Henry Gargan’s and Edward Butler’s Application [2023] NIKB 103 (here)
Although often overshadowed by the Bloody Sunday killings a few weeks earlier, the Springhill killings of 9 July 1972 still stand out as one of the most notorious events during the troubles. The five people shot dead in Belfast that day included three teenagers and a Catholic priest, who was said to have been waving a white flag as he went to try and assist one of the injured children.
The victims’ families considered that they were targeted and killed by soldiers who used unjustified and indiscriminate force on unarmed civilians. The army account was that the victims were caught in cross-fire when IRA gunmen shot at soldiers who used legitimate and justified force at a time of heightened tension in response to specific threats.
The original inquest into the five deaths, held in 1973, provided no closure when it returned an open verdict. Against that background the fresh inquest ordered by the Attorney General was always going to be a source of controversy. The particular issue that arose for consideration in this judicial review claim was whether a Coroner obtaining the criminal records of witnesses who were at the scene of a death was a reasonable and proportionate step within coronial discretion or a disproportionate action that hampered the statutory function of the inquest through the chilling effect discouraging witnesses from coming forwards?
Background
There was evidence suggesting that members of the IRA were at the scene and were armed on the day of the shootings. The statement of one witness, identified an acknowledged member of the IRA “spraying” the location from a Lewis gun. In this context, the Ministry of Defence (MoD) applied to the Coroner for material held by the police (PSNI), including intelligence material on that witness and nine other named individuals.
The Coroner granted the application and set out criteria and parameters as to the further inquiries that should be made. He ordered that in the interests of expedition the criminal records of certain civilian eyewitnesses should be disclosed, but only information relating specifically to the shootings. The applicants challenged this decision on the basis that: (i) it would have a chilling effect, discouraging witnesses from coming forward and therefore unduly impinging the ability of the Coroner to fulfil the statutory function of the inquest to ascertain how the deceased met their deaths; (ii) it was disproportionate, in that it unfairly affected only civilian, and not military, witnesses; (iii) by withholding the names of the persons against whom searches were to be conducted (save for the ten identified), the Coroner had prevented the properly interested persons, including the next of kin, from being able to properly understand the scope of the ruling and from having an opportunity to make representations as to its application.
Decision
In this renewed application, Mr Justice Colton, refused permission.
He made clear that a person challenging a Coroner’s procedural ruling faces a high bar. Colton J cited Re Officer & Others [1] where the Court of Appeal in Northern Ireland stated that the High Court should not intervene unless it is apparent that a procedural ruling should not have been made. A Coroner will only have acted unlawfully if he has exceeded the generous width of the discretion vested in him to regulate the inquest in the interest of what he considers to be a full, fair and fearless inquiry. Coroners are therefore afforded a wide margin of appreciation. The High Court should be slow to exercise its supervisory jurisdiction and intervene. In general, the applicant must establish that the conduct of the inquest following the procedural ruling would deprive them of an opportunity to properly participate in the inquest and that, unless restrained, the Coroner would be proceeding to carry out an inquest in a manner that breached Article 2 ECHR.
Colton J found that the Coroner’s ruling was clearly designed to elicit potentially relevant material, which may assist in addressing the MoD’s central contention, that civilians were armed and fired at military personnel at the location. Such a ruling was clearly within the Coroner’s discretion and in furtherance of the objective of conducting a full, fair and fearless inquest. He was satisfied that both the basis for and the parameters of the search were clearly set out in the ruling.
On the first ground, the fears of the potential chilling effect had not been borne out. The searches had been conducted and the information was available for viewing. The assessment of relevance could be completed within the schedule currently set for the inquest.
As to the second ground of challenge, the Coroner justified the differential treatment of civilian and military witnesses in a fair and comprehensive manner. The Coroner explained that:
[T]here is an obvious distinction to be drawn between soldiers on the ground, whom we know were openly armed, and civilians who (on the soldiers’ case) were operating covertly in plain clothes and likely under the auspices of a proscribed organisation.
Further, he made it plain that the outcome of his ruling would be kept under review as the evidence developed.
As to the third ground of challenge, in the event that the searches would result in relevant material being disclosed, all properly interested persons would have the opportunity to make submissions about its relevance or admissibility. This would include issues relating to the identity of the persons concerned. In the event that the Article 8 ECHR rights of any individual would be affected, this could be dealt with by the Coroner. This would include notification to the persons potentially affected and the opportunity for them to make representations. In fact, disclosing the identities of the witnesses affected by the ruling at this stage could amount to a disproportionate interference with their Article 8 rights.
Comment
Obtaining the criminal records of witnesses at the scene of a death may be reasonable in a range of circumstances. For example, in inquests involving the police, where fatal use of force (not limited to firearms) is used because of a volatile situation involving bystanders (riot situations, for instance).
Further the case serves as a reminder of the staged approach to be applied to disclosure in inquests (disclosure to the Coroner first, and then to Interested Persons subject to submission and consideration by the Coroner) pursuant to the Worcestershire case.
The context of this inquest (‘the Springhill Inquest’) as one of the ‘Legacy Inquests’ into events during ‘the Troubles’ is significant and explains the central importance of ensuring that any disclosure request did not delay the final hearing. Under the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 all inquests arising from the Troubles which have not reached the stage of the coroner or any jury making their final determination by 1 May 2024 must be stopped, even if the inquest is already part heard [2]. After this time, the means for investigating deaths arising from the Troubles will be through a new body, the Independent Commission for Reconciliation and Information Recovery. Whether this new body will be able to fulfil society’s need for truth first, then reconciliation remains to be seen.
Footnotes
[1] [2012] NICA 47
[2] see s.44(1)
Update: on 28 February, the High Court in Northern Ireland declared that the immunity from prosecution provisions in the Legacy Act 2023 are incompatible with Articles 2 and 3 ECHR (In re Dillon and others – NI Troubles (Legacy and Reconciliation) Act 2023 [2024] NIKB 11). Colton J considered that the Act leaves sufficient scope for the Independent Commission to carry out an Article 2/3 compliant investigation [370]. Whether it will or not, will depend on the implementation of the statutory procedures and policies in particular cases.