NI High Court: State failed to re-investigate 1992 pub killings after documentary unearthed new evidence

About this case:

• Citation:
  [2022] NIKB 10
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Michael Humphreys

Background

On 19 November 1992 loyalist gunmen carried out an attack at the Thierafurth Inn, Kilcoo, County Down, in which one man, Peter McCormack, was killed. The applicant was working at the bar at the time, and narrowly escaped being killed himself.

The UVF claimed responsibility for the attack, stating that the intended target was a Peter McCarthy, whose family owned the pub. The applicant explained that he had never been able to recover fully from these events and suffered post-traumatic stress disorder.

The applicant’s case was that, in recent years, evidence had come to light of collusion between the security forces and loyalist paramilitaries who were active in the area. In particular, he referred to the report of the Police Ombudsman (‘PONI’) into the killings, published in 2016.

The proceedings alleged failure of the Chief Constable of the PSNI to ensure an effective, prompt, and independent investigation into the 1992 attack.

The 1992 attack was investigated by an RUC officer identified as ‘Police Officer 4.’ In the PONI report he told investigators that the Thierafurth Inn was frequented by “bad people”, founded on a belief that it was associated with republican paramilitaries. The PONI report commented that this was suggestive of a lack of objectivity on the part of Police Officer 4. 

New Evidence

The 2016 PONI report further stated that, “in mid-1993 police received intelligence implicating Persons A, M, K and I in the conspiracy to murder Peter McCarthy…Police Officer 4 states that he did not receive such intelligence and my investigation has seen no evidence that it was shared with him”.

Similarly, in 2017, the documentary No Stone Unturned was released, which named suspects in the Thierafurth Inn shooting, and suggested security forces were aware in advance that the attack was to take place.

The film referred to a phone call made to a confidential line and an anonymous letter, both of which named the gunmen in the Thierafurth Inn. It was believed that the letter was sent from the wife of one of the suspects.

The documentary also includes an interview with a former police officer, Jimmy Binns, who stated that when Person A was arrested, the detective who interviewed him spent most of the time, “persuading the suspect to shoot and kill an IRA member”.

The applicant described that he was, “shocked by these revelations”, as he was previously unaware that suspects had been identified within a year of the attack. He expected there to be a fresh police investigation into the shooting as a result.

In August 2016, he contacted the PSNI asking when an effective and independent investigation would take place. No response was received, and when he later received a response in 2017, the reply denied that any investigative obligation arose pursuant to either article 2 or article 3 ECHR.

The shooting is one of the cases before the Legacy Investigation Branch (LIB) and a renewed investigation could be “many years away”, as there are currently over 1,100 cases under their supervision.

The applicant contended that the respondent had breached the duty owed to him under section 6 of the Human Rights Act 1998, and articles 2 and 3 ECHR, to ensure a prompt, effective and independent investigation into the attack.

Consideration of Articles 2 and 3

The applicant argued that the shooting engaged article 2 and 3 obligations, and that the duty to investigate was revived by the new evidence that had come to light. This included the identification of the suspects in the PONI report and the documentary, as well as the evidence in relation to possible state collusion.

The court agreed, noting that although the identity of the suspects may have been known to some investigators in 1993, there was evidence that this was not passed on to those charged with the investigation of the crime.

Further, the PONI report demonstrated a lack of objectivity on the part of Police Officer 4, and the interview of the prime suspect, as revealed by the documentary, gave rise to real concerns about the collusive behaviour of those investigating the attack.

The court ultimately found that, “The material relied upon, when taken together, casts real doubt on the ability of the original RUC investigation to bring those responsible to justice”.

The court noted that the article 2 investigative obligation exists to protect the rights of individual victims, and acts in the public interest of holding people culpable and maintaining confidence in the rule of law.

Allegations of collusion by security forces in the deaths of citizens bring this issue into, “particularly sharp focus”. A failure by the state to investigate such allegations, promptly and effectively, could reinforce fears that collusion exists, or is acceptable.

Here, the court further noted that a delay in bringing an investigation could be sufficient to breach article 2. In this case, the new material had been in the public domain for five years, and yet it prompted no action by the state.

For reasons of public confidence, as well as the individual rights of the applicant and the other victims, the court determined that this could not be, “an acceptable state of affairs”.

Conclusion

Ultimately, although the court was aware that the LIB has finite resources, and should not prioritise or place certain victims into a hierarchy, the judge concluded that the state failed to carry out an article 2 or 3 compliant investigation into the attack within a reasonable time.

However, in relation to any potential independence, the judge was satisfied that the LIB was capable of carrying out an effective investigation.