16 March 2021 by

Free Derry Nook because it initially appeared © BBC 2011.

Re B’s application [2020] NIQB 76 was a problem to a choice to prosecute a soldier for offences going again to 1972. A part of the small however politically divisive cohort of prosecutions arising out of the Troubles in Northern Eire, Re B offers a traditional instance of how courts method the problem of equity in prison prosecutions for historic offences.

“B” is a former soldier of the British Military who had been serving in Northern Eire. On 31 July 1972, the Military launched “Operation Motorman” to clear so-called “no-go” areas in Belfast and Derry, which had grow to be extremely problematic and harmful for safety forces on the time.

Within the early hours of 31 July 1972, B was a part of an organization of troopers deployed within the Creggan Heights space of Derry. He was armed with a 7.62 x 51 mm calibre Basic Function Machine Gun. At round this time, three native folks had been additionally within the space: Thomas Hegarty, his brother Christopher Hegarty and their cousin Daniel Hegarty. At a while shortly after 4.15 am, there was a burst of machine gun fireplace. When it stopped, Daniel Hegarty lay useless on the road, having been shot twice within the head. He was 15 years outdated. Christopher Hegarty was additionally wounded within the taking pictures, however survived.

An preliminary inquest in 1973 returned an “open verdict“, which is used when verdicts resembling a loss of life from pure causes, an accident or suicide are unavailable. A second inquest was ordered by the Northern Eire Legal professional Basic in 2009, which concluded in 2011 with a unanimous jury finding that not one of the Hegartys had posed any threat once they had been shot at. Quickly after the second inquest, the Coroner made a statutory referral to the then Director of Public Prosecutions for Northern Eire (DPPNI) because it appeared that a number of offences had been dedicated within the taking pictures of the Hegartys. In 2016, the DPPNI determined to not prosecute B in relation to Daniel and Christopher Hegarty. This was successfully challenged, with the choice quashed in 2018 for the DPPNI’s failure to use the right take a look at for graduation of a prison prosecution.

A recent resolution, by a brand new DPPNI, was made in April 2019 to prosecute B for the homicide of Daniel Hegarty and the wounding with intent of Christopher Hegarty. This was then challenged by B and the problem heard earlier than a Divisional Courtroom (Lord Justice Treacy, Mr Justice O’Hara and Sir John Gillen). B challenged the choice on a number of grounds, two of which had been central. B argued that the DPPNI’s resolution had breached his rights beneath Articles 2 (proper to life) and three (proper to not be subjected to torture or inhuman or degrading therapy or punishment) of the European Conference on Human Rights. This was as a result of B argued that the choice (1) successfully elevated the chance to his life and (2) subjected him to inhuman or degrading therapy or punishment.

The primary evidential backdrop to B’s problem was provided in 4 medical studies (which had additionally been provided to the earlier and present DPPNI). At their top, these studies concluded that there was an elevated threat of myocardial infarction and sudden loss of life if B had been prosecuted, but additionally conceded “Nobody can predict when a deterioration in coronary heart failure will happen and/or loss of life in [B]”.

The Courtroom’s resolution

On the outset, Treacy LJ for the unanimous Courtroom closely criticised the problem as being a type of “satellite tv for pc” litigation – a case taken on a problem associated to however not on the coronary heart of the principle case, earlier than a unique court docket to the one which might hear the principle case. Within the prison justice setting, whereas judicial critiques taken out of the prison courts aren’t uncommon, they add delay and procedural complexity in an space the place well timed justice is a elementary concern (see a recent post on this weblog by Joanna Curtis), and are subsequently discouraged for that reason. Furthermore, as Treacy LJ noticed, the whole lot of the decision-making course of on this case had already been tormented by appreciable delay – the Coroner’s referral to the DPPNI had been (on the time of the judgment) made virtually a decade prior. Additional, the crux of B’s proof – that of his well being issues – may very well be handled within the prison courts as a part of the prison course of itself, with out commencing actions in different courts.

The problem beneath Article 2 of the ECHR proceeded on two associated duties: to not take life and to guard life in circumstances the place an actual and instant threat to a person’s life exists. For B, this threat was disclosed within the medical studies. This threat additionally fashioned the idea of the Article three problem – that the prospect of tolerating a trial given B’s well being issues gave rise to inhuman or degrading therapy. Treacy LJ finally dismissed each challenges by pointing to the prevailing safeguards constructed into the prison course of. The Courtroom noticed that B might make use of a number of functions within the prison courts – arguing that he’s unfit to face trial, {that a} trial can be an abuse of course of or argue for particular measures to accommodate his well being issues as a part of the trial course of. This was notably related as the rise in threat to B was unquantifiable – the 4 medical studies highlighted issues, but additionally recognised the futility of precisely predicting or quantifying the chance to B from the trial course of itself.

The Courtroom had been notably unimpressed with the possibly sweeping nature of B’s principal argument – if medical proof pointing to elevated well being dangers as a part of any prison trial may set up breaches of ECHR rights, then it might “confer de facto immunity on any suspect with a medical situation able to equally growing threat consequential upon larger ranges of stress ensuing from a choice to prosecute”.

Remark

The Divisional Courtroom’s judgment is a traditional restatement of two details with longstanding authority: the necessity to keep away from satellite tv for pc litigation and its related delay and complexity within the prison course of, and the distinction between a choice to prosecute and an precise prosecution within the context of ECHR rights. Whereas B had argued that it isn’t within the public curiosity to prosecute somebody with an elevated threat of loss of life, the Courtroom, invoking recent Supreme Court authority, held that the general public curiosity take a look at for deciding whether or not to prosecute was not the identical because the query of whether or not there can be an unjustifiable interference with a person’s ECHR rights.

A closing level of appreciable significance is the Courtroom’s reminder of the structural ensures of equity constructed into the prison course of. This reminder isn’t solely vital by way of the administration of prison justice (i.e. the significance of a good system to guard the substantive rights of suspects and defendants) but additionally for the political and social backdrop from which this case arose. The prosecution of troopers for offences referring to the Troubles is a (numerically) small however more and more explosive cohort of judicial enterprise. No soldier has but been convicted on this cohort, although the litigation surrounding it has been topic to emotive, divisive and infrequently insensitive rhetoric. A authorities bill has handed the Home of Commons and is now within the Home of Lords, which creates restrictions of time and course of for bringing comparable prosecutions, with a brand new responsibility on the Secretary of State to think about whether or not or not the UK ought to make a derogation beneath the ECHR in respect of any abroad operations that are or can be important.

Amid this controversy, it’s value remembering that the investigative responsibility beneath Article 2 of the ECHR contains duties owed to victims’ next-of-kin (see e.g. Al-Skeini v United Kingdom (Application no. 55721/07)), with the household of Daniel and Christopher Hegarty having waited virtually 40 years for the begin of the method of guaranteeing justice.