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You are here: BAILII >> Databases >> Northern Irish Courts - Miscellaneous >> Jordan, Re Inquest into the death of [2016] NICoroner 1 (7 November 2016) URL: http://www.bailii.org/nie/cases/Misc/2016/NICoroner_1.html Cite as: [2016] NICoroner 1 |
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| [2016] NICoroner 1 | Ref: | HOR9938FULL |
| Judgment: approved by the Court for handing down | Delivered: | 7/11/2016 |
| (subject to editorial corrections)* |
HORNER J
| Paras | |
| A. INTRODUCTION | 1-8 |
| B. GLOSSARY OF TERMS AND ACRONYMS | 9 |
| C. BACKGROUND INFORMATION | 10-51 |
| D. ONUS AND STANDARD OF PROOF | 52-62 |
| E. LEGACY INQUESTS | 63-68 |
| F. PREVAILING CONDITIONS IN NORTHERN IRELAND 1992 AND 1993 | 69-75 |
| G. DELAY AND MEMORY | 76-79 |
| H. CREDIBILITY | 80-88 |
| I. ANONYMITY AND SCREENING APPLICATIONS | 89-136 |
| J. HMSU AND TASKING AND CO-ORDINATING GROUP | 137-141 |
| K. POLICE LOGS, PRESS REPORTS AND DISCLOSURE | 142-157 |
| L. THE ORION, ARIZONA STREET AND THE DECEASED | 158-163 |
| M. THE DEBRIEF | 164-172 |
| N. ARTICLE 2 – SELF-DEFENCE | 173-192 |
| O. REPRESENTATIONS MADE ON BEHALF OF THE | |
| NEXT OF KIN | 193-196 |
| P. REPRESENTATIONS MADE ON BEHALF OF THE PSNI | 197 |
| Q. THE EVIDENCE | 198-303 |
| (i) The Police Evidence | Police Evidence |
| (ii) The Civilian Evidence | Civilian Evidence |
| (iii) Expert Evidence | Expert Evidence |
| R. STALKER SAMPSON REPORTS AND THE POLICE OMBUDSMAN'S REPORT | 304-317 |
| S. DISCUSSION AND FINDINGS | 318-329 |
| T. FINDINGS ON KEY ISSUES | 330-333 |
| U. CONCLUSION | 334 |
| V. RECOMMENDATIONS | 335 |
| W. FURTHER THOUGHTS | 336-337 |
HORNER J
A. INTRODUCTION
"The conduct of inquests into contentious deaths occurring during Northern Ireland's troubled times and the seemingly endless satellite litigation generated in relation to them call to mind aspects of Jarndyce v Jarndyce which Dickens so graphically described in his novel. When questions arising in the inquest into the death of the Deceased Patrick Pearse Jordan (who died as long ago as November 1992) were before the House of Lords in 2007 the inquest, which had opened in January 1995, was described by Lord Bingham as lamentably delayed. A further five years have elapsed. There appears to have been a large number of judicial review applications generated in the proceedings. There have been on-going delays in the furnishing of material and interminable interlocutory disputes in relation to the proposed conduct of the inquest. Delay in any inquest may well lead to the unavailability of witnesses and inevitably will lead to the actual or claimed fading of witnesses' memories in relation to significant facts. Huge quantities of documents have been generated in the course of procedural wrangles in these cases quite apart from the investigation of substantive issues. Enormous amounts of public funds have been spent in the pursuit of issues subsidiary to the central questions to be determined in the inquests. Coroners have been frustrated in their attempts to get the inquests up and running. Ironically the pursuit of procedural correctness in such inquests by parties intent on ensuring that they are compliant with Article 2 requirements has resulted in delays which themselves undermine the very object which the satellite litigation has sought to achieve. Sometimes, as Voltaire said, the best can be the enemy of the good."
Delay, the enemy of justice, has been an inevitable consequence of all these proceedings. Furthermore the costs of this litigation have grown exponentially. As Girvan LJ said paragraph [29]:
"In publicly funded litigation such as the present the ready availability of public funding sets no monetary limit to the litigation."
In Jarndyce v Jarndyce it was the fact that the legal costs had eaten up the entire estate which brought the proceedings to an end. Resources are finite and the public funding of seemingly endless litigation is likely to deny other worthy causes financial support that they sorely need.
"The proceedings and evidence of an inquest shall be directed solely to ascertaining the following matters, namely:-
(a) who the deceased was;
(b) how, when and where the deceased came by [his] death;
(c) … The particulars for the time being required by the Births and Deaths Registration (Northern Ireland) Order 1976 to be registered concerning the death."
Rule 16 goes on to provide that:
"Neither the Coroner nor the jury shall express any opinion on questions of civil or criminal liability or on any matter other than those referred to in the last foregoing Rule."
"[46] In relation to the shooting of the Deceased those matters [factual questions arising for consideration] were as follows:
(a) why Sergeant A had a round in the breech before he got out of his car;
(b) whether Sergeant A shouted "police, halt" before he fired;
(c) whether Sergeant A issued any warning that he was going to fire;
(d) whether the Deceased did anything that, as a matter of objective fact, posed a threat to Sergeant A or any other police officer;
(e) whether Sergeant A's view of the Deceased's hands was obstructed;
(f) whether the Deceased turned around to face towards Sergeant A;
(g) whether the Deceased was facing Sergeant A when Sergeant A fired at him;
(h) whether Sergeant A honestly believed that the Deceased did anything that posed a threat to him or any other police officer;
(i) whether Sergeant A selected automatic fire rather than single shot deliberately or accidentally;
(j) whether Sergeant A was justified in firing in breach of the RUC Code of Conduct governing the discharge of firearms;
(k) whether Sergeant A could have taken another course of action, such as using the protection of his armoured vehicle as an alternative to firing at the Deceased.
[47] In relation to the debrief those factual issues were:-
(a) whether it was appropriate to conduct a debrief prior to the interviewing of witnesses by CID;
(b) whether the primary purpose of the debrief was to facilitate the exoneration of Sergeant A;
[48] In relation to planning and control those factual issues were:-
(a) whether there was a clear line of command within the operations room;
(b) whether the TCG [that is the Tasking and Co-ordinating Group] exercised any or any adequate control and supervision over the conduct of officers on the ground;
(c) whether TCG officers or Officer M gave any advice, guidance or directions to the police officers on the ground in relation to stopping the car and the importance or otherwise of stopping the driver;
(d) whether the decision to stop the vehicle by way of a casual stop, as opposed to a vehicle check point, and the absence of any clear direction as to what should happen in the event that the driver ran away caused or contributed to the death of the Deceased; and
(e) whether, therefore, the planning and control of the police operation was such as to minimise recourse to lethal force."
It is intended to address all these issues so far as it is possible in the course of this judgment.
B. GLOSSARY OF TERMS AND ACRONYMS
A.C.P.O. Association of Chief Police Officers.
A.S.U. Active Service Unit. Term used to describe a group or members of a group engaged in terrorist activity.
Army Liaison An Army Officer (normally of the rank of Major) who acts as a liaison officer within the Tasking and Co-Ordinating Group (TCG). Liaises with all army agencies and with officers in charge of TCG.
C.I.D. Criminal Investigation Department. Part of the Police Force. Dealt with investigations into crimes of particular seriousness.
C.S.I. Crime Scene Investigation. Officers/Police staff who make scientific examinations of crime scenes. See also 'S.O.C.O.' below.
Call Sign Name used to describe a particular vehicle containing Police Officers deployed on operations. Would also be given a number e.g. "Call Sign 8".
D.P.P. Director of Public Prosecutions. Senior Government law officer whose functions and responsibilities are established by statute (then the Prosecution of Offences (Northern Ireland) Order 1972).
ECHR European Convention on Human Rights.
ECtHR European Court of Human Rights.
'E' Department See Special Branch (below). H.M.S.U. Headquarters Mobile Support Unit. Units (comprising police officers) that were available for rapid deployment on operations. Had a wide range of functions including the prevention and detection of terrorist crime, serious crime and road traffic offences. Provided support for specialist surveillance teams. Normally deployed in uniform. Officers in H.M.S.U. tended to be highly trained.
P.I.R.A. Provisional IRA/Irish Republican Army. Terrorist organisation dedicated at that time to the overthrow of NI state by violence.
P.O.N.I. Police Ombudsman for Northern Ireland. Independent appointed official who has responsibility for investigating the activities of the Police. Came into existence in November 2000.
P.S.N.I. Police Service for Northern Ireland, previously known as the R.U.C. until November 2001
R.U.C. Royal Ulster Constabulary. Police force for Northern Ireland at the material time. Became the PSNI in November 2001.
S.O.C.O. Scenes of Crime Officer. Officer who makes scientific examinations of crime scenes. See also 'C.S.I.' above.
Special Branch Specialist police department. Also known as 'E' Department. Gathered intelligence on terrorism and serious crime. Liaised with other police and army agencies.
Stalker Sampson Term used to describe extensive investigations into the R.U.C. carried out by two Senior Police Officers from Forces in England, namely John Stalker and Colin Sampson. The investigations focused on three different fatal shooting incidents involving the police within a six week period in late 1982.
T.C.G. Tasking and Co-Ordinating Group. A group to promote efficient working and liaison between the Army and Police. Consisted of both Army and Police staff. Processed and shared intelligence from the various areas of Northern Ireland and co-ordinated operations.
V.C.P. Vehicle Check Point. The formal stopping of a vehicle or vehicles by either Police Officers or Army personnel. Powers to stop vehicles contained in statute.
C. BACKGROUND INFORMATION
| Witnesses | Summary of the role of each witness |
| Sergeant A |
Shot and killed the Deceased. Was the front seat passenger in Call Sign 8. The most senior officer in Call Signs 8 and 12 and in charge of those 2 vehicles 'on the ground'. |
| Officer B | Rear seat passenger in Call Sign 8. |
| Officer C |
Driver of Call Sign 8. Call Sign 8 forced the Orion driven by the Deceased off the road prior to the shooting. |
| Officer D |
Front seat passenger in Call Sign 12. After the shooting drove Call Sign 12 away from the scene prior to the arrival of the CID. |
| Officer E |
Driver of Call Sign 12. Call Sign 12 was behind Call Sign 8 at the time it forced the Orion off the road. Call Sign 12 collided with the rear of the Orion. |
| Officer F |
Rear seat passenger of Call Sign 12. |
| Officer H | HMSU Sergeant who attended at the scene after the shooting. Directed Call Sign 12 to be moved. |
| Officer M | HMSU Inspector based at TCG headquarters. Directed communications and coordinated HMSU units 'on the ground'. |
| Officer Q |
HMSU Officer based at TCG headquarters Castlereagh. Assisted in running of a 'desk' i.e. to monitor and assist with radio communications and compiling the HMSU log. |
| Officer R |
Sergeant in HMSU who gave briefings and deployed Call Signs out of the police station. |
| Officer V |
Head of HMSU. Off duty on the day of the shooting. Was contacted shortly after the shooting and went into work. Attended a debrief and also liaised with Sergeant A and took medical advice. |
| Officer AA |
Detective Inspector AA in 'E' Department RUC. The second most senior TCG Officer at TCG headquarters. Along with AB had overall responsibility for the planning and control of the operation. |
| Officer AB |
Detective Superintendent AB in E Department RUC. The most senior TCG Officer at TCG headquarters. With AA had overall responsibility for the planning and control of the operation. |
| Soldier V | Army Liaison Officer responsible for liaison in TCG between Army surveillance and E Department. |
| Soldier X |
Undercover soldier who was driving a car several vehicles behind Call Sign 12 at the time of the stop of the Orion. Observed some of the events after the Deceased left the Orion. Performed a U-turn and left the scene without attending at the scene. |
| Soldier Z |
Undercover solider on general surveillance duties at 4-6 Arizona Street. |
| William Lowry | Chief Inspector of the RUC who attended the scene shortly after the incident. Took first account from Sergeant A. |
There were also a number of civilian witnesses who saw the events of 25 November 1992 unfold. They were Mr Hugh Malone, Mr Gary Brown, Mr Ciaran McNally, Mr Lawrence Moylan, Mr Emmanuel Cullen, Mr James McAllister and Mr Patrick McKeown. In addition medical and scientific experts provided reports and some were called to give sworn testimony.
(a) An entrance gunshot wound to the back of the left shoulder centred 5cm below and 22cm to the left of the 7th cervical spine and 54 inches above the soles of the Deceased's feet. The bullet had passed forward and to the right at an angle of about 45 degrees and slightly downwards. The bullet exited from the front of the left upper chest.
(b) An entrance gunshot wound on the left side of the back, centred 25cm below and 12.5cm to the left of the 7th cervical spine and 46 inches above the Deceased's feet. This bullet had passed forwards and to the right at an angle of about 45 degrees and upwards at an angle of about 15 degrees. In its course the bullet grazed the 9th left rib, lacerated the lower part of the left lung, the aorta (the main artery leaving the heart), the heart, the heart sac and the right lung before fracturing the right rib. The bullet made its exit on the right side of the front of the chest.
(c) An entrance gunshot wound on the back of the left arm, centred about 4cm above the point of the elbow and a corresponding exit wound on the front of the forearm centred 3cm below the elbow.
The injuries to the Deceased described at paragraph (b) would have ensured that death was rapid.
D. THE ONUS AND STANDARD OF PROOF AT INQUESTS OF THIS NATURE
"It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame."
"In the light of the importance of the protection afforded by Article 2, the court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of the State agents but also all the surrounding circumstances where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities …, strong presumptions of fact will arise in respect of injuries and death which occur. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation."
"Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability) but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities."
"It is recognised by these statements that a possible source of confusion is the failure to bear in mind with sufficient clarity the fact that in some contexts a court or tribunal has to look at the facts more critically and more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is, however, finite and unvarying. Situations which make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place …,
the seriousness of the allegation to be proved or, in some cases, the consequences which could follow from acceptance of proof of the relevant fact. The seriousness of the allegation requires no elaboration: a tribunal of fact will look closely into the facts grounding an allegation of fraud before accepting that it has been established."
E. LEGACY INQUESTS
"The participation of the public in trials by jury constitutes a long recognised asset in the administration of justice."
However, he went on to say at paragraph [84]:
"… it would be idle to ignore the problems both of jury intimidation and perverse verdicts in Northern Ireland."
F. PREVAILING CONDITIONS IN NORTHERN IRELAND 1992 AND 1993
Morgan LCJ at paragraph [6] in the Court of Appeal case [2014] NICA 76 said in respect of AA's evidence as follows:
"AA said he could not recall if there had been any assessment of the risk of stopping. He said that the overriding concern was whether a car bomb was going to the city centre. The priority was to ensure that the bomb did not go to the city centre because the IRA was hell bent on a bombing campaign. AA recalled that a few days after 25 November 1992 a bomb had exploded in Upper Queen Street, Belfast, in which 27 people were injured."
G. DELAY AND MEMORY
"In this respect the accused's evidence is clearly wrong and I ask why this is so. Is he lying or his recall faulty? The shooting incident occupied a time space that could better be measured in seconds rather than minutes and events were occurring much more quickly than it takes to describe them. It was a period of high tension and, he believed, high danger for the accused. Some people have the gift of total recall of events lasting long periods – others can get mixed up as to events which were over in seconds. This is not a personal reflection – it was confirmed by the evidence of Mr Patton, consultant psychologist. Having observed the accused and sought to assess his credibility quite objectively I am satisfied that his recall in relation to this part of the incident is and will remain distorted and that he is not lying or seeking to conceal something from me."
"[14] What has been said in the context of the prejudice created by delay in the context of civil litigation applies with even greater force in the context of criminal proceedings for the outcome of criminal proceedings may subject the defendant to potentially severe penal consequences and to extensive damage to his private life and reputation. In Birkett v James [1978] AC 297 in the context of a civil case of alleged want of prosecution Lord Salmon said:
'When cases (as they often do) depend predominantly on the recollection of witnesses, delay can be most prejudicial to defendants and to the plaintiff also. Witnesses' recollections grow dim with the passage of time and the evidence of honest men differs sharply on the relevant facts. In some cases it is impossible for justice to be done because of the extreme difficulty in deciding which version of the facts is to be preferred.'
As was pointed out by the Law Commission in its Consultation Paper 151 on Limitations of Actions the justification for limitation periods lies in the key concern that a defendant may have lost relevant evidence and be unable to defend the case adequately. Due to the loss of vouchers or other written evidence and the death or disappearance of witnesses it might be very difficult if not impossible for a defendant to meet a claim made after several years had gone by. Even where witnesses are still available they might have no memory or an inaccurate memory of the events in question. As long ago as 1829 in their first report the Real Property Commissioners (Parliamentary Paper 1829 Volume X 1, 39) stated that:
'Experience leads us to the view that owing to the perishable nature of all evidence the truth cannot be ascertained on any contested question of fact after a considerable lapse of time.'
If this proposition were invariably the case all old criminal cases would be bound to be stayed because justice could not be done and a fair trial could not be conducted. Our criminal law does not go that far. A more accurate way of expressing the matter is that as time elapses the ascertainment of the truth of an allegation becomes increasingly difficult. As the Law Commission paper demonstrates it is clear that "it is desirable that claims which are brought should be brought at a time when documentary evidence is still available and the recollection of witnesses are still reasonably fresh". This is the best way to ensure a fair trial and thus to maximise the chance of doing justice. Delay of its very nature increases the risk of injustice occurring. This is a point which any summing up should bring home to the jury so that they sufficiently appreciate the point.
[15] Where a recent complaint of sexual abuse is made a detailed investigation can be made of the allegation in its full factual matrix. The time of the alleged incident can be identified. The location can be identified, examined and photographed. Forensic examination can be carried out of the scene of the alleged crime, of the complainant and of the defendant. Body samples can be taken and analysed. Potential witnesses can be clearly identified and questioned. The precise familial or social context in which the alleged events happened can be closely scrutinised so that as clear picture as possible can be formed of the full context of the alleged abuse. Any alleged recent complaints to third parties can be carefully scrutinised. The defendant will have an opportunity against the picture flowing from a recent investigation to put forward explanations of the alleged events, can respond to the specific allegations in their precise context and can present a full defence (such an alibi) if one is available. Where an allegation is made long after the event and is made in an unidentified and wide time frame the police can carry out few of the investigative steps open to them at the stage of a recent complaint. The defendant thus suffers the real and clear prejudice presented by the fact that the complaint cannot be fully scrutinised and investigated in the light of recent events by an impartial police investigation. A consequence flowing from this is that the case will often come down to what is in reality a dispute between two persons with one person's word against another. A jury must fully appreciate the risks presented by having to decide a case on that basis since it necessitates the jury deciding whose evidence is preferable in the absence of any of the police investigative steps which are normally available to subject to scrutiny the honesty and reliability of a recent complaint. The absence of such timely investigation often removes the possibility of a more objective analysis. A jury should be made aware in the course of the summing up of these difficulties presented to a defendant arising out of a late complaint and a delayed investigation."
H. CREDIBILITY
"Many judges think they can tell from the demeanour of a witness when he is lying, but in the course of my practice at the Bar there were several occasions on which witnesses, whom I firmly believed to be honest and to be telling the truth, displayed evident signs of embarrassment and discomfort in the witness box, sufficient to make them appear to be lying. I am therefore very sceptical of such claims. A more complicated case in which demeanour was deceptive was that of a man whom I knew well, who was employed as a bookkeeper on a sheep station. When called upon to tell a social lie, he was covered with blushes and showed every sign of acute embarrassment. He always spent much more than his salary and was believed to have wealthy parents, but so transparent did he appear to be it did not occur to anyone to question his honesty until a query came from head office about the accounts, when he asked for the afternoon off, and was found dead some distance away. He had been systematically defrauding his employers for years, and almost everything he had told to his associates about himself was fiction."
"Credibility involves wider problems than mere demeanour which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person telling something less than truthful on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present factual recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on the balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
"Every judge is familiar with cases in which the conflict between the accounts of different witnesses is so gross as to be inexplicable save on the basis that one or some of the witnesses are deliberately giving evidence which they know to be untrue .. more often dishonest evidence is likely to be prompted by the hope of gain, the desire to avert blame or criticism, or misplaced loyalty to one or other of the parties. The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:
(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness's evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness.
The first of these tests may in general be regarded as giving a useful pointer to where the truth lies. If a witness's evidence clearly conflicts with what is clearly shown to have occurred, or is internally self-contradictory, or conflicts with what the witness has previously said, it may usually be regarded as suspect. It may only be unreliable and not dishonest, but the nature of the case may effectively rule out that possibility.
The fourth test is perhaps more arguable."
". There are, no doubt, witnesses who follow the guidance of good soldier Sveyk that The main thing is always to say in court what isn't true, as a matter of principle, but more often dishonest evidence is likely to be prompted by the hope of gain, the desire to avert blame or criticism, or misplaced loyalty to one or other of the parties."
'Falsus in uno, falsus in omnibus'."
It was his opinion that many witnesses whose evidence can be relied upon do tell lies on all sorts of issues not central to the case and for all sorts of reasons. He said:
"Equally, I strongly suspect that many honest witnesses, who would do their very best to ensure that the substance of their evidence was reliable and accurate, would nonetheless be willing to prevaricate, or if necessary lie, when asked why they lost their previous job or how their first marriage came to break up. Cross-examination as to credit is often, no doubt, a valuable and revealing exercise, but the fruits of even a successful cross-examination need to be appraised with some care."
That is certainly my experience both at the Bar and on the Bench. Witnesses do prevaricate, they do tell untruths on some issues that may be peripheral to the main event, but that does not always render worthless the whole of their testimony. A much more nuanced approach in assessing their testimonies is required from any judge of fact.
"It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which the accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proven facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."
"Now, Your Lordships have very frequently drawn attention to the exceptional value of the opinion of the judge at first instance, where the decision rests upon oral evidence. It is absolutely necessary no doubt not to admit finality for any decision of a judge at first instance, and it is impossible to define or even to outline the circumstances in which his opinion on such matters ought to be overruled, but there is such infinite variety of circumstances for consideration which must or may arise, and it may be that there has been misapprehension, or that there has been miscarriage at the trial. But this House and other Courts of appeal have always to remember that the judge of first instance has had the opportunity of watching the demeanour of the witnesses – that he observes as we cannot observe, the drift and conduct of the case; and also that he has impressed upon him by hearing every word the scope and nature of the evidence in a way that is denied to any Court of appeal. Even the most minute study by a Court of appeal fails to produce the same vivid appreciation of what the witnesses say or what they omit to say."
Lord Pearse said much the same thing in Onassis v Vergottis (see above).
I. ANONYMITY AND SCREENING APPLICATIONS
i. A generic application, with five annexes: (a) details of Dissident Republican attacks in 2015 and 2016; (b) the Twenty-Fifth Report of the Independent Monitoring Commission (2010); (c) a report from the Sunday Times of 6th February 2011; (d) a speech by the Secretary of State for Northern Ireland on 26th February 2015 concerning the Northern Ireland security situation; (e) the Secretary of State's oral statement on 20th October 2015 on the assessment of paramilitary groups in Northern Ireland (along with the assessment report dated 19th October 2015).
ii. A statement in support of the applications by a Detective Chief Superintendent attached to Legacy and Justice Department, dated 9th February 2016.
iii. An application on behalf of each officer, comprising the generic application adapted for the purposes of the individual applicant, a personal statement, a threat assessment obtained in January 2016 and a PSNI Security Report of January 2016.
iv. Medical reports were also submitted in support of the applications of Officers AA, AB, B and Q.
"[71] Those authorities, albeit in a different context, together with Lord Dyson's contrast between a fanciful risk and a significant risk lend support to the view that a real and immediate risk points to a risk which is neither fanciful nor trivial and which is present (or in a case such as the present will be present if a particular course of action is or is not taken) … In the context of Northern Ireland which has been subjected to decades of homicidal attacks on individuals by organised terrorists the threat to life has been real, though for the bulk of the population it is not a threat directed at them individually so that for most the risk is not present and continuing in the sense of immediate to them. For some, such as members of the police force, the level of threat has been and continues to be at a much higher level and it is much more immediate. It cannot be considered as anything close to fanciful and it is significant. The requirement to give evidence imposed on officers involved in this inquest will, according to the evidence, increase a present threat possibly significantly depending on the nature of the evidence and other unknown contingencies arising out of the inquest. The risk accordingly must qualify as real, continuous and present."
"[46] In the context of the officers refused anonymity in [and] screening the coroner proceeded on the basis that the risk was not at a sufficient level to engage the need for positive action under article 2. However, in each case it was recognised that there was a real possibility of the officer's personal security being undermined. This would depend on the nature of the evidence, how this would be examined in the course of the inquest and whether or not it was considered controversial. Those are all matters which would emerge over a period of time. The officers were already within the level of moderate threat. If they gave evidence without the benefit of anonymity / screening there was a possibility of a rise within the moderate band or beyond. Against that fluid and unpredictable background and in the context of an on-going terrorist campaign in which police officers very much remain as higher risk targets compared to the general population, the evidence points, in the words of Soering, to substantial grounds for believing that they faced real risks of a murderous attack. The risk could not be dismissed as fanciful, trivial or the product of a fevered imagination. What the evidence before the coroner showed is that the relevant officers were at real risk of terrorist attack. The state authorities know that the evidence, if given openly, could expose the witnesses to an increased risk, that that increase in risk could be significant and that the incalculable extent of that increase depended on what the witness might say in the course of the evidence, how controversial his evidence might be perceived to be and how he might be questioned in the course of the investigation. Arrangements for anonymity and screening will reduce and may well remove the risk of the increased chances of a terrorist attack. These factors point to the conclusion that the coroner was in error in concluding that the need for action under article 2 did not arise. Since the need for operational action under article 2 was in play the coroner in acting as a public authority is required to address the issue of what proportionate response is required in the circumstances."
"[304] A pre-requisite to a judicial review challenge is a decision. The Coroner was not invited to make a decision after the judgment was delivered by the Court of Appeal. Accordingly on that basis I dismiss the judicial review application in relation to those Officers to whom the Coroner had not initially granted anonymity and screening. Alternatively in the exercise of discretion I decline to grant any relief to the applicant in relation to those Officers.
[305] If I am incorrect in that conclusion I consider that the outcome of the balancing exercise, given the analysis of Deeny J and all the submissions which have been made to the Coroner was inevitable. If that was not so then an application would have been made to the Coroner.
[306] I dismiss that part of the judicial review challenge that relates to those officers to whom the Coroner had not initially granted anonymity and screening.
[307] The impugned decision in relation to officers who had been granted anonymity and screening is the decision of the Coroner dated 29 June 2012. The reasons given by Deeny J for refusing judicial review of the decision to screen the witnesses (see paragraphs 83-108) were prospective in advance of the inquest. I consider that all of those factors were in play. I note that the Security Services linked the risk to life with both a witness being named and appearing unscreened. I do not consider that the effectiveness of the inquest was undermined by the decisions to grant anonymity and to screen the witnesses.
[308] I dismiss that part of the judicial review challenge that relates to those Officers to whom the Coroner had initially granted anonymity and screening."
Officer AA LOW
Officer AB LOW
Officer A LOW
Officer B LOW
Officer C MODERATE
Officer D LOW
Officer E LOW
Officer F MODERATE
Officer H LOW
Officer M MODERATE
Officer Q LOW
Officer R MODERATE
Officer V LOW
"There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities' adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests …"
J. HMSU AND TASKING AND CO-ORDINATING GROUP
K. LOGS, PRESS REPORTS AND DISCLOSURE
"Blue Sierra L283 GNK mobile".
It then goes on to set out what happened in respect of the red Orion BDZ 7721, driven by the Deceased, the subsequent search of the premises at Nos 2 and 4 Arizona Street and finishes with all the Call Signs returning to base at 6.26. After that there is a debrief involving the various officers who took part in the operation that afternoon. The notes of the debrief are also produced contemporaneously and those notes rely, to some extent, on the log kept by the HMSU.
(i) There was no TCG log available for the hearing. I was told that no contemporaneous record was kept of what happened by the TCG during that afternoon. This seems to be unusual given that if there was an incident, a log kept by the TCG might provide a sound chronological background to the events under consideration. D/Superintendent AB was in overall control on the day in question, although as I have said not in operational control. He told the inquest in October 2012 that the TCG kept its own separate log. The entries would have been made by D/Inspector AA or "a member of staff would have made it for him". He agreed that there would have been three different versions, the handwritten one, the typed version and the one recorded in the computer. Three and a half years later at the inquest before me his evidence had changed. He denied that the TCG kept a separate log. He said that what actually happened was that the HMSU and Surveillance Liaison Officers kept logs and that these were entered by TCG into its computer. Mr Macdonald QC for the next of kin asked him:
"How did you keep your times correct as an independent TCG record if, in fact, you were just taking them a week later from the HMSU log?"
D/Superintendent AB replied:
"Well we would have, as I have said, we would make notes in our own journal. We would get all the timings and all from HMSU and the detachment and we would put … my deposition, my statement here is an exact copy of the notes I made in my own personal journal."
He then claimed he may have been misunderstood at the earlier inquest and that D/Inspector AA did not keep a separate log. D/Inspector AA said that he kept his own notes and that these had been handed over to CID. No surveillance log was ever produced.
(ii) The HMSU log was unsatisfactory in many respects:
(a) It was kept on foolscap sheets of paper which were then torn out of the notebook apparently and stapled or otherwise bound together for further use. They were retained with all papers relating to the operation. The sheets were not numbered sequentially. A log would sometimes be kept in a bound volume which, especially if it had numbered pages, would have made doctoring the original record that much more difficult. It is most unfortunate that the logbook was not kept in a numbered and bound volume.
(b) The notes commenced at 5.03 with the blue Sierra entry. The explanation given at the 2012 inquest for there being no notes prior to this time despite there being ongoing activity all afternoon was that the log started with the instructions to stop the car. That is plainly not the case.
(c) In October 2012 Officer Q had said that the operation only went live at 5 o'clock. "The log was started because the direction was given that they may stop the vehicles". However, on at least two earlier occasions that afternoon, or perhaps three, instructions were given to effect a stop and no record of those instructions was placed in the log.
(d) At the hearing in 2016 Officer Q said that there was nothing of relevance prior to 5.03. Again that does not square with the intelligence about the Orion and the instructions given to the Call Signs prior to 5.03. He then claimed that the HMSU log was a "reactive log" as opposed to a surveillance log. He was then asked about some of the activities of the Call Signs which should have been recorded and he said "I don't believe it happened". Officer M also drew attention to it being a response log. He said that an –
"HMSU log starts whenever they were tasked actually to do something".
The problem with that explanation is that it was inconsistent with what had happened. The Call Signs had been tasked to do something but then subsequently stood down. Yet nothing was recorded. I found Officer M's answers evasive and unconvincing on this issue. At one stage he said:
"They [the Call Signs] were tasked out, My Lord, to be in a position that if they were requested to put in a stop on a vehicle they were out and ready but the tasking never come [sic]."
(e) In any event, if a purpose of the log was to help establish a chronology as to what had happened at any subsequent debrief, which was one of the reasons offered for keeping the HMSU log, the reactive/response log as defined by Officers Q and M was worse than useless omitting as it did important pieces of key information.
(f) Mr Macdonald QC pointed out that before any "tasking" had taken place that afternoon Officer M had asked in answer to one of his questions to see the log to assist him in answering it. When challenged as to why he wanted to see a log which recorded reactive responses only Officer M claimed that he had confused the log with the debrief notes. Officer M then tied himself up in knots explaining the blue Sierra and "both" in the next entry. He claimed that this referred not to the Orion and the Sierra but to the Orion and another car entirely, a Cavalier which had never been mentioned before in the log.
Further, I can see no plausible explanation as to why he would not have received the intelligence information which came in at 3.40 which identified DP2 as using the red Orion. Furthermore, if Officer M is not at fault then D/Inspector AA who, at the very least, knew that a well-known PIRA activist was using the Orion on PIRA business (because he said so in his contemporaneous statement) is at fault for not ensuring that this critical information reached the crews on the ground. D/Inspector AA did say that this intelligence about DP2 would have been disseminated. If the evidence had been passed on to Call Signs 8 and 12, Sergeant A says that that would have made no difference to the way in which they attempted to stop the Orion. Nor would it have made any difference to the chase that subsequently ensued. However, it may have assisted Sergeant A in defending his actions in shooting the driver of the Orion in the particular circumstances. If DP2 was a hardened terrorist, and Sergeant A knew that, then logic would suggest he had even more reason to fear that the driver of the Orion could resort more readily to armed violence, if challenged. Sergeant A's fear when, on his account, the Deceased spun round should have been even more acute. I appreciate that it was Sergeant A's testimony that it was his experience that PIRA members when caught red-handed, would surrender and not engage in a fire fight when faced with overwhelming armed police presence. But it made no sense for the police officers in Call Signs 8 and 12 to deny that they were informed that DP2, a confirmed terrorist was thought to be using the Orion, if in fact that intelligence had been given to them.
(a) There had been no mix up.
(b) They had not been given the name of DP1 or DP2, as the man who might be driving the Orion on that fateful evening.
"At 3.40 pm there was a report .. that a red Orion BDZ7721, was being driven in the area of Whiterock Leisure Centre, by a known PIRA activist and appeared to be on PIRA business." (Emphasis added)
Clearly this could not have been the Deceased as his identity was unknown to the police or to the military and at that time he was believed to have no involvement whatsoever in terrorist or criminal activity. He was in fact DP2 who had been erroneously referred to as DP1, in a subsequent military document following the Deceased's death.
(i) He had been recruited into PIRA in 1987.
(ii) He was Quartermaster of PIRA in the New Barnsley/Moyard area by 1989.
(iii) He was regularly involved in PIRA activity. This included acting as look out for a shooting attack in 1991, participating in numerous attacks on New Barnsley RUC Station which involved both shooting and throwing blast bombs. In October 1991 DP2 was involved in moving a Semtex bomb from a house and was subsequently arrested and charged with conspiracy to murder and possession of explosives with intent.
The explanation offered by the PSNI for this evidence about DP2 not being available at an earlier stage is that it searched against the name DP1 which is the one used in the initial military report and that exercise produced nothing of relevance. They then conducted a search using a different Christian name with the same surname. This produced further material. Apparently, DP2 was not in any file or listed or linked to any computer system related to the death of the Deceased. The failure to make this disclosure by the PSNI is either sinister or simply gross inefficiency, if PSNI's explanation is accepted. It is not possible for me on the material available to make a final determination as to which is the correct explanation. It is however, a further cause for disquiet which must form part of the background when I come to judge the police account of what happened on the night in question.
(a) Why there was no TCG log.
(b) Why the HMSU log commences at 5.03 pm.
(c) The statement made by AA referring to a well-known PIRA activist.
(a) Officers M and Q were untruthful in their testimonies when they claimed that they had no idea that there was a real possibility the driver of the Orion was DP2, a hardened member of PIRA with a history of involvement in explosives and firearms.
(b) Officers M and Q did not pass the information about the identity of DP2 to any of the Call Signs and to Calls Signs 8 and 12 in particular.
(c) TCG and HMSU did believe that initially DP2 had been shot.
(d) While Chief Inspector Lowry may have told the councillor in confidence that the Deceased was DP2, this was not the entire reason for the press reporting that there had been a "botch up" or DP2 being identified as the person who was shot. The "Blues" may also have wrongly identified the Deceased as DP2.
L. THE ORION, ARIZONA STREET AND THE DECEASED
"that will provide both a timer delay and power source for an explosive device. During transit or storage these units will have an insulator separating the moving and stationary contacts, such as the tape present … and a length of dowel next to the microswitch. When these units are used in explosive devices a detonator would be connected to the output leads and a pre-set time delay, maximum 60 minutes set on the modified timer. The unit becomes armed once the dowel and insulator are removed and the device would function once the pre-set time delay expired."
M. THE DEBRIEF
(a) Tullygally Road East, Craigavon on 11 November 1982 where Gervaise McKerr, Eugene Toman and Sean Burns were shot and killed.
(b) Ballynerry Road North, Lurgan on 24 November 1982 where Michael Tighe was shot and killed and Martin McCauley was shot and severely injured;
(c) Mullacreevie Park, Armagh on 12 December 1982 where Seamus Grew and Roddy Carroll were shot and killed.
"The debriefs held by senior Special Branch officers within a matter of hours of the incident were, in my view, quite irregular and should not have taken place. The officers involved in the shooting were regarded as potential suspects and yet, not only were they comprehensively debriefed, but restrictions were placed on what they could or could not say in their subsequent statements to the CID."
"The policy and practice should in the future reflect the paramountcy of the CID investigations which includes the preparation of evidence and the questioning of suspects and witnesses free from any constraints placed upon that investigation by Special Branch."
N. ARTICLE 2 - SELF-DEFENCE
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in the defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."
"A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."
This applies to the use of force to prevent, for example, the shooting of fellow officers.
"… The test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another."
Accordingly, if Sergeant A had an honest belief that the threat was real (and makes no more than a proportionate response), it is immaterial that his belief was unreasonable, albeit the reasonableness or otherwise of that belief will be relevant to the question of whether it was honestly held.
"The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be and sub-sections (4) to (8) also apply in connection with deciding that question.
(4) If D claims to have held a particular belief as regards the existence of any circumstances –
(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purpose of sub-section (3) whether or not –
(i) it was mistaken, or
(ii) (if it was mistaken) the mistake was a reasonable one to have made.
(5) But sub-section (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.
(6) The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.
(7) In deciding the question mentioned in sub-section (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case) –
(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and
(b) that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.
(8) Sub-section (7) is not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in sub-section (3)."
"In summary, those responsible for carrying out the investigation must be independent from those implicated in the events; the investigation must be adequate; its conclusions must be based on thorough, objective and impartial analysis of all relevant elements; it must be sufficiently accessible to the victim's family and open to public scrutiny; and it must be carried out promptly and with reasonable expedition." (Emphasis Added)
Quite clearly for reasons which I refer to above this inquest has been carried out neither promptly nor with reasonable expedition. As far as I am concerned the investigation has been adequate and independent and I trust its conclusion is based on a "thorough, objective and impartial analysis of all the relevant elements, sufficiently accessible to the next of kin and open to public scrutiny."
The Court at paragraph 244 referred to the test it consistently applied and which was set out in McCann & Ors v UK [1996] 21 EHRR 97 at paragraph 20 where it said:
"[The] use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others."
"… it cannot substitute its own assessment of the situation for that of an officer who is required to react in the heat of the moment to avert an honestly perceived danger to his life or the lives of others; rather, it must consider the events from the viewpoint of the person(s) acting in self-defence at the time of these events (see, for example Bubbins, cited above, 139 and Giuliani and Gaggio cited above, 179 and 188). Consequently, in those Article 2 cases in which the Court specifically addressed the question of whether a belief is perceived, for good reasons, to be valid at the time, it did not adopt the standpoint of a detached observer; instead it attempted to put itself into the position of the person who used lethal force, both in determining whether that person had the requisite belief and in assessing the necessity of the degree of force used …"
The Court then commented at paragraph [246]:
"Moreover, in applying this test the Court has not treated reasonableness as a separate requirement but rather as a relevant factor in determining whether a belief is honestly and genuinely held. In McCann & Ors the court identified the danger of imposing an unrealistic burden on law-enforcement personnel in the execution of their duty. Therefore it found no violation of Article 2 because the soldiers honestly believed, in the light of the information that they had been given, as set out above, that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life … A similar approach – that is, one focussing primarily on the honesty of the belief – can be seen in many other cases …" (Emphasis added)
"It can therefore be elicited from the Court's case law that in applying the McCann and Others test the principal question to be addressed is whether the person had an honest and genuine belief that the use of force was necessary. In addressing this question, the Court will have to consider whether the belief was subjectively reasonable, having regard to the circumstances that pertained at the relevant time. If the belief is not subjectively reasonable (that is, was not based on subjective good reasons), it is likely that the court would have difficulty accepting it was honestly and genuinely held."
"251. It is clear both from the parties' submissions and the domestic decisions in the present case that the focus of the test for self-defence in England and Wales is on whether there existed an honest and genuine belief that the use of force was necessary. The subjective reasonableness of that belief (or in the existence of subjective good reasons for it) is principally relevant to the question of whether it was in fact honestly and genuinely held. Once that question has been addressed, the domestic authorities have to ask whether the force used was "absolutely necessary". This question is essentially one of proportionality, which requires the authority to again address the question of reasonableness: that is, whether the degree of force used was reasonable, having regard to what the person honestly and genuinely believed (see paragraphs 148-155 above).
252. So formulated, it cannot be said that the test applied in England was significantly different from the standard applied by the court in the McCann & Ors judgment and in the post McCann & Ors case-law (see paragraphs 244-248 above). Bearing in mind that the court has previously declined to find fault with the domestic legal framework purely on account of a difference in wording which can be overcome by the interpretation of the domestic courts (see Purk v Turkey and Giulini and Gagio) cannot be said that definition of self-defence in England and Wales falls short of the standard required by Article 2 of the Convention".
Both the next of kin and the PSNI took no objection to these paragraphs and both agreed that this sets out the correct test for the defence of self-defence.
"There shall be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances."
"On being notified of any death the Coroner shall, without delay, make such inquiries and take all such steps as may be required to enable him to decide whether or not an inquest is necessary, and every inquest shall be held as soon as is practicable after the Coroner has been notified of the death." (Emphasis added)
"The applicant relied on a number of periods of delay on the part of the PSNI. I do not propose to analyse all of them. As will become apparent I am content that the PSNI have both created obstacles and difficulties which have prevented progress in the inquest and have also not reacted appropriately to other obstacles and difficulties."
He then granted relief by way of a declaration in respect of the delay and reserved his position on the question of damages until he had heard further submissions.
There can also be no doubt that Hart J was unimpressed with the performance of the PSNI. He referred to the sustained efforts of the PSNI to avoid providing the next of kin with documents and the "irrelevant" documents promised but not provided. Both of these matters led to very considerable delay. The government also contributed to the delay at this time by its dilatory behaviour in amending the Coroners Rules and failing to make legal aid available for inquests.
"In carrying out its assessment of the planning and control phase of the operation from the standpoint of Art.2 of the Convention, the Court must have particular regard to the context in which the incident occurred as well as the way in which the situation developed. Its sole concern must be to evaluate whether in the circumstances planning control of the operation outside Michael Fitzgerald's flat showed that the authorities had taken appropriate care to ensure that any risk to his life had been minimised …"
However, it also emphasised at paragraph 147:
"… the Court must be cautious about revisiting the events with the wisdom of hindsight."
O. REPRESENTATIONS MADE ON BEHALF OF THE NEXT OF KIN
(i) In the back of the left arm just above the elbow.
(ii) To the back of the left shoulder.
(iii) To the left side of the back.
P. REPRESENTATIONS MADE ON BEHALF OF THE PSNI
Q. THE EVIDENCE
(i) The Police Evidence
"1. Use of force. The law governing the use of force is contained in Section 3(1) Criminal Law Act (NI) 1967, which states, 'A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or of persons unlawfully at large.' There is no specific reference to police officers or to the use of firearms but it should be clearly understood that the law as stated above applies to all persons and all circumstances, including the use of firearms by police.
2. The application of the Law by the Courts.
(1) The question whether, the amount of force used to effect an arrest or prevent the commission of a crime is reasonable in the circumstances is a question of fact not of law. The test to be applied is whether the conduct fell short of the standard to be expected of the reasonable man having regard to all the circumstances of the case.
(2) The use of force by an officer is subject to ALL of the following conditions:
(a) it is necessary, ie the objective cannot be achieved in any other way; and
(b) the amount of force used will be reasonable in the circumstances;
(c) only the minimum amount of force necessary to achieve the objective will be used; and
(d) the amount of force used will be in proportion to the seriousness of the case.
(3) In cases other than self-defence, police officers should consider before resorting to the use of their firearm which of the following will result in the greater harm: the criminal escaping or the injury to the criminal.
(4) Where a firearm is used in the prevention of crime or in effecting an arrest then officers must be certain that there was no viable alternative available. Officers must at all times bear in mind the possible fatal consequences of opening fire.
(5) It must be clearly understood that any use of firearms, whether it leads to loss of life or wounding or otherwise, will be the subject of searching investigation. Unjustified use may lead to criminal and/or disciplinary charges.
3. Circumstances for the use of firearms.
(1) Supervisory officers will decide which firearms, apart from those on personal issue, will be carried by members on duty. Firearms carried on duty must always be loaded with live rounds in accordance with weapon training directions. Firearms will only be used a last resort and then always in accordance with the instructions contained in this Section.
(2) It is impossible to catalogue the infinite number of circumstances which may arise and list those in which the resort to firearms may be justified.
(3) As a guide, it is only in exceptional circumstances that the use of a firearm against a person will meet all four conditions set out at 2(2). These exceptional circumstances include:
(a) an armed attack is in progress against any person and is endangering life; or
(b) an offender is offering armed resistance or otherwise jeopardising the lives of others;
(c) an armed attack has taken place and there is no other means to arrest the known offender.
(4) Armed means armed with a firearm, explosive device, petrol bomb or other weapon being used in a manner likely to cause death, or inflict serious injury.
(5) Specific examples of occasions where a firearm could be used after due warning include:
(a) Against a person who:
(i) is carrying what is positively identified as a firearm; and
(ii) is believed on reasonable grounds to be about to use the firearm in such a manner as to endanger life or cause serious injury; and
(iii) has refused to stop when called upon to do so; and
(iv) cannot be stopped in any other way.
(b) Against a person throwing a petrol bomb if his action is likely to endanger life.
(c) Against a person attacking or destroying property or stealing firearms or explosives, if there is an immediate danger to life.
(d) Against a person who, though he is not at present committing an unlawful act has:
(i) in your sight killed or seriously injured another; and
(ii) not halted when called upon to do so and cannot be arrested by any other means.
(e) If there is no other way to protect yourself or others from the danger of being killed or seriously injured.
4. Warning before firing.
(1) In general a warning must be given before firing and should be as loud as possible. If necessary or practical it should be repeated. It must:
(a) make clear that it is a police officer speaking;
(b) give clear, unambiguous instructions;
(c) make it clear that fire will be opened if the instructions are obeyed.
These ingredients may be contained in a very brief warning eg "Police, stop or I will fire'.
5. You may fire without warning.
(1) When hostile firing is taking place in your area, and a warning is impracticable:
(a) against a person using a firearm in circumstances which endanger life; or
(b) against a person carrying what you can positively identify as a firearm if he is clearly about to use it in circumstances which will endanger life or cause serious injury; or
(c) at a vehicle if the occupants open fire or throw a bomb at you or those whom it is your duty to protect, or are clearly about to do so; or
(d) where a warning would increase the risk of death or serious injury to you or any other person; or
(e) you or some other person has already come under armed attack; and there is no other way to protect yourself or others from the danger of being killed or seriously injured.
6. Firearms not to be used.
(1) Firearms will not be used against:
(a) any person or vehicle if all the conditions for use of such extreme force are not met; or
(b) any person who is merely suspected of a crime; or
(c) a vehicle merely because it has failed to stop for a signal at a road check.
7. Warning shots. When a verbal warning may not be heard in time or prevailing circumstances do not permit such action, a warning shot may be fired. This shot must be aimed and fired in a safe direction.
8. Discharging firearms.
(1) When the decision to open fire, either as a warning or for effect, has been taken:
(a) only aimed shots will be fired;
(b) no more rounds than are strictly necessary in the circumstances will be fired; and
(c) all reasonable precautions will be taken to avoid injury to any person other than the target.
(2) Use of firearms by police during hours of darkness.
(a) As a result of research conducted by the Ballistics Section of the NIFSL it has been established that when a bullet from a high velocity weapon strikes the windows or bodywork of a motor vehicle, this produces a flash which resembles to a greater or lesser degree, the muzzle flash from some low velocity weapons. Furthermore, it is believed that in similar circumstances the same effect could be produced when a high velocity bullet strikes the window pane of a building.
(b) These findings are of real significance and must be borne in mind by members who on duty during darkness may have to resort to the use of firearms in accordance with the provisions of these regulations."
PSNI accept that in opening fire Sergeant A did not comply with the Code of Conduct. In this interview immediately after the incident Sergeant A did say that he was "completely satisfied" that he was complying with the Code in his use of a firearm.
If the Code of Conduct is followed to the letter then it provides an assurance to the Officer that he will not be in breach of Article 2. "The Code in effect requires that the use of lethal force is unavoidably necessary." (See para [66] of Court of Appeal in In the Matter of Three applications by Hugh Jordan for Judicial Review). However, the Code does not represent the law on self-defence. It does not deal with the situation where a police officer might have to make an instantaneous decision when he believes his life or that of his colleagues is at grave risk. The unfortunate truth is that in such circumstances a police officer can only make an immediate assessment because regardless of how experienced or well-trained he is, if he wants to make sure and weigh up the pros and cons either he or his fellow officers may well be dead. It is not an enviable position. Under such stress, police officers in trying to make such an assessment can make a mistake: eg see Curtis (aka Jason) Davis v Commissioner of Police of the Metropolis [2016] EWHC 38) where the police officer, who was held to have acted lawfully, opened fire having mistaken a jump lead in the hand of the injured party for the barrel of a gun. The de Menezes case provides another clear example.
(a) He could not see the Deceased's hands because of where he was standing close to the rear windscreen and boot of Call Sign 8. At the interview of 30 March 1993 he was asked whether his view was covered by the roof of the car. His response was that he could not honestly say. He was challenged on the basis that he had re-marked the sketch map to allow him to make the case that he could not see the Deceased's hands. But of course he had already been interviewed and made it clear that he could not see the Deceased's hands at that interview. Given his answers when interviewed, I consider that the marking error is more likely to be due to lack of care. These maps which are not scaled, are often misleading. I consider that I should be very slow to draw adverse inferences from them. That is demonstrated by the divergent markings of all the witnesses, police and civilian alike, as to where, for example, Call Sign 12 actually stopped on the Falls Road. It is confirmed by my visit to the site of the shooting. The very confined space means that the slightest change of angle or position can have an enormous affect.
(b) The hands of the Deceased remained down.
(c) He did not consider hiding behind the armoured car. Given the speed with which everything happened, this was not an option. The easy answer was that if he did do so, he would expose Officer C, the driver of Call Sign 8, to mortal injury, who he could reasonably anticipate was emerging from the driver's seat at that time. However, he did say the driver of Call Sign 8 was at risk from the Deceased because he "would have been getting out at the same time".
It was his opinion that the Deceased's refusal to halt, his aggressive turn towards the police who he must have known were armed with his arms down so that his hands could not be seen, convinced A that his life and those of his colleagues was in mortal danger. He believed that he and his colleagues were going to be shot. The inquest was told, as I have already noted that even when PIRA members were caught red-handed, they would normally put their hands up and surrender when the odds, as here, were obviously stacked against them. He said in a statement on 30 March 1993:
"All the circumstances I have already described and my experience having arrested many experienced hard-bitten terrorists when called on to halt or surrender – the normal reaction – even when they're armed is to stand perfectly still and raise their arms and follow instructions implicitly so as to give the impression they are not a threat to you."
There was no challenge to the content of that statement.
He also said:
"I was in fear that the man was armed, the way he had spun round so quickly. He seemed to be very, very quick. I fired a short burst of my MP5 at the man."
(a) He never attempted to suggest that the Deceased kept on turning after he was shot, although this would have improved the history given by him and made his version of events more coherent and consistent. He did not deny however in his first interview that the Deceased may have "turned on round or had moved in some other way". He said, "While I made the split second decision to fire the man was facing towards me but I honestly can't say whether he had turned on round or had moved in some other way."
(b) He never suggested that he saw the Deceased reaching for a gun.
(c) He was frank about the fact that he did not comply with the RUC Code of Conduct when cross-examined by Mr Macdonald QC, but had no doubt that he had acted within the law because his life (and those of his colleagues) was, he thought, endangered by the action of the Deceased.
(d) He said that if this was a training test with cardboard cut outs he would probably have failed it. But training and real life are very different. Cardboard cut outs cannot fire live ammunition.
(e) He did not suggest that he called an appropriate warning in accordance with the Code of Conduct as he could easily have done.
(f) He said he had no idea that the car that stopped in the outside lane was Call Sign 12. He said, "… at the time I just saw it as a vehicle". He would not have seen anyone getting out of that car given that its headlights were on. Any shots while in the direction of the car would have been angled across the road. Mr Macdonald QC said that the shots would have been fired in the direction of Call Sign 12 and accordingly Sergeant A's evidence makes no sense. It is a mistake to rely on the sketch maps which are not properly scaled. Each policeman places the Deceased in different position adjacent to the front of Call Sign 12. While the shots undoubtedly were in the general direction of the car (which as I have said Sergeant A did not know to be Call Sign 12) they are likely, I conclude, to have been fired at an angle across the road.
(g) He gave Dr Crowther who examined him shortly after the incident a history consistent with that given to the inquest when he could not reasonably have anticipated at that stage that the notes and records of Dr Crowther would be made available either to the next of kin or to the Coroner.
(h) Having listened carefully to the evidence of Sergeant A I do not accept the submission of Mr Macdonald QC that it is simply inconceivable that Sergeant A honestly believed he was under threat in circumstances where there was no objective threat whatsoever. If the circumstances were as described by Sergeant A then it is certainly credible given the catenation of circumstances that Sergeant A should believe that his life and that of his colleagues, and in particular Officer C, were under mortal threat.
(a) What Sergeant A was alleged to have done in Mullacreevie Park occurred some ten years before.
(b) His actions were dictated by the instructions of his superior officers.
(c) The circumstances were very different. The PIRA was enjoying considerable terrorist success and the protection of sources was absolutely essential if peace was to be restored to the province.
However, I must recognise that while Sergeant A is someone of good character with no convictions and an unblemished record of service to the RUC, he is someone who is capable of lying when he considers the occasion demands it.
Firstly, as I have said Sergeant A was unapologetic because he felt that his shooting of the Deceased was justified by the fear he felt for his life and/or that of his colleagues and that this was as a direct consequence of the actions of the Deceased.
Secondly, with the HMSU he had been involved in countless terrorist incidents. Again as I have said, his behaviour in those incidents was not of someone who was prone to discharge his firearm without necessity. It also contradicted the suggestion that Sergeant A was prepared to shoot the Deceased even though he was unarmed, simply because he was carrying out work for PIRA.
Thirdly, the medical records note that although he was quite controlled and demonstrated no emotional lability, he did display a tremor of both hands consistent with a man in shock.
Fourthly, following this incident he had to take up a job as a staff sergeant. Mr Macdonald QC probed his reaction to not being on active service. For someone who had been on active service and carrying out operational duties, it is unsurprising that the administrative duties associated with the work of a staff sergeant might well appear dull.
Fifthly, the only regret that Sergeant A expressed was directed at his failure to ensure that when he removed the safety switch, he put it into single shot rather than automatic mode. He said in evidence, "At that stage I was glad the safety went off. No matter where it stopped I just wanted the safety catch to go off." As I have said, he believed that the circumstances justified him opening fire. However as a policeman with an expertise in firearms, his failure to engage his gun into the single shot mode was a source of professional disappointment.
Firstly, he said he could not recall hearing a shout. If Officer C was determined to lie to support Sergeant A then the easiest lie of all to make was to allege that Sergeant A had shouted a warning and that that had been ignored by the Deceased.
Secondly, although he turned away as the shots were discharged, he described seeing the Deceased's face immediately beforehand "in a flash", "facing me". He gave a gripping and convincing account of seeing the face of the Deceased immediately before the burst of gunfire.
He said that he was not sure that Sergeant A was at the debrief and denied his version was in any way based on any narrative recounted by Sergeant A after the shooting.
I found Officer D to be a credible witness. So far as I could tell from watching him give his testimony, he tried hard to tell the truth about what happened all those years ago. I certainly did not gain the impression that he was prepared to lie in order to support Sergeant A's version of events.
"So whenever he then spun in an aggressive manner towards people that he knew to be armed, I still to this day do not understand and find it hard to reconcile that he wasn't armed because based with what I saw happening that day I was of the opinion that my life, but primarily the lives of my colleagues were in danger …"
He went on to give convincing evidence about never having perceived a greater threat to his life. I did not consider his evidence in 2012 to be inconsistent with his evidence in 2016. He clearly feared for his life, and gave evidence of that fear on both occasions. That fear was instilled by the actions of the Deceased. His testimony before me was vivid and disturbing. This ties in with the testimony of Officer D and must be seen in the context of them being serving officers in the HMSU who day and daily had to deal with terrorist led wrongdoing. He believed, according to his evidence, that the Deceased had a firearm. He was cross-examined closely and in detail. He responded well and gave convincing evidence of this being the most amount of fear he had felt in 30 years in the police and that it was the worst incident of his career.
He provided a graphic background to what had happened during the day and the circumstances under which the HMSU were operating. His evidence appeared to be truthful and was not that of someone who was prepared to support a colleague in a lying version of events come what may.
(ii) The Civilian Evidence
(i) He was certain that the officer who had fired the shots had done so from the off-side of Call Sign 12. However there was no mention in his original statement that he saw anyone holding or firing a gun, never mind firing from a location from which the evidence strongly suggests no shots were fired.
(ii) He claimed in his original statement that the Deceased having been brought to the ground was kicked by two officers to his chest. As already noted his evidence on that issue was not supported by any objective evidence from the post mortem examination. But in answering questions as to how this had occurred, his replies were inconsistent and confusing. In 1995 he told the Coroner when the inconsistencies were drawn to his attention that if "I described wrong then, it's described wrong". The totality of his evidence of these assaults, whether they were kicks to the chest or knees to the chest, whether on the ground, or on the way down, was unconvincing, contradictory and inconsistent. In general I did not find his testimony credible or convincing.
(i) There was a burst of automatic gunfire. Then he heard a single shot and saw the Deceased fall. The evidence does not support the claim that at any stage there was a single shot.
(ii) The police officer firing the gun did not come from the rear car and could not have rested his elbow on the boot. The person who fired the gun was Sergeant A and he did so from the footpath holding his gun against his chest, I so find.
(iii) He had Call Sign 12 in the position in front of the red Orion and Call Sign 8 positioned behind the red Orion. In other words he had the police cars in the wrong order.
(iii) Expert Evidence
"He had been struck by three bullets. One had entered the back of the left shoulder and had passed forwards to the right at an angle of about 45 degrees and slightly downwards through the upper end of the left arm bone before making its exit on the front of the left upper chest.
Another bullet had entered the left side of the back and had passed forwards to the right at an angle of about 45 degrees and upwards at an angle of about 15 degrees. In its course it grazed the ninth left rib and lacerated the lower part of the left lung, the aorta, the heart, the heart sac and the right lung before fracturing the fifth right rib and making its exit on the right side of the front of the chest. The injuries caused by this bullet would have caused his rapid death.
A third bullet had entered the back of the left arm and had passed forwards fracturing the lower end of the arm bone and making it exit on the front of the forearm.
The injuries were of a type caused by bullets of low velocity.
He had been struck by three bullets which had come from behind and to his left. There was nothing to indicate the range at which they had been fired."
"These are not consistent with my findings as Mr Moylan says that the deceased was standing with his arms upraised when the final bullet was fired. This is not possible as the fatal bullet, which caused severe laceration of the heart and the aorta, the largest artery in the body, would have caused immediate collapse and had come from behind and to the left of the deceased. It could not, therefore, have been the final bullet fired. As it would have caused immediate collapse, it follows that Mr Jordan would have been unable to turn, walk backwards and raise his arms before the fatal shot was fired. For these reasons it seems to me that Mr Moylan's recollection of the events is mistaken."
"A. … [C]ertainly the appearance of the wounds would be consistent with Mr Jordan having been upright, either standing or walking or running possibly. And from the direction of the wounds to the trunk we can say that when those wounds were sustained the shooter had to be towards his back."
"A. … Now again in saying that, one has to be careful because of movements of the body, in other words I could be facing and turn but nevertheless because of the direction through the body it would still indicate that the firing had come from behind his left shoulder area."
"A. Not when he sustained those injuries, no. He could have been facing initially and turned round, but his back would have had to be presented to the shooter for those wounds to have been sustained."
"Q. Just on the last point, Professor Crane, you already demonstrated very helpfully, if I may suggest so to the jury, that the deceased could well have been turning towards the shooter and then was turning away from him when he actually received the wounds?
A. Yes, that's possible, yes."
"Q. Does it seem likely to you, Professor Crane, that a person could spin so fast as to present his back to the shooter when at the moment the trigger was pulled he was presenting his front to the shooter at a distance of six yards?
A. As I indicated to you, there isn't any scientific basis to determine how quickly a person can turn. It is impossible to say whether Mr Jordan would have had time to spin or turn so that his back was presented to the shooter, I just can't say, Mr Macdonald.
Q. Does it seem likely to you?
A. Well it certainly is very rapid indeed. I don't think that I – I would simply be speculating if I said that.
Q. Well you have been invited to comment on how quickly a person can turn.
A. Yes.
Q. Do you think it is likely that a person could turn so fast, any person could turn so fast?
A. It certainly seems that it is very rapid, I agree with you.
Q. When you say you agree with me, I mean it doesn't seem likely?
A. To me, for an individual to turn in that split second. I have no scientific basis, but it does seem to me that would be very rapid indeed.
Q. You say 'very rapid indeed'. What do you mean, does it seem likely, is it realistic?"
"It would mean, if this is the time span, what I am saying is it would require Mr Jordan to turn very rapidly indeed. Unfortunately I can't give a specific time, it may be that it is a matter that, with respect, perhaps the jury need to consider. Certainly the point that I am making is that to turn in that time would require a very rapid turn indeed."
"In my opinion when the pathological evidence is considered together with the circumstantial evidence the proposal that the deceased was initially facing Officer A when he fired but that he had sufficient time to spin around and present his back is simply not possible."
"Taking into consideration the reaction time of Sgt A in response to an observed spin turn by Mr Jordan and the speed at which a clockwise ipsilateral pivot turn could be achieved by Mr Jordan, I consider that the scenario set out above [referring to the evidence of Sergeant A and Officer F] is a plausible explanation for the location and trajectory of the gunshot wounds to Mr Jordan."
"In respect of paragraph 3 [of Dr Cary's report], Professor Pounder agreed that 2 of the 3 shots which struck Mr Jordan, i.e. those to the back of the trunk, hit the deceased from behind or, as stated by Professor Crane, with the back of the deceased presented to the shooter. Professor Pounder was of the opinion that whilst the entrance wound to the back of the left elbow was consistent with the shots being directed from behind, this could not be stated with certainty in view of the potential for rotation of the arm by up to 180° and it is possible that the elbow shot came from the side. Dr Cary accepted this proposition if the elbow shot was taken 'in isolation'."
"The two experts, Dr Cary (NC) and Professor Pounder (DP) discussed possible scenarios in the context of the evidence of witnesses. The experts agreed with the general principles enunciated by Di Maio in the section of his book headed Reaction – Response Times in Handgun Shootings. It should be noted however that NC had not been present at the inquest when the evidence from the witnesses was received. Professor Pounder was however present in court when some of this evidence was adduced. In view of this the experts agreed that – dependent on specific scenarios presented will be our opinion whether the deceased could have spun or turned so that he could have sustained the gunshot wounds to the back." (sic)
"Sooner or later a medical examiner will become involved in a shooting where an individual claims to have shot at another individual facing them but, at autopsy, the gunshot wound is found to be in the side or back. The question then arises as to whether the victim, on seeing the gun pointed towards them, or reacting to another outside stimulus, would have had sufficient time to turn 90 to 180 degrees in the time from when the shooter initiated the shooting process and the bullet hit. Cases such as this often involve police shootings.
Tobin and Fackler measured the minimum time needed for police Officers to fire, on signal, a drawn handgun, pointed at a target. The tests were performed with both the trigger finger on the trigger as well as outside the trigger guard (the recommended way by many police agencies to hold a gun). The mean time from signal to firing the handgun was 0.365 seconds with the finger on the trigger and 0.677 seconds with the trigger finger outside the trigger guard. Volunteers were then videotaped as they turned their torsos 180 degrees as rapidly as possible. The mean time to turn the torso 90 degrees was 0.310 seconds while to turn 180 degrees it was 0.676 seconds. Thus, Tobin and Fackler concluded that if an individual was facing a shooter, it was possible for the individual to turn their torso and end up facing away from the shooter in the time from when the shooter decides to fire and the gun discharges."
"A. An ice skater turns like a statue, in other words maintaining the same body position, whereas the biomechanics of the human turning in this pivot turn allows for a variable twisting of the torso."
"A. Well, using averages or conservative figures for both speed of turning by Mr Jordan and the reaction time of Sergeant A, together with the trigger pull time and then the known mechanical times for the weapon discharging five rounds and comparing the two sets of figures it is, in my view, possible that Sergeant A perceived the threat when Mr Jordan was in the 4.30 position [referring to the clock diagram] and Mr Jordan was able to achieve the 11.30 to 12.30 position before the shot struck him."
"Q. Right. If, according to Sergeant A, the deceased is facing him, not just at the time he perceives the threat or thinks about what he is going to do about it or decides to pull the trigger, but after the trigger is pulled and after the bullet leaves the rifle, but the bullets actually enter the deceased's back, that suggests a turn of about 180 degrees after the bullet has left the rifle; do you follow that?
A. I follow it but I don't agree with it because you are taking facing someone to mean full face on and I have already demonstrated to the Court how it is possible to stand side on and be effectively facing someone by twisting the torso, so the lay term 'facing me' is a lay term --
Q. Yes?
A. -- which the Court has to determine what it means in the context, it is not a technical term. And I have demonstrated using the clock how at the time the trigger was pulled Mr Jordan would be facing on the clock the 9.30 position, which is 45 degree angle from full facing on Sergeant A. And I think that probably most people would say that if they were looking at someone who was at an angle of 45 degrees to them they were facing them.
Q. As a pathologist, knowing the wounds that were caused here, and knowing the speed at which a bullet can travel the distance from a muzzle of a rifle 5 yards to the deceased, would you seriously suggest it is likely that the deceased was facing Sergeant A whenever those bullets emerged from the muzzle of the rifle?
A. All I can say is that the scenario presented by Sergeant A and the police officers is feasible, that's to say it is possible. Whether it is probable or not depends upon the assessment of the other evidence and its credibility and reliability and that is a matter entirely for the Court.
Q. You know the time it takes is something like 0.12 of a second for a bullet to move from the muzzle, travel 5 yards or thereabouts?
A. I understand the ballistics information, yes.
Q. Do you think, assuming for present purposes the deceased was facing Sergeant A at that point, facing in the normal sense of the term, not twisting but facing, do you think it is feasible that he could have turned 180 degrees in the space of 0.012 of a second?
A. No one could turn 180 degrees in that time –
Q. No one –
A. -- no, but that's not the scenario."
"… If we think about what facing towards means I have already demonstrated to his Lordship the range of possibility if I stand in one position, let alone if I rotate. So if, if Mr Jordan was facing, for example, the 9.30 position where he would be on the calculations we are currently using for the trigger pull, then he would have his back to police officer F and police officer F may well perceive that as being facing Sergeant A, that's an issue of perception, it is within the range of possibility, I think, and it is for the Court to decide then whether that is reasonable.
Q. Yes. We are not talking about trigger time here, we are talking about after the bullet has left the gun?
A. Well, yes, when you pull the trigger the bullet is almost immediately leaving the gun.
Q. And almost immediately in real terms in the body of the deceased?
A. Yes, that's right."
"In my opinion it is therefore not possible that the Deceased's front could have been facing Sergeant A at the time the decision to fire was taken."
Dr Cary subsequently said when giving evidence that this was "not properly within an area of expertise of a pathologist and that is how quickly someone can turn".
"Q. So they don't in fact help us in understanding the speed at which Mr Jordan could possibly, even theoretically, turn?
A. No, what they help with is that they give a concept of what constitutes a spin turn, that it is something which is, if you like, intrinsic to every human being in terms of their ability and that it is one manoeuvre which is recognised as an avoidance manoeuvre, in other words a rapid change of direction to avoid something and it is a turn which if you perform it is very impressive and is easy to perform, you merely stand in a normal position, place your right foot forwards so that your left toe is level with your right instep and then raise your left foot and swing around. So it helps in as much as it seems to me that is what the police officers were describing.
"Q. My learned friend read to you extracts from the transcripts of Sergeant A and Officer F that was given most recently, in the last week or so or two weeks, and it was put to you in light of those extracts that your expert opinion on reaction time and reaction time itself was a red herring and you rejected that by saying absolutely not. Why do you say that?
A. Because in order to analyse what happened or what possibly happened we have to have as a starting point to start the clock ticking at a point at which we can reasonably agree where and what Mr Jordan was doing and where and what Sergeant A was doing. And the only starting point that we can reasonably agree is the point at which Sergeant A begins to perceive a threat. If that is so, then we have to take into account everything that happens thereafter which is the rate of turn of Mr Jordan and Sergeant A's reaction time, trigger pull time and the data on the firing of the weapon from the ballistics expert, in other words all four elements must be factored in.
"Q. How does this clock face relate to Sergeant A's evidence in your estimation?
A. Well I think Sergeant A's evidence is quite simply that, in summary form that Mr Jordan was facing him throughout the time that he was actually discharging the gun. So it seems to me that this, this doesn't really depict that.
Q. Just on that issue, to what extent then is reaction time relevant in all this matter?
A. In my opinion it's not relevant because we're talking about the period of time after which the gun is starting to be fired, not the period of decision making before that happened. And I say that quite simply on the basis of what Sergeant A has to say."
"Q. You had referred to the speed at which an ice skater spinning on ice could turn and Professor Pounder didn't find that useful. Can you explain why you referred to the speed of an ice skater turning on ice?
A. Yes. I mean in fact I thought Professor Pounder said something rather helpful in this area, which was really the only reason I introduced this idea and that is that it shows you what is not possible – I think Professor Pounder may have said what is impossible – and that is that someone could possibly turn round on the road as fast as an ice skater can spin on ice, and that is the only purpose of introducing this, otherwise we are left with no idea of how quickly people might be able to turn round."
"A. No, put simply. There simply isn't enough time for him to turn away in any case, but this is actually during the course of the firing when the trigger has been pressed he is still presenting his front and that is wholly inconsistent with bullets entering from the back. It is as simple as that. I mean it's a terribly simple point.
Q. And what is the most obvious explanation for the wounds that you have seen in the evidence?
A. Well, that while Sergeant A was firing Mr Jordan's back was being presented. Obviously that can be pasted into what Mr Jordan was doing to present his back. I think it's obvious that if he were moving away from the firer that would be a very obvious explanation."
"A. Again that's Di Maio taking a sort of overview of all of it, and there are many expert elements in terms of that overview. I would not feel comfortable as a forensic pathologist taking an overview of the whole process. My main role, and indeed a role which I take very seriously, is to say okay, let's look at the wounds in this case. There's a dispute about where this man was standing and where he was shot from and how the bullets went into his body, and so the first exercise for me was to look at the wounds and see whether I agreed with Dr Press and others that he was shot from behind to the front, because an obvious explanation for the disparity would be actually that the original pathology was not right and he was, in fact, shot front to back, and such a circumstance would be in line with what Sergeant A had to say. So my first duty was to see actually if the pathology was right, because there can be difficulties in determining whether a wound is an entry or an exit. But I, like all the pathologists involved in this case as well as Dr Press, am entirely convinced that the gunshot wounds go from back to front, and that's the main role of a forensic pathologist in these proceedings."
"Q. But in order to assess what Sergeant A was faced with, you accept that one must look to see what other witnesses' accounts are?
A. Well the Court certainly needs to look at that. But for me it doesn't affect the forensic pathology evidence other than to highlight the fact that I have a very strong duty to make absolutely sure which the entrance wounds are and which the exit wounds are, because the factual background to all this is that not just Sergeant A says Mr Jordan was facing him, but also Sergeant F provides some support for the spin and the possibility of facing him."
"A. I have made it clear several times now that I'm a forensic pathologist and I would not be attempting to give the same evidence as Professor Pounder has given around the clock and the timing because I don't regard that as being within my expertise.
Q. I see.
A. I am confining myself, let me make it explicitly clear, to the forensic pathological aspects of this and comparing them to some of the witness evidence, and I would accept by its very nature I have been quite selective in what witness evidence I have chosen, but the reason for doing that is that it is Sergeant A who was, in my view, in the best position to decide what was going on when bullets were actually coming out of the gun. Other people could easily be mistaken as to whether what they saw happened when bullets came out of the gun or whether it was shortly before or indeed shortly afterwards, and that's why I haven't got into those areas."
"C: It does appear to me that you may have overstepped the mark that that isn't strictly just a pathological, a view on the pathological evidence, it's taking into account other evidence on which you would not have an expertise.
W: I think I would take a more simplistic view when I say that. I am simply saying it is not possible for someone who describes themselves as facing the other person they are shooting at and for them to be shot in the back. I am not trying to say that taking account of all the evidence, and I would wish to emphasise that.
C: So when you say with the circumstantial evidence, that is a qualification which should really be omitted?
W: Yes."
"A. … Let me make it clear, I don't disagree with most of what Professor Pounder said about reaction time or his basis for that within the medical scientific literature. All I am saying is, firstly, that's not forensic pathology and, secondly, to me this case is all about what happened after that reaction time, not how long a reaction time might be."
"A. Well, again what I would say, my Lord, is that at the time that Mr Jordan sustained his wounds the front of his body, i.e. the front of his chest, could not have been presented to Sergeant A. So at the time that the shots were sustained Mr Jordan's back must have been presented in some way to Sergeant A, and that's confining to the pathology."
(a) The opinion of Professor Pounder that the absence of an exit wound was anomalous. Indeed, the Coroner criticised Professor Pounder for not highlighting a relevant textbook passage which he thought should have been drawn to his attention and failing to mention his lack of experience on this issue.
(b) His "subjective" views on the absence of any muzzle imprint on the facial skin of the Deceased.
(c) His views on the absence of "soots" as determined by looking at the photographs.
These examples serve to demonstrate that the Coroner at that inquest was in some areas less than impressed with the conclusions reached by Professor Pounder. However, while giving weight to the Coroner's carefully considered opinion in that inquest, I have to decide this case on the evidence adduced before me.
"The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This …. may be divided into two parts:
(a) Whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and
(b) Whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court."
It is also clear that an expert is entitled to rely on research carried out by another expert even though, as here, he has not verified that research himself: see Blackstone at F10.34.
"When the driver spun round towards me I forcibly pushed the safety catch from safe to automatic."
He went on to say:
"When I made the split second decision to fire the man was facing towards me but I honestly can't say whether he had turned on round or had moved in some other way."
As I have noted, it makes no sense whatsoever for Sergeant A to have invented a version where the Deceased spins/turns round prior to him firing when, on the next of kin's version, he must have known that he was discharging the bullets into the Deceased's back. He must have seen with his very eyes what he had done. This was an action carried out at close range, the shots were fired from a distance of a few yards at most. In those circumstances it would be inexplicable for him to rely on the provisional opinion of Officer F that the entry wounds were to the chest when, on the next of kin's version, he would have seen the bullets striking the Deceased's back.
R. THE STALKER/SAMPSON REPORTS AND THE POLICE OMBUDSMAN'S REPORT ON THE NEIL McCONVILLE KILLING
(a) The Tullygally East Road incident which occurred on 11 November 1982 and involved three Republican terrorists, Burns, Toman and McKerr who were all shot dead after a car driven by McKerr failed to stop at a VCP.
(b) The Ballynerry Road North incident on 24 November 1982 which involved the killing of Michael Tighe and the serious wounding of Martin McCauley at a hayshed at 12 Ballynerry Road North, Lurgan by the police.
(c) The Mullacreevie Park incident of 12 December 1982 involving the killing of INLA members Grew and Carroll by the police after they had been forcibly stopped by members of HMSU.
These killings followed the murder of three police officers on 27 October 1982 when a bomb had exploded at Kinnego.
(a) The Ombudsman made no criticism of the police for conducting a debriefing after this fatal shooting (and indeed was represented at it).
(b) The trigger mechanism of the Heckler and Koch sub-machine gun needed to be adapted to remove the automatic capability which it still had with the exception of a number of weapons kept in the armoury for which specific authorisation for their use had to be given. (If the present inquest had been concluded with due expedition this evident problem with the safety catch may have been solved and subsequent death avoided.)
"That he and the other members of the unit were told by senior police officers to give this story so as to conceal the fact that they were participating in a planned operation based on a source of information and acting in concert with Army surveillance teams. There is no doubt that this is so. (Emphasis added)
"10.4 The police officer will attract the target vehicle driver's attention by sounding the alternative horn and operating blue lights, were available, whilst remaining behind the target vehicle.
10.6 The police observer will signal to the target vehicle driver to pull in and stop.
10.8 Police should always endeavour to stop vehicles from the rear.
10.9 It is again stressed that the above procedures for stopping motor vehicles are guidelines. If a vehicle is suspect from a security point of view, members must exercise their own discretion in deciding the safest method of stopping it in the circumstances prevailing …"
The present position as embodied in the Police Service ACPO Instructions, that it is always preferable to stop vehicles from the rear, was re-iterated in 2007 by PSNI.
The Police Ombudsman recommended in the Neil McConville investigation that all operational weapons "be immediately adapted to remove the automatic capability with the exception of a number of weapons kept in an armoury for which specific authorisation for their use should be given (if it were felt that that capability was required)".
That recommendation seems well considered. It is one which this inquest intends to endorse. Here is a practical precaution which might have been taken earlier and which might have resulted in the saving of human life, if this inquest had been held with due expedition.
S. DISCUSSION AND FINDINGS
(i) they were convinced the shots were fired from the off-side of Call Sign 12 by a police officer who must have been Officer F. It may be that on seeing Officer F poised to fire, they assumed that he was the person who fired the weapon;
(ii) they were certain that the spent cases had been planted on the footpath although they saw none of the police officers move them from the road on to the footpath; and
(iii) they assumed that Call Sign 12 was removed as part of a cover up of what was a shoot to kill operation.
There were obvious inconsistencies running throughout their evidence and having an opportunity to see most of them give evidence, I remained unimpressed. In fairness, they face a near impossible task of trying to remember back all those years.
(i) Although I found the police evidence convincing and credible, some of those police officers who did give convincing testimony were, I conclude, lying to me about their knowledge of how the operation was reported in the immediate aftermath by the press. I am unable, having observed them closely, to identify which ones were telling untruths. I simply do not believe that none of them bothered to find out how this incident had been reported in the press and consequently failed to learn that it had been described as a 'botched' operation.
(ii) The whole way in which the debrief was conducted, that is permitting Sergeant A to give his version first, had the ability to contaminate and taint the versions of events subsequently offered by his fellow officers.
(iii) The evidence of Patrick McAllister to the 1995 inquest contains no claim that the Deceased turned right round prior to the shooting. His evidence appears to deserve to be given weight.
(iv) The evidence of Sergeant A does not include any claim that the Deceased turned round 360º. Sergeant A says that he could have turned on round but he did not actually see this happening, which is surprising.
(v) Sergeant A was prepared to tamper with the log in the Mullacreevie Park incident in 1982 to provide a false cover story. He agreed that he had been prepared to lie on that occasion.
I have not been satisfied on the balance of probabilities that I have been told the truthful version by the police officers concerned as to how the Deceased met his death. I accept that if the PSNI version is correct, then there will have been no substantive breach of Article 2 of the ECHR.
T. FINDINGS ON KEY ISSUES
(a) Why Sergeant A had a round in the breech before he got out of his car? The Force Order 58/1992 provides that it is permissible to carry a round in the breech only if the circumstances justify it. The next of kin urged that Call Signs 8 and 12 were instructed to carry out "a casual stop" using the defective rear lights of the Orion. The fact that the Orion did not stop did not justify Sergeant A in having a live round in the breech. They state that the Yellow Card which applied to the military did not permit a soldier to have a live round in his breech unless that solider was about to open fire.
On the other hand the PSNI urged that this was an appropriate action by Sergeant A given the high threat to the police and/or to the public.
My view is that when the Orion took off Sergeant A was justified in having a live round in his breech because of the real risk that such a reaction signified that the Orion was carrying munitions and that the driver might be armed and prepared to shoot his way out, if necessary, should the police attempt to stop his car.
(b) Whether Sergeant A shouted "Police, halt" or words to that effect before he fired? The evidence on this issue was thin. There was no independent support for Sergeant A shouting any of these words or indeed shouting at all. None of the civilian witnesses heard anything. Neither did some of the police witnesses. Two of the police officers did hear shouting but not the words which were spoken. As I have said I found Sergeant A to be a credible witness who, if anything, understated his evidence. I am satisfied that Sergeant A shouted something at the Deceased before he opened fire. I cannot be satisfied on the balance of probabilities that these were words to the effect of "Police, halt". I have no doubt that the Deceased knew the police officers had exited Car Sign 8 and that these officers were armed. I find on this issue that I am unable to reach a definite and firm conclusion as to what was shouted. However I have no doubt that Sergeant A shouted and that the Deceased was aware of his presence.
(c) Whether Sergeant A issued any warning that he was going to fire? See (b) above. To the extent that Sergeant A shouted, this would have the effect of warning the Deceased of his presence. However, I am not satisfied on the balance of probabilities that he issued any warning that he was going to fire. Sergeant A did not make that case.
(d) Whether the Deceased did anything that as a matter of objective fact, posed a threat to Sergeant A or to any other police officer? The Deceased objectively was no threat to Sergeant A or any of his colleagues. He was unarmed. However, if he turned in the manner described by Sergeant A, and for which there is support from other police officers, then Sergeant A for the reasons which I have set out could in those particular circumstances have feared for his life and those of his colleagues, and in particular Officer C. However, on this issue I am unable to reach a firm conclusion as to whether in fact the Deceased did turn in the manner as is alleged by Sergeant A. Twenty five years later I remain unsure as to what happened on that early evening and I am not prepared to speculate.
(e) Whether Sergeant A's view of the Deceased's hands was obstructed? I am unable to reach a view as to whether the Deceased did turn as is alleged by Sergeant A and the other police officers. If he did turn dynamically as is claimed then whether Sergeant A's view of the Deceased's hands was obstructed depends on a number of variables including precisely where Sergeant A was standing. I found Sergeant A's oral testimony convincing about not being able to see the Deceased's hands. However, I can reach no firm conclusion on this because other evidence causes me sufficient concern to leave me undecided as to how precisely the Deceased met his death. While the Deceased's hands may have been obstructed in those circumstances, from Sergeant A's vision, I am unable to reach a final view on the balance of probabilities.
(f) Whether the Deceased turned round to face towards Sergeant A? See (e) above.
(g) Whether the Deceased was facing Sergeant A when Sergeant A fired at him? See (e) above.
(h) Whether Sergeant A honestly believed that the Deceased did anything to pose a threat to him or at any other police officer? See (e) above. I remain unsure as to the circumstances in which the Deceased was shot and I am not prepared to guess.
(i) Whether Sergeant A selected automatic fire rather than a single shot deliberately or accidentally? On the balance of probabilities I consider given Sergeant A's reaction in the aftermath of the incident, and the manner in which he gave his evidence before me, that he did not intend to engage automatic mode. He did this accidentally as he pushed the switch forward. It is a matter which still causes him obvious regret because it reflects poorly on his ability as a marksman. There is evidently a problem with the mechanism which permits the safety switch on this gun to be switched to automatic fire accidently. The nature of the mechanism in general and the force required to move from safety to automatic is such that if the mechanism on this weapon now is the same as it was in 1992, then it should not be used by armed police officers (except where there has been specific authorisation for their use). There is simply too great a risk of an error being made in the heat of the moment. I strongly endorse recommendation 5 made in respect of these types of guns by the Police Ombudsman in the report she prepared following the death of Neil McConville.
(j) Whether Sergeant A was justified in firing in breach of the RUC Code of Conduct governing the discharge of firearms? See (e) above. On Sergeant A's version of events he was justified given that he reasonably feared for his life and/or that of his colleagues. Whether the scenario painted by Sergeant A is accurate remains uncertain.
(k) Whether Sergeant A could have taken another course of action, such as using the protection of the armoured vehicle as an alternative to firing at the Deceased? If the Deceased turned as Sergeant A alleges, then Sergeant A could have taken alternative action as a matter of fact. However, if his version of events is correct, and I am unable to reach a definite conclusion on this, the lives of his colleagues, and in particular the driver, Officer C, whom he assumed would be getting out were also at risk as they emerged from Call Sign 8. In those circumstances, which were not proven on the balance of probabilities, he did not have an alternative course of action open to him.
(a) Whether there was a clear line of command within the operations room. I have set out earlier in the judgment in the Section entitled 'Tasking Co-ordinating Group' what I understood to be the line of command. This was clearly understood. D/Superintendent AB was in overall control and below him was D/Inspector AA. Below D/Inspector AA was Officer M. However, it was apparent that Officer M was under enormous pressure. He was working very long hours. He spoke of working 38 hours without a break. He together with Officer Q was responsible for the failure to tell Call Signs 8 and 12 that DP2, a prominent PIRA member, might be driving the Orion. I also note that Kelly LJ had found Officer M to be an unreliable witness when he gave evidence before him many years before. So although there was a clear line of command, it would appear that Officer M did not provide Call Signs 8 or 12 with all the necessary information they could reasonably have expected to receive. I also appreciate that Sergeant A said that knowing the possible identity of the driver of the Orion would not have affected the way in which he gave orders to both Call Signs 8 and 12.
(b) Whether the TCG exercised any adequate control and supervision over the conduct of officers on the ground? The control exercised by TCG was adequate in the circumstances. When the Orion came out on its own, this suggested that it was not carrying munitions. The tactic of a casual stop made good sense and this was the instruction given to Sergeant A. However, the reaction of the Deceased in trying to escape provided objective evidence that the Orion might be carrying munitions and that carried with it real risks to Belfast and to members of the security forces. It made good sense that Sergeant A, one of the most experienced officers in counter-terrorism in Western Europe, should make the decisions on the ground and react to events as they happened. His experience was that PIRA terrorists on an active mission would surrender to armed police when challenged in circumstances in which the odds were not in their favour. This was the evidence before the inquest. It has not been challenged. Sergeant A's reaction was to give chase and this was a reasonable one. At all times TCG remained in radio contact with Call Signs 8 and 12. In the circumstances TCG did exercise adequate control and supervision over the conduct of Call Signs 8 and 12, and Sergeant A in particular.
(c) Whether TCG officers or Officer M gave any advice, guidance or directions to the police officers on the ground in relation to stopping the car and the importance or otherwise of stopping the driver? No advice, guidance or directions were given by the TCG officers or Officer M other than the advice that they should seek to effect a casual stop relying on the defective rear lights of the Orion. The crews of Call Signs 8 and 12 were highly trained and experienced. Sergeant A was exceptionally well qualified by his experience and training. Officer M should have advised Sergeant A of the potential involvement of DP2 with the Ford Orion. Even if Sergeant A had been advised that it was likely that DP2 was driving the Orion, then it is likely that the same request would have been made to the Orion driver to stop. However, on the basis of the evidence before this inquest, it is likely that DP2 would have done as requested.
(d) Whether the decision to stop the vehicle by way of a casual stop, as opposed to a vehicle checkpoint, in the absence of any clear direction as to what should happen in the event that the driver ran away caused and contributed to the death of the Deceased? The decision to use a casual stop on the evidence before the inquest was reasonable. Past experience had indicated the driver of the Orion would stop whether or not the car was carrying munitions. The fact that there was no scout car as I have said, was an indication there were no munitions or primed bomb on board. The fact that the driver was on his own was another indicator that he was likely to be compliant with the requests by a police officer to pull over. This is because a suspect's behaviour, I was informed, is more malleable in the absence of peer pressure. The risks with setting up a VCP were not explored at the inquest in any detail. However, there was some discussion about the logistical difficulties of setting up effective VCPs at this location. I am satisfied that it was physically possible to set up such VCPs in a citywards and countrywards direction. However, there can be no doubt that the presence of such VCPs would have completely compromised the entire surveillance operation. Inevitably the presence of PIRA "dickers" would have meant that a valuable intelligence opportunity to disrupt potential lethal bombing attacks or the movement of munitions could have been wasted. As I have noted, the civilian witnesses were already alert to the presence of Call Signs 8 and 12. The conditions at the time, and in particular the threat to Belfast and its inhabitants, were such that Call Signs 8 and 12 acted reasonably by giving chase and bringing the Orion to a halt. The alternative of allowing the Orion to escape with munitions on board was unacceptable at this time. The campaign of violence being waged by PIRA, involving as it did bombing and shooting, did not permit the police to take a chance and allow the Orion to flee the scene. There was too much at stake. Death and devastation could follow if the police made a mistake. I am satisfied on the balance of probabilities that the absence of any clear direction as to what would happen in the event the driver drove off at speed did not cause or contribute to the death of the Deceased. If instructions had been given, then I conclude on the balance of probabilities that those instructions would have been to give chase, if the driver did not stop and ensure that he did.
(e) Whether, therefore, the planning and control of the police operation was such as to minimise recourse to lethal force? The planning and control of the police operation did minimise recourse to lethal force. Stopping the Orion on the pretext of a faulty light was a reasonable one. There was no reason to conclude that the request to stop this car on its own would be ignored. The police officers could not be expected to anticipate that the Deceased would panic and flee the scene. The police reaction in giving chase in the particular circumstances was, I find, a reasonable one. The RUC acted quite properly in leaving control on the ground to Sergeant A who had proved himself in countless counter-terrorist incidents. It is important not to view events with the benefit of hindsight. In Bici v Ministry of Defence [2004] EWHC 786 (QB) at [46] Elias J said:
"Second, I also bear in mind certain observations of Lord Diplock in Attorney General for Northern Ireland's Reference (No.1 of 1975) [1977] AC 105 at 138 when he observed that often a solider has to act intuitively and that in assessing his conduct when judging the action of the reasonable soldier, it is important to recognise that his action 'is not undertaken in the calm, analytical atmosphere of the court room after counsel with the benefit of hindsight have expounded at length the reasons for and against the kind and degree of force that was used by the accused, but in the brief second or two which the accused had to decide whether to shoot or not and under all the stresses to which he was exposed'. Those observations were made in the context of a criminal case, but in my view they apply no less forcefully when considering liability in civil law."
I also consider that they apply with equal force to coronial law.
Anyone can be wise after the event. The approach adopted by the RUC in attempting a casual stop with the Orion was reasonable and well planned. What happened afterwards could not have reasonably been foreseen.
U. CONCLUSION
V. RECOMMENDATIONS
Recommendation 1
One of the recommendations of Stalker Sampson was that the policies and practices of the RUC should in the future reflect the primacy of the CID investigation, which includes the preservation of evidence and questioning of suspects free from constraints placed on the investigation by Special Branch. Specifically, it was recommended that, when incidents such as the 1982 shootings occurred, there should be no debriefings of officers before interviews with CID unless on the instructions of a Chief Officer who would later accept responsibility. For the reasons given above, I endorse that recommendation.
Recommendation 2
I recommend that the weapons issued to PSNI officers must not have the facility to have an incorrect firing mode selected by mistake. I heard no evidence as to the current state of the weapons used by PSNI Officers and am conscious that the PONI report into the death of Neil McConville made recommendations about weapons issued to PSNI [see para 17.10 of that report]. However, given the importance of this issue I consider it necessary to reiterate this recommendation.
Recommendation 3
A review should be held as to why the intelligence of 25 November 1992 at 3.40pm was not disclosed in the initial disclosure of sensitive material relating to the death of the Deceased and why it did not emerge until the last inquest was underway. This was a document generated in the course of the surveillance operation that culminated in the death of the Deceased.
Recommendation 4
It is vital that after the death of any civilian at the hands of the State's agents that the scene of the death is preserved until it has been adequately examined, tested, mapped and photographed by SOCO.
Recommendation 5
Further at the scene of such deaths the names and addresses of all possible witnesses should be recorded contemporaneously. This will help ensure that everyone who can give an insight as to what had happened is interviewed and is given the opportunity to make a contribution to the investigation.
Recommendation 6
As this inquest clearly demonstrates, it is vital if an effective investigation is to be completed that it be instigated and completed with due expedition after the death of any civilian and especially when that death occurs at the hands of agents of the State.
Recommendation 7
All log books kept in respect of any operation should be bound and the pages numbered sequentially. The TCG should always keep its own log book.
W. FURTHER THOUGHTS
