attack. He used the phrase “as the petrol
bombs rained round us”. He said
that he had seen two youths running from the junction of
Clonard Street
towards his vehicle with lit petrol bombs and that he discharged the baton round
in their direction. He did not
think that he had hit either of the youths although he saw one half turn,
stumble and fall before getting up and running back up
Clonard Street
. He was able to state
categorically that no rubber bullets were fired at or into
Linden Street
by any member of the crew of the vehicle in which he was travelling.
[9]
A Mrs Mooney who had been taking part in saying the rosary at the mouth
of
Linden Street
saw the approach of the landrovers and said that the first vehicle made a right
turn into
Linden Street
. She did not hear the landrovers
being attacked or the sound of baton rounds being fired and asserted that there
were “very few people about”. She
agreed that an attack could have been made on the police without her being aware
of it but she had not seen any petrol bombers run out of
Clonard Street
. Mrs McLennan, who had been
staying at the McCabes house overnight, described how she had gone to the mouth
of
Linden Street
with the deceased. She said that a
landrover approached from the direction of
Springfield Road
and drove onto the footpath on the
Linden Street
side of the Falls Road. Both of
these assertions were denied by Mrs Mooney.
She told the police that she had not seen any burning cars and that there
was no hijacking, although there were some youngsters throwing stones at
Spinner Street
. Mrs McLennan did not attend the inquest, despite promising to do so and being
offered transport.
[10] At the
conclusion of the oral and documentary evidence before the coroner the
applicant’s representatives produced a video film taken by two Canadian
cameramen positioned at the junction of
Sevastopol Street
looking in the direction of
Springfield Road
. The film purported to show the
two landrovers travelling along the Falls Road and the lead landrover stopping
with the front of vehicle inclined towards the mouth of Linden Street when a
baton round was discharged from the off-side portal. During the course of the journey of
the vehicles shown on the film there did not appear to be any evidence of beer
barrels, concrete blocks or other obstructions on the surface of the roadway and
no petrol bombs were seen to be thrown.
Upon production of the film the inquest, held in November 1982, was
adjourned to permit the authenticity and provenance of the film footage to be
carried out by Detective Superintendent Entwistle. The film was handed to
Superintendent Nesbitt by the applicant’s solicitor at the office of the DPP on
26 November 1982 .
[11]
Detective Superintendent Entwistle travelled to Royal Canadian Mounted Police
Headquarters in
Montreal
where he interviewed the two Canadians who had made the film and obtained a copy
of the original video cassette. The
makers of the video were not professional journalists one being a teacher and
the other a trained movie camera operator.
The detective superintendent found them to be “honest and
straightforward” during interview, which took place in the presence of their
solicitor, and he confirmed that the cassette that he received had not been out
of the possession of the original cameraman.
The Canadians confirmed that they had been filming from the junction of
Falls Road/Sevastopol Street, approximately 150 yards from
Linden Street
, and that they had been prompted to start filming by the discharge of baton
rounds. Detective Superintendent
Entwistle viewed the cassette that he received from the Canadians and, having
done so, observed that it was longer than the copy previously handed over to the
police by the applicant’s solicitors.
It seems that two deletions had been made from that copy, one relating to
the hijacking and overturning of a motor vehicle and the second to a petrol bomb
burning on the road. No explanation has
been forthcoming as to the circumstances in which either of those deletions came
to be made from the tape originally produced for the police and, unfortunately,
the original is no longer available.
[12] In an
effort to establish the position of the lead vehicle at the time that the
relevant baton round had been discharged Detective Superintendent Entwistle,
with the assistance of Constable Arnott of the Photography Branch of the RUC,
carried out an experiment. Photographs were taken of a police landrover in an
attempt to reproduce the movement of the lead vehicle as it approached the
Clonard Street/Linden Street
junctions. A comparison of the
photographs with the video led the Detective Superintendent to conclude that, at
a point more than 10 yards beyond the zebra crossing the leading landrover had
braked suddenly preparatory to pulling across the Falls Road and that, when the
vehicle stopped on the right hand side of the Falls Road and a puff of smoke was
seen to come from the side of the vehicle, the landrover had reached the
junction of Linden Street. The
Detective Superintendent concluded that the landrover would have been at an
angle of approximately 60 degrees to the footpath a position from which it would
have been possible to discharge a baton round at a person standing at the
junction of either
Clonard Street
or at
Linden Street
. As a result of viewing the full
video the chief superintendent expressed the view that it showed a lesser degree
of street violence than he would have expected from reading the police file and
he noted that the film did not disclose any evidence of burning vehicles or
persons throwing or carrying petrol bombs apart from a petrol bomb burning on
the road at the end of the film. He
formed that view that it was probable that Mrs Nora McCabe had been struck by a
police baton round at the junction of
Linden Street
.
The sequence of DPP decisions
[13] After
consideration of the file and statements submitted by the police as a
consequence of their original investigation, the then DPP had concluded that the
evidence was insufficient to warrant criminal proceedings against any person and
directed no prosecutions on
30 November 1981 . As
indicated above, the inquest subsequently took place which was adjourned when
the existence of the Canadian film was disclosed.
[14] The
report from Detective Superintendent Entwistle, the original video cassette that
he retrieved from
Canada
together with the statements of the two Canadian witnesses were subsequently
furnished to the DPP and made the subject of a report by one of his officers, Mr
Herron, dated April 1983. Mr Herron
described the opening sequences of the film that had been deleted from the
original video furnished to the police in the following terms:
“A group 30-40 youths are seen overturning a van at
Lower Clonard Street
junction. The van when overturned
is sitting slightly back into
Lower Clonard Street
. A white Vauxhall car is seen
coming out of
Lower Clonard Street
and is driven into
Spinner Street
where it is overturned. A large
number of youths are involved in this.
Note – that when the youths overturned this car they move away from it –
as if there is the possibility that it might explode. There is considerable activity in
the area – groups of people can be seen milling about from the city side of
Spinner Street
as far as
Linden Street
and beyond. A Saracen followed by
two police landrovers is seen travelling citywards on the Falls Road and came
under heavy stoning from youths just above
Sevastopol Street
on the countryside.”
After a careful consideration of the evidence of the civilians, Mrs McLennan and
Ms Mooney, the ambulance attendant and the film, Mr Herron formed the opinion
that the baton round that had caused the death of Mrs Nora McCabe had been
discharged by Officer A from the landrover under the command of Chief
Superintendent Crutchley upon the latter’s orders. He accepted that Mrs McCabe had been
an innocent person who had been struck in error by a baton round directed at a
petrol bomber. Mr Herron did not
consider that the evidence was of such a degree as to amount to gross negligence
warranting a prosecution for manslaughter.
The evidence and the reports were subsequently referred to Mr Herron’s
superior officers at the DPP and further consideration was given as to the
question whether the circumstances warranted criminal proceedings in respect of
murder or manslaughter. Ultimately,
the case was reconsidered by the Director in the light of the further evidence
and submissions and, having done so, he reaffirmed the original direction of no
prosecution. Subsequently, the
inquest resumed and Superintendent Entwistle together with another police
officer gave evidence. Statements
from the Canadian cameramen were also read.
[15] After
the inquest ended the reports, statements and other evidence, including the
evidence given at the adjourned inquest hearing, were re-examined by DPP
officers. In December 1984 the
Director confirmed his opinion that the Crown could not rebut beyond a
reasonable doubt the presence or existence of two petrol bombers in
Clonard Street
. In such circumstances the
Director’s view remained that Chief Superintendent Crutchley could not be
prosecuted for any offence. In his
view while manslaughter had to be considered in relation to witness A in the
context of what had occurred on the left hand side of the road shortly before
the relevant discharge he did not consider that a court would find gross
negligence on the part of that officer.
The correspondence
[16] On
28 May 1985 the applicant’s solicitors wrote to the DPP requesting
him to reconsider the papers with a view to prosecution or referral of the
papers to senior counsel or to co-operate with a private prosecution of the
police officers concerned. On
24 June 1985 the respondent replied declining to comply with such a
request on the basis that full and proper consideration had already been given
to the available evidence. The same letter confirmed that in the event of any
further evidence or additional information being drawn to the attention of the
respondent the matter would receive further consideration. The solicitors exchanged similar
correspondence with the Chief Constable of the RUC in June and July of 1985. On
21 June 2001 , some 16 years after the initial letter, the solicitors
wrote to the respondent referring to a number of decisions of the European Court
of Human Rights and they requested an Article 2 compliant effective
investigation into the death of Mrs McCabe.
The respondent replied on
31 January 2002 pointing out that, in order to give the request
proper consideration, it had been necessary to make a number of enquiries as
well as seeking the advice of senior counsel and holding a number of
consultations. The respondent
expressed the view that the judgments to which he had been referred did not give
rise to the rights asserted on behalf of the applicant subject to the formal
response of the UK Government to the Committee of Ministers of the Council of
Europe being finalised.
[17] On
5 September 2007 , some 22 years after the initial letter, the
applicant’s solicitors wrote to the Public Prosecutions Service (“PPS”), the
successor to the DPP, requesting reasons for the decision not to prosecute any
individual arising out of the death of Mrs McCabe. The PPS replied to that letter on
1 February 2008 apologising for the delay and pointing out that
extensive searches had been required in the course of attempting to locate the
original documentation. Mr Kitson,
Senior Assistant Director in the PPS, provided a synopsis of the history of the
matter including the reconsideration of the evidence after the disclosure of the
existence of the film. He set out
the police case in brief and concluded his letter in the following terms:
“It was concluded that it would not have been possible to rebut beyond a
reasonable doubt these assertions by the police that there were two petrol
bombers in
Clonard Street
.
It was further concluded that on the available evidence a court could not be
satisfied beyond reasonable doubt that the police officer fired at Mrs Nora
McCabe in
Linden Street
(rather than petrol bombers) with the intention of killing her or causing
serious injury to her. Accordingly,
it was considered that there was no reasonable prospect of conviction of any
police officer arising from the death of Mrs McCabe.”
Further correspondence was exchanged between the applicant’s solicitors and Mr
Kitson culminating with a response from the latter dated
30 September 2008 .
These proceedings were instituted by ex parte application on
24 October 2008 .
The relevant legal framework
[18] The
office of Director of Public Prosecutions was constituted by the Prosecution of
Offences (
Northern Ireland
) Order 1972, Article 5(1) of which defined the functions of that office. By Article 5(1)(a) the Director was to consider or
cause to be considered, with a view to his initiating or continuing in Northern
Ireland any criminal proceedings, any facts or information brought to his
notice, whether by the Chief Constable of the RUC or by the Attorney General or
by any other authority or person.
By Article 5(1)(c) the Director was
empowered, where he thought it is proper to do so, to initiate, undertake and
carry on behalf of the Crown proceedings for indictable offences and some
summary offences. The Director was
a public official appointed by the Attorney General for
Northern Ireland
as the head of an independent, professional service entrusted by Parliament with
discretionary powers to investigate and prosecute offences.
[19] It is
clear that, in appropriate cases, the court does have power to review decisions
of the Director. In Re Adams
Application for Judicial Review [2001] NI 1, at page 12, Carswell LCJ
described the grounds of challenge upon the basis of which judicial review could
be mounted thus:
(i)
The decision was tainted by the DPP applying an unlawful policy.
(ii)
The decision was tainted as a result of the DPP failing to act in
accordance with its own settled policy.
(iii)
The decision was tainted on grounds of perversity.
(iv)
The decision was infected by an improper motive.
(v)
The decision was made in bad faith.
[20] In
Sharma v Antoine and Others [2006] UKPC 57 Lord Bingham dealt with the
matter in the following terms at paragraph [14] of his judgment:
“The courts have given a number of reasons for their extreme reluctance to
disturb decisions to prosecute by way of judicial review. They include:
(i)
‘The great width of the DPP’s discretion and the polycentric character of
official decision-making in such matters including policy and public interest
considerations which are not susceptible of judicial review because it is within
neither the constitutional function nor the practical competence of the courts
to assess their merits (Matalulu, above page 735, cited in Mohit,
above, para 17);
(ii)
‘The wide range of factors relating to available evidence, the public
interest and perhaps other matters which [the prosecutor] may properly take into
account’ (counsel’s argument in Mohit, above, para 18, accepting that the
threshold of a successful challenge is ‘a high one’)…
(v)
The blurring of the executive function of the prosecutor and the judicial
function of the court, and of the distinct roles of the criminal and civil
courts; Director of Public Prosecutions v Humphries [1977] AC 1, 24, 26,
46, 53; Imperial Tobacco Limited v Attorney-General [1981] AC 718, 733,
742; R v Power[1994] 1 SCR 601, 621-623; Kostuch v Attorney General of
Alberta, above, pp. 449-450; Pretty, above, para 121.”
[21] The
threshold for review of decisions not to prosecute may be somewhat lower than
that set for decisions to prosecute and, in that context, the remarks of Lord
Bingham CJ in R v Director of Public Prosecutions, ex parte Manning
[2001] QB330 at paragraph 23 are apposite:
“In most cases the decision will turn not on an analysis of the relevant legal
principles but on the exercise of an informed judgment of how a case against a
particular defendant, if brought, would be likely to be fair in the context of a
criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves
an assessment of the strength, by the end of the trial, of the evidence against
the defendant and of the likely defences.
It will often be impossible to stigmatise a judgment on such matters as
wrong even if one disagrees with it.
So the courts will not easily find that a decision not to prosecute is
bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of
review should not be set too high, since judicial review is the only means by
which the citizen can seek redress against a decision not to prosecute and if
the test were too exacting an effective remedy would be denied.”
Such an approach was accepted as correct by the Privy Council in Mohit v
Director of Public Prosecutions of
Mauritius
[2006] UKPC 20. Similar principles
have been endorsed in this jurisdiction by Weatherup J in Hamill’s
Application [2008] NIQB 73 and Kerr LCJ in the
Divisional Court
decision of Re Lawrence Kincaid [2007] NIQB 26.
The relevant decisions
The 1983 decision
[22] This
was the decision reached by the Deputy Director of Public Prosecutions on
10 June 1983 not to prosecute witness A or Chief Superintendent
Crutchley. That decision had been
reached after a reconsideration of the police investigation by ACC Whiteside
assisted by the oral evidence of the police witnesses at the inquest, the video
film and the report on the provenance of the film together with its impact upon
the investigation carried out by Detective Superintendent Entwistle. All of those materials had
subsequently been considered by Mr Herron, the relevant officer in the DPP, and
made the subject of his report to Mr Fraser of
1 April 1983 . It is
clear from the report submitted by Mr Herron and the subsequent report from Mr
Fraser dated
11 April 1983 that consideration was given to the offences of both
murder and manslaughter.
[23]
Throughout the relevant period, although at times slightly differently phrased,
the test adopted initially, by the DPP and, later, by the PPS for determining
whether or not to issue a direction to prosecute has been that such a direction
will only issue if:-
(i)
the evidence which can be adduced in court is sufficient to provide a
reasonable prospect of conviction – the “Evidential Test”;
(ii)
prosecution is required in the public interest – the “Public Interest
Test”.
Each aspect of the test must be separately considered and the evidential test
must be passed before consideration is given to the public interest test. It is clear that Mr Herron, the
professional officer in the DPP who compiled the report of
1 April 1983 , had access not only to the relevant documents but also
to the full video tape taken by the Canadian cameraman.
[24] There
can be no reasonable doubt that Mrs McCabe was killed as a result of being
struck by the baton round discharged by witness A on the orders of Chief
Superintendent Crutchley. However,
in order to comply with the evidential test it would have been necessary for the
DPP to conclude that the evidence to be adduced in court was sufficient to
provide a reasonable prospect of establishing that:-
(i)
The baton round had been discharged with the intention to kill or inflict
grievous bodily harm.
Alternatively, if the offence of manslaughter was under consideration, it would
have been necessary to conclude that the evidence was sufficient to provide a
reasonable prospect of establishing that the discharge, in the circumstances,
had constituted an unlawful and dangerous act or gross negligence. In R v Bateman [1925] 19
Criminal Appeal Reports 8 Lord Hewart LCJ dealt with the concept of gross
negligence in the following terms:
“In explaining to juries the test which they should apply to determine whether
the negligence in the particular case amounted or did not amount to a crime,
judges have used many epithets such as ‘culpable’, ‘criminal’, ‘gross’,
‘wicked’, ‘clear’, ‘complete’. But
whichever epithet be used and whether an epithet be used or not, in order to
establish criminal liability the facts must be such that in the opinion of the
jury the negligence of the accused went beyond a mere matter of compensation
between subjects and showed such disregard for the life and safety of others as
to amount to a crime against the State and conduct deserving of punishment.”
[25] The
salient points of evidence considered by the DPP in the cumulative process of
reaching the ultimate decision not to prosecute in June of 1983 may be
summarised as follows:
(a)
It would not have been possible to mount a prosecution for either murder
or manslaughter without relying upon the evidence of the civilian witness, Mrs
Mooney. Mrs Mooney maintained that
the general area of the Falls Road was quiet, that the traffic was flowing
normally and that there were very few people about. She said that she had not seen the
landrovers coming under attack as they came up the Falls Road and that she would
have heard baton rounds if they had been discharged at the mouth of Leeson
Street, although she added that the police might have been attacked without her
being aware of it. She did not see
a petrol bomber run out of
Clonard Street
and she maintained that the two front wheels of the leading police landrover had
been in
Linden Street
prior to the discharge of the baton round.
(b)
The complete video taken by the Canadian cameraman clearly illustrates,
contrary to the evidence of Mrs Mooney, a considerable degree of public of
disorder in the area shortly before the discharge of the relevant baton round
including, for example, 30-40 youths overturning a van at the Lower Clonard
Street junction, the Vauxhall car driven out of Lower Clonard Street and
overturned at the mouth of Spinner Street, the stoning of the landrovers
travelling citywards on the Falls Road, the discharge of baton rounds by the
landrovers proceeding countrywards as they passed Spinner Street and Lower
Clonard Street and the position of the lead landrover when the baton round was
discharged.
(c)
While the film clearly supports some parts of the statements and
depositions made by the police officers, it also clearly contradicts those parts
of their evidence that describe the vehicles coming under attack by large
numbers of petrol bombs, the presence of burning vehicles and the obstruction of
the road with large numbers of obstacles.
(d)
Shortly before the discharge of the fatal baton round, the lead landrover
is seen on the film to suddenly stop with the front inclined towards the
junctions of
Linden Street/Clonard Street
. This sudden alteration of the progress of the vehicle must have been in
response to some significant observation or event. Detective Superintendent
Entwistle’s careful reconstruction of the scene convinced him that, at the time
when the fatal baton round was discharged, the lead vehicle had reached the
junction with Linden Street where it braked quite suddenly, pulled to the right
hand side of the road and stopped at an angle of approximately 60 degrees to the
footpath. In his opinion it would
certainly have been possible from that position to discharge a baton round at a
person standing at
Clonard Street
and it would also have been possible to fire at a person standing at the
junction of
Linden Street
. He considered that the position
in which the landrover stopped would have presented an advantage to a member of
the crew discharging a baton round towards the mouth of
Clonard Street
but such an angle would have been much less desirable if the intention had been
to fire into
Linden Street
. The Canadian cameraman and his
associate did not see any petrol bombs being thrown at the police. Their initial filming had taken
place some 150 yards from
Linden Street
. After the discharge of the final
baton round they had walked up the Falls Road and were informed that a woman was
lying injured further along the road.
They did not shoot any film on the walk between
Sevastopol Street
and
Linden Street
, apart from some ten seconds as they crossed the zebra crossing at
Clonard Street
, but after their arrival at
Linden Street
filming was almost continuous until the departure of the ambulance. At that point, towards the end of
the film a petrol bomb is shown burning on the Falls Road.
[26]
Subsequent to the direction not to prosecute issued on
15 June 1983 the inquest was duly completed. It is to be noted that, after the
completion of the inquest, the matter was further reviewed by the DPP taking
into account all of the evidence given before the coroner and the jury,
including the film and the statements made by the cameraman, together with the
verdict. Mr Fraser, then a senior
officer in the Department concluded on
11 December 1984 that it would not be possible to rebut beyond a
reasonable doubt the presence of two petrol bombers at
Clonard Street
. In such circumstances it was not
felt that there was a reasonable possibility of sustaining a charge of murder or
manslaughter. On the basis of all
of the evidence then available, the investigations that had taken place and the
reports and analysis to which the relevant matters had been subjected we have
concluded that was a decision that was open to the DPP and not one that could be
condemned as being irrational in the Wednesbury sense, irrationality being the
only one of the grounds identified in Adams relevant to the circumstances
of this particular case.
The 2008 decision
[27] The
Order 53 statement also seeks an order of certiorari to quash “… the decision of
the PPS, communicated to the applicant on 30 September 2008, not to prosecute
any individual for murder or manslaughter arising out of the circumstances of
the death of Mrs Nora McCabe on 9 July 1981” together with associated relief. This aspect of the application is
grounded upon correspondence between the appellant’s solicitors and the PPS
seeking further information as to the reasons for failing to issue relevant
directions to prosecute.
[28] On
5 September 2007 , more than twelve years after the cessation of
earlier correspondence on the matter, the applicant’s solicitors wrote to the
PPS requesting reasons to be given for the decisions not to prosecute any
individual arising out of the death of Mrs McCabe. The PPS replied on
1 February 2008 providing details of the investigation and decisions. On
14 April 2008 , after pointing out that the letter of 1 February had
contained the first explanation for the failure to commence prosecutions, the
solicitors made further requests for information which were dealt with in a
reply from the PPS dated
7 July 2008 . On 8
August the applicant’s solicitors wrote seeking access to the full original DPP
file together with further answers to a number of questions. The PPS replied on
30 September 2008 and, in the course of that letter the author, Mr
Kitson, wrote as follows:
“I have considered the matters you raise in your commentary on the information I
have provided as to why there was no prosecution. I have looked at the copy DVD of the
‘First Tuesday’ programme you have forwarded with your letter.
I have considered the relevant internal minutes and memoranda contained in the
DPP file which set out processes of consideration (in the three stages referred
to above) of the evidence and information available in reaching the decisions as
to prosecution. In particular I
have considered the internal memoranda relating to consideration of the film
evidence and the evidence of the inquest.
The matters raised in your commentary were considered.
I can detect no error of law; no failure to take into account relevant
considerations; no evidence of taking into account irrelevant factors and no
indication of bad faith or other improper motive in the process of consideration
of this case. I do not agree that
the conclusion reached [that on the available evidence a court could not be
satisfied beyond reasonable doubt that the police officer fired at Mrs Nora
McCabe in
Linden Street
(rather than at petrol bombers) with the intention of killing her or causing
serious injury to her] does not withstand scrutiny.”
[29] In the
course of his affidavit sworn herein on 1 May 2009 Mr Kitson emphasised that
during the correspondence between September 2007 and September 2008 his role, at
all material times, was simply to respond to the correspondence from the
applicant’s solicitors and, in doing so, to provide information sought and
related commentary. In the amended
Order 53 statement it is asserted that, in 2008, the PPS “reconsidered” the
decision taken in 1983 but such an exercise upon his part is firmly denied by Mr
Kitson. After carefully considering
the relevant correspondence and the submissions of counsel we are not persuaded
that any further “re-consideration” of the original 1983 decision took place in
2008 and, accordingly, we reject that ground of the applicant’s case.
The alleged failure to consider and
direct prosecutions for perjury, perverting the course of justice or conspiracy
to pervert the course of justice
[30] Article
3(1) of the Perjury (
Northern Ireland
) Order 1979 provides that:
“3(1) Any person
lawfully sworn as a witness … in a judicial proceeding who wilfully makes a
statement material to that proceeding, which he knows to be false, or does not
believe to be true, shall be guilty of perjury …”.
Knowingly seeking to prevent true evidence from being given or agreeing to
provide false evidence could potentially constitute the crime of perverting the
course of justice or conspiracy to do so.
[31] In
support of this ground of the application the applicant has concentrated upon
the differences between the statements and depositions of the police witnesses
and the events as shown in the edited video.
We have read the relevant documents, viewed the edited video and had the
benefit of the submissions of counsel.
The most significant of those differences appear to be as follows:
(i)
Contrary to the police evidence burning vehicles were not present at the
mouth of either
Leeson Street
or
Spinner Street
. It would appear from the unedited
version of the film that there were barricades at the mouth of both streets,
that in
Leeson Street
being comprised of rubble while a vehicle had been earlier overturned at the
mouth of
Spinner Street
. It also seems that the unedited
film showed the presence of a large number of people present in the area prior
to the arrival of the landrovers most of whom retired into the side streets and,
presumably, behind the barricades.
(ii)
Contrary to the assertions by Chief Superintendent Crutchley, Officer C
and Officer E, the edited video does not show the relevant section of road to
have been littered with beer barrels, rubble, or lumps of bricks.
(iii)
Inspector F, Chief Superintendent Crutchley, Officer C and Officer E all
described the vehicles coming under attack by petrol bombs as they passed the
mouths of Leeson Street and Spinner Street. In the course of his written
statement, as noted earlier in this judgment, Officer A referred to heavy petrol
bomb and stone attacks at the junction of
Leeson Street
and described how the petrol bombs “rained round us”. The edited video film does not show
the impact of any petrol bombs whether against the vehicles or on the roadway.
(iv)
Inspector F described two youths, both of whom were holding petrol bombs,
“running out from” the mouth of
Clonard Street
on the right of his vehicle. After
the discharge of a baton round he stated that the youths “ran back” into
Clonard Street
and the petrol bombs exploded on the roadway in front of the vehicle. Chief Superintendent Crutchley also
described two youths with petrol bombs “running from the
Clonard Street
direction”. In his statement read
to the Coroner’s Court witness A described two youths at the junction of
Clonard Street
each of whom had a petrol bomb who were “running towards us with them lit”. It is not possible to discern from
the edited video anyone running from the mouth of Clonard Street onto the main
road with petrol bombs but it is also important to note that location was
approximately some 150 yards from the point of filming which makes it very
difficult to ascertain any activity in detail taking place at the mouth of
Clonard Street.
[32] No
direction was ever issued to prosecute or not to prosecute any individual for an
offence of perjury, perverting the course of justice or conspiracy to pervert
the course of justice and there is nothing to indicate in the various reports,
memoranda and recommendations produced by the police, DPP or PPS that the
possibility of prosecutions for any such offences were ever considered. The potential basis for prosecutions
for such offences substantially arose after the discovery of the video film. There is no doubt that a number of
DPP/PPS officers were aware of significant factual conflicts between a number of
police officers and the events depicted on the film. Of these conflicts the
evidence relating to petrol bombs and petrol bombers was of particular
significance in view of the purported justification for the discharge of the
fatal baton round. In his original
report of
1 April 1983 Mr Herron recorded that:
“On the issue of the existence of petrol bombs no lit petrol bombs were obvious
from the film. But in the film the
sound of breaking glass was noted from the time the landrovers past the junction
of
Spinner Street
.”
He later concluded that this did “… suggest that the least the throwing of
bottles.” In his own report of
11 April 1983 Mr Fraser also qualified the absence of petrol bombs by
noting that the film recorded the sound of breaking glass as the landrovers past
the junction of
Spinner Street
. When the Deputy Director
formulated his memorandum of
10 June 1983 he noted that one of the important and relevant issues
in respect of which the film confirmed the evidence of the police was that “the
sound of breaking glass indicating petrol bombs”. However in his final memorandum
dated
16 December 1984 , compiled after the completion of the inquest, Mr
Herron expressed himself to be reasonably satisfied, inter alia, that:
“Apart from what seems to be a petrol bomb burning on the roadway convenient to
Linden Street
after the ambulance left there is no evidence in the film of the throwing of
petrol bombs.”
[33] Having
reviewed the documents in the context of the film and the submissions of counsel
we are persuaded that consideration ought to have been given by the DPP/PPS
officers to the offence of perjury.
The conflict between the evidence of the officers and the film, particularly
with regard to the graphic terms used by the relevant officers in relation to
the alleged throwing of substantial numbers of petrol bombs, and, possibly to a
lesser extent, the extensive and multiple obstructions said to have been present
on the road is of significance. In
the skeleton argument the respondent points out that the police investigation
into the death of Mrs McCabe did not commence until the day after the incident
and some time elapsed before the individual officers were interviewed. In such circumstances it is
submitted that it would not have been easy for them to have isolated this
particular trip along the Falls Road.
The respondent also refers to the absence of any recommendation for
prosecution for perjury on the part of the coroner at the conclusion of the
inquest. These may well have been
relevant factors that should have been considered in the course of reaching an
appropriate decision but do not constitute a justification for not initiating
the decision making process. In
practical terms it might have been easier to mount a prosecution against the
relevant officers for this type of offence insofar as a straight conflict could
be demonstrated between their statements and depositions and the film taken by
the Canadian cameraman.
Delay
[34] The
terms of Order 53 Rule 4 are clear and specific:
“4.-(1) An application for leave to apply
for judicial review shall be made promptly and in any event within three months
from the date when grounds for the application first arose unless the Court
considers that there is good reason for extending the period within which the
application shall be made.”
A number of authorities have emphasised how important it is for an applicant to
act “promptly” and that doing so does not mean that there is a general three
month time limit – see Re Shearer’s Application [1993] 2 NIJB 12 at 27;
Re McCabe’s Application[1994] NIJB 27 at 28a; and Re Zhanje’s Application
[2007] NIQB 14 at para. 7.
[35] The
original decision not to prosecute any person in relation to the death of Mrs
Nora McCabe was confirmed by the Deputy Director of the DPP on
10 June 1983 . The ex
parte application for leave to apply for judicial review was not made until
24 October 2008 , some 25 years later. Even if the decision not to
prosecute taken on
11 December 1984 , after the completion of the inquest, is considered
the gap is close to 24 years. The
initial letter written on behalf of the applicant complaining about the failure
to initiate criminal prosecutions was dated
28 May 1985 . The
response from the DPP dated
24 June 1985 confirmed that no further action was to be taken in the
absence of additional evidence or information.
Nothing further seems to have occurred until the letter from the
applicant’s solicitor of
21 June 2001 . That letter made no reference to earlier
correspondence but sought reasons for the direction not to prosecute, access to
investigation and prosecution files and information as to any steps intended to
ensure that the applicant received an Article 2 compliant effective
investigation into the death of his wife.
The DPP replied by letter dated
31 January 2002 declining these requests. A further period of more than 5½
years had expired before the next letter from the applicant’s solicitors dated
5 September 2007 . Again
without referring to any previous correspondence, that letter sought reasons for
the decisions not to prosecute any individual arising out of the death of Nora
McCabe. The PPS replied on
1 February 2008 and further correspondence was exchanged before the
ex parte application for leave on 24 October of that year.
[36] No
explanation, adequate or otherwise, has been advanced for this virtually
unprecedented delay on the part of the applicant’s advisers. We are unable to ascertain any
satisfactory reason as to why judicial review proceedings were not initiated
within three months of November 1984 or, at the latest, in response to the DPP
refusal contained in the letter of
24 June 1985 . At any
stage thereafter such proceedings could and should have been initiated. The practical effect of such delay
is obvious in that, even if the applicant had succeeded in persuading the
DPP/PPS to reconsider its decision and prosecute Chief Superintendent Crutchley
and/or Sergeant A any such action has been rendered impossible by the subsequent
death of both individuals. Mr
Macdonald sought to persuade the court to extend the relevant time on the basis
of the exceptional circumstances of this case including the verdict of the jury,
the fact that the death had been caused by an agency of the State, the
allegations of a “cover up” and the failure of the DPP to deal with such a
situation. He also reminded the
court that the failure to consider perjury and/or perverting the course of
justice was a continuing obligation.
[37] It is
not difficult to have sympathy for the applicant whose sense of powerlessness
and frustration are eloquently articulated at paragraph 11 of his affidavit:
“11. The fact that
no one has ever been made amenable for my wife’s death or for the evidence given
before the inquest touching her death has been a source of bewilderment to me
and my family in light of the evidence that was available. Over the years it has been the cause
of much distress and anguish to us and has affected our lives greatly.”
However, this court must act fairly and impartially and it has to be recorded
that any legal remedy by way of judicial review that might have assisted in
helping the applicant to come to terms with his loss could and should have been
initiated many years ago. In
In Re Marie Louise Thompson [2004] NIQB 62 and in Re Julie Doherty
[2004] NIQB 78 Girvan J considered similar types of the cases involving deaths
attributed to the security forces and subsequent directions by the DPP not to
initiate prosecutions. In one case
proceedings were initiated after a period of 18 years and in the other some 30
years had expired. No good reason
for the delay was forthcoming and he concluded that it was neither fair nor
reasonable that the integrity and competence of the original decision-makers
should be open to attack so many years after the relevant event. We respectfully agree. While the failure to consider
potential charges of perjury and/or perverting the course of justice may be seen
as a continuing obligation we would be prepared to exercise our discretion to
refuse relief in respect of such a failure on the basis that any positive
decision to prosecute at this stage could only be regarded as unfair and wholly
disproportionate and would inevitably be the subject of successful abuse of
process applications. In the
circumstances, we must refuse the applications.
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