Killian Flood BL

About this case:

• Citation:
  [2021] NICC 3
• Judgment:
  External link
• Court:
  Crown Court
• Judge:
  Mr Justice O'Hara

The ruling led to the collapse of the murder trial for Soldier A and Soldier C because the interview evidence was the only basis for the murder charge.

The main issue in the case was whether interview evidence with the defendants, which was taken by the HET in 2010, was admissible in the case. It was claimed that these interviews amounted to confessions of guilt by the defendants.

Last week, Mr Justice O’Hara determined that the interview evidence contravened Articles 74 and 76 of the Police and Criminal Evidence (NI) Order 1989, meaning that the evidence was not admissible.

Background

In April 1972, Mr Joe McCann was shot and killed by British Army paratroopers as he evaded arrest from a police officer. It was accepted that Mr McCann had been a high-ranking member of the Official IRA and was known to be dangerous to British military members. It was accepted that he was personally responsible for attacking and killing British soldiers.

In the aftermath of the shooting, it was determined that three paratroopers had opened fire on Mr McCann. There was basically no investigation by the British authorities into the killing due to the established practice in place between the RUC and the Army at the time. However, the three troopers made statements to the Royal Military Police in 1972, which were mandated by commanding officers. As such, the troopers had no choice but to make statements to the RMP. They were not cautioned and had no access to legal advice.

No charges were brought against any soldier at the time and Soldier B subsequently died. In 2010, the HET became involved in the case. The HET was established to re-examine all Troubles related deaths and provide answers to questions asked by bereaved families. Another part of its role was to identify new evidential opportunities for unsolved cases. Many of HET’s staff were retired police officers.

The status of the HET interviews with former soldiers was somewhat ambiguous, even at the time, as it was not clear if the HET were investigating unlawful killings in a criminal sense or merely seeking to understand what occurred before. As such, the potential consequences for interviewees was not obvious.

In 2010, the HET met with Soldiers A and C and conducted interviews with them. Certain assurances were given to the soldiers, including a formal caution regarding their evidence and an acknowledgment of their entitlement to consult with their solicitors, who were present.

The soldiers read written statements into the record and the 1972 interviews were also read in. Given that the events occurred 38 years after the killing, Soldier A had no recollection of the case and Soldier C had limited independent memory. The HET made a report following these interviews.

Subsequently, the HET report was passed from the Attorney General to the Public Prosecution Service, where it was determined to charge the defendants with murder based on the 1972 and 2010 interviews.

Crown Court decision

The defendants objected to the use of the interview evidence, claiming that it was inadmissible for several reasons. It was accepted by the Crown Prosecutors that the 1972 statements were not of themselves admissible because they were ordered to provide them by their superiors. To allow the 1972 interviews to be admissible ran contrary to the well-established common law rules.

However, it was argued by the prosecution that the 1972 interviews were admissible due to being adopted by the defendants in the 2010 interviews. The defendants submitted that the 2010 interviews were inadmissible based on Articles 74 and 76 of the Police and Criminal Evidence (NI) Order 1989. Article 74(2) stated that confession evidence had to be excluded if it was a) obtained in an oppressive manner or b) made in consequence of anything said or done to render a confession unreliable. Article 76 grants a court the discretion to refuse to admit confession evidence if such evidence would be unfair to the defendant.

Giving judgment in the case, Mr Justice O’Hara ruled that the 2010 interviews were inadmissible. The court said that there were many points which the prosecution failed to answer adequately in the case. In relation to evidence provided by the HET, it was noted that the defendants could not have known that the 2010 interviews were part of a criminal investigation because the HET expressly said that they were not.

Further, the failure to identify a particular suspected crime in the 2010 interviews was a fundamental breach of the Code (R v Kirk [2000] 1 WLR 567). There was no authority identified to support the contention that the failure to warn an interviewee about any identified offence is not fatal to resisting an admissibility challenge. Finally, the fact that the defendants’ solicitors did not know of the circumstances or status of the 1972 statements was critical, because if they had known this, then it was “barely conceivable” that they would have advised the defendants to answer questions.

Having made these observations, the “inescapable consequence” was that the 2010 and 1972 statements had to be excluded. The court held that admitting the 1972 interviews which were given under compulsion would be a breach of Article 6 of the ECH (Saunders v United Kingdom [1997] 23 EHRR 313).

The court concluded that the PSNI should have interviewed the defendants under caution of the suspected crime of murder, the court said. If an admission had been made in those circumstances, a prosecution could have been brought. However, the present prosecution was putting “the 1972 statements dressed up with a freshened up with a 2010 cover” before the court, Mr Justice O’Hara said.

Conclusion

The court said that the safeguards which usually applied in criminal interview/admission cases were not present in the case. While the defendants did not get extra protection as ex-soldiers, neither did they deserve less. The court held that the interview evidence could not be admitted based on Articles 74 and 76 of the 1989 Order. This effectively rendered the entire evidence against the defendants as inadmissible.

Finally, the court noted there was no fault in the case on the part of the HET. The problems in the investigation of Mr McCann’s death stemmed from the non-investigation of soldiers by the RUC, which the court condemned.