The petitioner, the Presiding Coroner of Northern Ireland, sought to enforce a certificate of default made against Soldier F after he failed to adhere to a writ of subpoena requiring him to give evidence to the coroner’s court in Belfast. The defender invited the court to carry out a wide-ranging fact-finding exercise to determine whether he was in contempt and what punishment, if any, should follow.

The case was heard by Lady Carmichael in the Outer House of the Court of Session. Ross KC and Welsh, advocate, appeared for the petitioner and Findlay KC and B Ross, advocate, for the defender.

Onerous service

The petitioner was the presiding judge in an inquest into the deaths of three men who died after soldiers, including the defender, opened fire on their vehicle during a military operation in Coagh, County Tyrone, on 3 June 1991. There was no dispute that Soldier F was involved in planning the operation and that he was one of the soldiers on the ground who opened fire on the vehicle.

On 5 September 2022 the defender applied to be excused from giving evidence to the inquest on medical grounds, which ultimately became a special measures application. While many of these measures were granted, the petitioner did not accede to the application that he should give evidence by way of written questions and answers rather than oral evidence. The defender’s solicitor later wrote to the Coroner Service to inform them that he would not be attending to give evidence.

In a decision dated 2 February 2024, Lady Carmichael found the defender to be in contempt of court. In submissions on mitigation, senior counsel for the defender drew attention to his commendable record of service, including a particular award bestowed on him, and the evidence of three character references from senior soldiers vouching for the onerous nature of his service.

It was further submitted that the inquest had now been completed save for Soldier F’s evidence, and it could not be said that the absence of that evidence would deprive the inquest of the ability to produce a verdict. Attention was also drawn to his mental health problems, including post-traumatic stress disorder, and the increasingly isolated nature of his lifestyle.

Serious matter

In her decision on the appropriate penalty, Lady Carmichael began: “I accepted that the respondent suffered from post-traumatic stress disorder and other mental health problems, and that he also had physical health problems. I accepted that he had experienced traumatic incidents in the course of his service that were of a significant and distressing nature. I had no reason to doubt that at the time of the contempt of court he was distressed by the prospect of giving evidence.”

She continued: “The respondent has a distinguished record of military service over a number of years. I accepted also that the contempt was not one which would merit the most severe penalty that this court could impose, which was deprivation of liberty for two years.”

Turning to the effect of the contempt on the inquest, Lady Carmichael said: “While I accepted that the contempt did not carry the same practical consequence for the inquest as the type to which senior counsel referred, in causing, for example, a prosecution to fail entirely, I gave considerable weight to the circumstance that the respondent decided not to comply with a lawful order that he should give evidence, in the context of an inquest into deaths in a case involving state agents. That is a very serious matter.”

Noting his mental health had recently worsened, she concluded: “The respondent found himself the subject of these proceedings because he decided not to give evidence at the time he was subject to a subpoena requiring him to so, and before any such deterioration had occurred. Had it not been for the respondent’s state of health, previous good character and record of military service, I would have imposed a longer sentence, given the context in which the contempt occurred.”

A period of six months’ imprisonment was therefore imposed on the defender.