About this case:

• Citation:
  [2022] NIQB 45
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Michael Humphreys

The court found that the PSNI was entitled to limit their investigations to Troubles shootings by the Army, rather than cases in which Army personnel had been killed.

Background

The applicant’s brother, Telford Stuart, was shot dead on 2 October 1972 at Twinbrook, outside Belfast. He was a serving soldier in the British Army, and a member of a secret undercover unit, the Military Reaction Force (MRF).

The MRF disguised itself as a laundry collection service, Four Square Laundry, to attempt to garner intelligence and information in relation to republicans. Its practice was to collect laundry from customers and then test them for any firearms or explosives residue before cleaning and returning them.

It also used its vehicles to carry out surveillance in relation to properties and vehicles. It was in one of these laundry vehicles that Telford Stuart was shot by two gunmen, the murder later admitted by the Provisional IRA.

One man, David Wilson, was prosecuted in relation to the incident in June 1973. He pleaded guilty to offences including possession of firearms with intent and membership of the IRA. He was sentenced to 12 years’ imprisonment.

In April 2009, the Historical Enquiries Team (HET) published a report into the murder. The HET findings included that the IRA was responsible for the murder, which was carried out following their discovery of the undercover unit.

The impugned decision

On 21 November 2013, the BBC broadcast a Panorama documentary into the activities of the MRF, which included interviews with former members. This prompted the then Director of Public Prosecutions to write to the Chief Constable of the PSNI, expressing “great concern” about the programme. This letter read:

Section 35(5) of the Justice (Northern Ireland) Act 2002 provides:

Solicitors acting for the PSNI stated that it did not consider that the section 35(5) request included actions of terrorists resulting in the death of members of the MRF. Therefore, the PSNI had determined that the scope of the investigation did not include the murder of Mr Stuart. It was this decision which was under challenge in the judicial review proceedings.

Application for judicial review

The application for judicial review sought declaratory relief on the basis that the Chief Constable misdirected himself in fact and law in refusing to include the circumstances of Mr Stuart’s death in the police investigation into the activities of the MRF.

The applicant said that this exclusion was irrational and contrary to section 35(5).

However, evidence from Detective Superintendent Jason Murphy, deputy head of the Legacy Investigations Branch (LIB), was that, following the November 2013 referral from the DPP, steps were taken to ascertain which incidents would fall within its scope.

It was determined that the LIB’s assessment excluded cases where the deceased was a member of the security forces or where there had been a murder conviction. This caused the exclusion of the murder of Mr Stuart from the scope of the investigation.

It was the view of the LIB that the investigation should focus on shootings by the Army rather than cases in which Army personnel had been killed.

It was the applicant’s case that the scope of the section 35(5) direction was a matter for the court to determine, and that the DPP could not seek to narrow the scope of the investigation.

Further, he argued that the Chief Constable could not restrict the scope of s.35(5) since that may undermine the purpose of the statute and the referral, which is to ensure proper investigation.

Consideration

In order to understand the nature of the section 35(5) referral, the court found it necessary to consider the letter as a whole. The correspondence specifically referenced the BBC broadcast and the claims made therein by members of the MRF.

These claims were said to give rise to the possibility, or probability, of the commission of criminal offences. Accordingly, the section 35(5) referral was made.

The BBC documentary contained no reference whatsoever to the murder of Mr Stuart or the Four Square Laundry operation. It concerned alleged MRF activities relating to the shootings of Joe Smith, Hugh Kenny, and brothers John and Gerry Conway, and the killings of Patrick McVeigh and Daniel Rooney.

Each of these incidents involved, it was claimed, shooting of civilians by the undercover MRF unit. It was the claims made on camera by former members of the unit which prompted the letter from the DPP since they gave rise to the concern that criminal offences had been committed.

The court found that the Chief Constable was not being asked to conduct some all-encompassing investigation into all matters connected to the MRF, but rather, to investigate the activities as represented by the shootings carried out by undercover soldiers.

As a result, the court concluded that the interpretation placed on the correspondence by the respondent was correct. The murder of Telford Stuart did not fall within the section 35(5) request.

Conclusion

Ultimately, the court found that the investigatory bodies involved acted rationally in their approach to the DPP’s request under section 35(5). As a result, the application for judicial review was dismissed.