Andrew McKeown BL

About this case:

• Court:
  High Court
• Judge:
  Lord Justice Treacy

Background

Soldier B, a former member of the British Army, challenged the decision of the Public Prosecution Service (PPS) to prosecute him for the murder of Daniel Hegarty and the wounding with intent of Christopher Hegarty. Both victims were struck by rounds fired by Soldier B on 31 July 1972 during Operation Motorman.

Soldier B, represented by David Scoffield QC with Gordon Anthony BL (instructed by McCartan Turkington & Breen Solicitors), argued that the decision was unlawful on the ground that it was in breach of his right to life under Article 2 of the European Convention on Human Rights (ECHR) and contrary to the Human Rights Act 1998 by reason of the medical evidence as to the consequences of that decision on his health.

In 2016, the then DPP decided that Soldier B should not be prosecuted. That decision was quashed in Re Brady [2018] NICA 20. The new DPP, who had no prior involvement in the case, undertook a fresh consideration of the case. The PPS Code for Prosecutors sets out a two-limb test which must be satisfied in order for the PPS to conclude that the test for prosecution has been met. The first is the evidential test, meaning that the evidence which can be presented in court is sufficient to provide a reasonable prospect of conviction. The second is the public interest test, being that the prosecution is required in the public interest. The first limb must be passed before the second. If both are passed, the test for prosecution is met.

Having completed the evidential test, the DPP wrote to Soldier B’s solicitor to inform them that he was moving to the public interest limb. He noted that one of the public interest factors engaged was whether Soldier B suffers from significant ill health and in particular the effect a prosecution might have on his health and what effect his ill-health might have on the trial process. Soldier B’s lawyers had submitted medical reports in 2015 to the former DPP. The new DPP sought additional medical reports and the opinion of senior counsel.

The DPP issued his decision in April 2019 that the public interest test was met and concluded that there was a reasonable prospect of securing a conviction. The DPP considered there was a strong public interest presumption in prosecuting charges as serious as murder and that this presumption had not been displaced.

High Court

The judges said that a preliminary question arose as to whether the challenge was a form of impermissible ‘satellite litigation’. There is a strong public interest presumption against satellite litigation in criminal cases (as noted by Lord Justice Patrick Coghlin in Re McVeighs’s Application [2014] NIQB 57). The judges said: “There may however exist exceptional circumstances which justify departure from the general rule forbidding satellite litigation in criminal cases.”

The court, citing the judgment of Lord Chief Justice Brian Kerr (as he then was) in Re McDaid [2007] NIQB 26, said it was “clear that a challenge to a decision to prosecute is more difficult to sustain than one not to prosecute”. That distinction arises because it is usually the victim of an alleged crime who seeks to challenge a decision not to prosecute in circumstances where there will be no other forum in which to secure relief. In contrast, in a prosecution case the defendant can generally secure his or her relief in the criminal court (Re Brady [2018] NICA 20).

The PPS, represented by Tony McGleenan QC with Philip Henry BL, argued that the scope for public law challenges based on alleged breaches of ECHR rights was considered by the UK Supreme Court in SXH v CPS [2017] UKSC 30. In SXH, Lord Toulson observed that there was no support in Strasbourg authorities jurisprudence for the argument that even if the conduct for which a person is prosecuted was not within the article, the article may apply to a decision to prosecute because of the attendant consequences. “By commencing a criminal prosecution the CPS places the matter before a court. In other Convention countries the court is itself in charge of deciding whether a person should be treated as an accused in a criminal case. There is a striking absence of any reported case in which it has been held that the institution of criminal proceedings for a matter which is properly the subject of the criminal law may be open to challenge… It would be illogical; for if the matter is properly the subject of the criminal law, it is a matter for the processes of the criminal law.”

Lord Justice Seamus Treacy, delivering the judgment of the divisional court, accepted the submission that the decision in SXH rendered Soldier B’s claim for breach of Article 8 untenable. That reasoning was applied by the Divisional High Court in Re JR76 [2019] NIQB 103

The particular obligations upon the prosecuting authorities, where it is alleged that Arts. 2 and 3 ECHR are engaged, were considered in R(D) v Central Criminal Court [2003] EWHC 1212 (Admin), where it was accepted that the release of the defence statement to the co-accused undoubtedly created a risk of death for him and his family. It was described as a “high risk to life”.

In R(XY) v CPS & ors [2016] EWHC 1872 the court said the question was ultimately whether the prosecutor had properly identified the risk to the applicant and his family. Lord Treacy said that the DPP, in the present case, had identified the risk arising from Soldier B’s ill health and thoroughly investigated it. He sought the advices of counsel who directed that updated medical evidence should be obtained to assess Soldier B’s current condition. The DPP shared medical evidence with Soldier B’s solicitor and received submissions based upon it.

Conclusion

The court found that in making the decision to prosecute, the DPP weighed the appropriate considerations. Soldier B’s application for judicial review was dismissed.