‘Unlawful killing’ as a narrative conclusion that names the perpetrator

In the matter of an Inquest into the death of Patrick McElhone [2021] NICoroner 1

The coronial world is still coming to terms with the impact of the Supreme Court decision in Maughan and what it will actually mean for inquests in practice. Even following the additional guidance from the Chief Coroner (here) the twittersphere still reverberates with questions such as how one can be ‘probably unlawfully killed’, whether how inquests are conducted will change if it is now open to return an unlawful killing conclusion in more circumstances, and whether Coroners will be open to judicial review if they fail to use those two words in a relevant case.

Some assistance with how to tread those difficult lines now comes from across the Irish Sea. The McElhone inquest provides a helpful example of how to frame what is (but for a semantic hair’s breadth) an unlawful killing finding within a narrative conclusion without needing to use those precise words.

Indeed, Mrs Justice Keegan has not only provided a tutorial on how to deal with factual findings in an unlawful killing inquest but she also more generally demonstrates how to tell the story of any death in a brief, concise yet comprehensive narrative.   Her verdict is so well worked that one doesn’t need to set out much of the background facts of the case here for the reader to understand what went on.

An innocent man, shot in cold blood, without warning, when he was no threat to anyone.

Some background

Mr McElhone was shot in the back by a (now deceased) soldier over 46 years ago. At the time the RUC recommended a murder charge: a trial followed but ended in an acquittal in 1975. The inquest that then followed ended with an open verdict and the civil case was settled.

When the Attorney General for Northern Ireland directed a fresh inquest in December 2018, a High Court judge, Mrs Justice Keegan, was appointed as the coroner and heard the case without a jury between 30 November 2020 and 7 January 2021. Being heard mid-pandemic it was held in a hybrid form, utilising a mix of remote video technology and live courtroom attendance. Solicitors, counsel and some next of kin were present at the socially distanced courtroom in Omagh with a video-link protocol in place (see here).

The restriction on inquest verdicts in Northern Ireland

The Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 at r.16 state that “the Coroner must not express any opinion on questions of criminal or civil liability”. The view of Keegan J was that this prohibition meant that ‘unlawful killing’ as a short form conclusion was not open to her. Eagle eyed readers will see that in England and Wales the similar statutory provision[1] only forbids determination of “criminal liability on the part of a named person” which is why a conclusion of unlawful killing can be returned here.

However, unlike their English and Welsh counterparts, Coroners in Northern Ireland do not use ‘short form’ conclusions but will conclude proceedings with a narrative verdict[2] which rule 22 describes as being “confined to a statement of who the deceased was, and how, when and where he died.”

Nevertheless, Keegan J was clear that in line with the Supreme Court in Maughan and the Northern Irish Courts on other cases[3] the civil standard applied to all factual findings made at an inquest.

The Verdict

Having considered all the evidence Keegan J made a number of factual findings that “put the record straight as I will record that the use of force was unjustified. Mr McElhone was an innocent man, shot in cold blood, without warning, when he was no threat to anyone” [138]. Her Ladyship then went on to formally record her eight point narrative verdict as follows:

  • The deceased was Patrick McElhone, known as Paddy, male, of Upper Limehill, Pomeroy, County Tyrone. He was single.
  • The deceased was born on 21 March 1950 at Omagh Hospital.
  • Mr McElhone lived at home with his parents.  He was a farmer.
  • Mr McElhone died at approximately 6.30pm on 7 August 1974 in a field known as “the meadow” at Upper Limehill, Pomeroy, County Tyrone.
  • Mr McElhone’s death was caused by a single fatal shot fired by Lance Corporal Roy Alun Jones a member of the First Battalion, the Royal Regiment of Wales.
  • Mr McElhone died due to injuries sustained from a bullet wound to the chest, shot from behind. It lacerated the base of the heart, the origin of the aorta and the pulmonary trunk and had made a small laceration on the front margin of the right lung. Death would have been immediate.
  • The deceased was unarmed and not acting in any threatening way or in any other way that would have justified his shooting.
  • This shooting has not been justified by the State, a fact now admitted.

The use of language in this narrative is extremely careful, not only is no finding of a crime made but it is not explicitly stated in the verdict that this shooting was not justified – rather facts are recorded: that the behaviour of the unarmed deceased would not have justified shooting him and that the state has not justified the shooting. In that context the perpetrator is also named.

Whether a similarly crafted narrative returned in England or Wales would be deemed to offend against s.10(2)(a) CJA 2009 remains to be seen – but when closely read it is clear that the carefully chosen words of this verdict do not make any finding of criminal liability on the part of a named person, even if the man who shot Patrick McElhone is named and we all are left in no doubt really happened.



[1] Section 10(2)(a) CJA 2009

[2]  ‘Verdict’ rather than ‘conclusion’ being the term still used pursuant to the Coroners Act (Northern Ireland) 1959.

[3] Such as In the Matter of an Application by Hura Steponaviciene for Judicial Review [2020] NICA 61 – and see our earlier blog on the first instance decision here