NI Crown Court: Judge finds Former British soldier David Holden guilty for 1988 Troubles killing of Aidan McAnespie

About this case:

• Citation:
  [2022] IECA 134
• Judgment:
  External link
• Court:
  Crown Court
• Judge:
  Mr Justice O'Hara

Background

The defendant, David Jonathan Holden, was a former soldier who was charged with a single count of manslaughter. The charge related to the unlawfully killing of Aiden McAnespie in 1988, when Holden was an 18-year-old soldier with the Grenadier Guards.

It was not disputed that a bullet fired from a multi-purpose machine gun (MPMG), controlled by the defendant, killed Mr McAnespie. What was disputed was how that came about, and whether the prosecution had proven the defendant’s guilt beyond a reasonable doubt.

At Aughnacloy, Co Tyrone, near the border with Ireland, there was a permanent vehicle checkpoint. At approximately 2.45pm Mr McAnespie parked his car on the northern side of the checkpoint. He then walked through the checkpoint on his own, in the direction of the border. He was not armed and posed no risk to anyone.

Mr McAnespie was said by military witnesses to be a “person of interest” to the security forces. A few minutes later, the defendant discharged three bullets from the GPMG which he was armed with. One of these bullets hit the ground near Mr McAnespie and ricocheted into him, entering his back and going through his body. It caused considerable laceration of his right lung, resulting in severe internal bleeding and death.

A charge of manslaughter was laid against Holden in 1988, but was later withdrawn. The conclusion into this incident found that the weapon was mistakenly left cocked, and when Holden reached to move the position of the gun it went off, because his hand slipped, as it was wet from having spent the morning cleaning the checkpoint.

The evidence

The prosecution contended that the decision not to prosecute in 1988 was simply wrong and that the facts which had been proved should have led to a conviction.

The barrel of the gun had been pointing skywards. According to the defendant, he decided to centre the gun. To do so he took it in his right hand with his right index finger along the outside of the trigger guard.

The GPMG was capable of firing 750 rounds per minute. Accordingly, the firing of three rounds would take less than .25 of one second. It was not a hair trigger, it required pressure to be applied.

When asked what had happened, Holden told Lance Sergeant Peters, “I squeezed the trigger.” Peters saw three empty cases on the floor and immediately believed that this was “just” a negligent discharge. He did not look through the observation slit to see if anyone had been injured.

The defendant also said he did not look to see where the bullets went. He claimed it was not until later that night that he learned for the first time that the dead man was Mr McAnespie.

The defendant asserted that Mr McAnespie was out of sight, in a blind spot, when the shots were fired. This was proven to be incorrect, Mr McAnespie was always in sight.

Submissions

It was argued that Holden was guilty whether he pulled the trigger intentionally, not realising the gun was cocked, or whether he accidentally set the gun off because of wet hands, because the latter would still amount to an admission of gross negligence.

The prosecution argued that there was no evidence that the defendant cocked the weapon. Therefore, he was placed in a potentially dangerous situation by the negligence of others, not by any failing on his own part. It was submitted that any breach of a duty of care was a breach by the army, not the defendant.

Findings of fact

The judge was satisfied that the defendant did not cock the weapon before firing it. However, whether the defendant’s hands were wet or not, “his explanation in the witness box as to how the weapon came to be fired was entirely unconvincing”.

The judge noted that he could easily have moved the weapon by the butt, but instead reached his hand across the gun, close to the trigger, which was, “frankly incoherent evidence”. The judge did not believe this evidence, and concluded it to be a deliberately false account of what happened.

The judge also did not believe that the gun needed to be moved just as Mr McAnespie was walking alone on the road, or that the defendant did not look to see if the bullets had hit Mr McAnespie.

Finally, evidence proved that the weapon was not a highly accurate one, and yet two rounds “happened” to hit the ground so close to Mr McAnespie. This compelled the judge to believe that the weapon was in fact aimed at Mr McAnespie.

Consideration

In assessing any duty of care, the judge accepted that the defendant was 18 at the time. However, “Once an individual is entrusted with a lethal weapon, especially one as powerful as the GPMG, that individual owes a duty to every person, the duty being to use it responsibly and carefully”.

Next, the court considered if this duty had been negligently breached. The judge found that it had been, beyond doubt. He aimed the weapon and pulled the trigger. He could not have known from looking at the weapon whether it was cocked. He assumed that it was not. There was no safe basis for that assumption.

The judge emphasised, “Given the risks involved, that assumption should simply not have been made. It was not remotely a safe or proper assumption”.

The court found that the risk of death from this breach of duty was entirely foreseeable, given that it was a lethal weapon. The breach of duty also clearly caused the death of Mr McAnespie.

Conclusion

Ultimately, the judge saw this as the ultimate “take no chances” situation because the risk of disaster was so great. The defendant should have appreciated that if the gun was cocked deadly consequences might follow, “That is not something which is only apparent with hindsight”. The defendant took an enormous risk for no reason in circumstances where he was under no pressure and in no danger.

In light of this, the court found the defendant guilty of the manslaughter of Aiden McAnespie by gross negligence.