Pearse Jordan
Madden & Finucane have lodged the following closing written submissions with the Coroner following the conclusion of the evidence at the inquest into the death of unarmed Pearse Jordan, shot dead by a RUC HMSU officer on the Falls Road, 25 November 1992.
PEARSE JORDAN INQUEST
INDEX TO NEXT OF KIN CLOSING SUBMISSIONS
I. INTRODUCTION pp. 1 – 7
II. ISSUES
i) Why Sergeant A had a round in the breech before
he got out of his car pp. 7 – 8
ii) Whether Sergeant A shouted “police, halt” before
he fired pp. 8 – 9
iii) Whether Sergeant A issued any warning that he was
going to fire pp. 9 – 10
iv) Whether the deceased did anything that as a matter of
objective fact, posed a threat to Sergeant A or any other
police officer pp. 11 – 13
v) Whether Sergeant A’s view of the deceased’s hands was
Obstructed pp. 14 – 17
vi) Whether the deceased was turning to face towards Sergeant A
&
vii) Whether the deceased was facing Sergeant A when Sergeant
A fired at him pp. 17 – 37
viii) Whether Sergeant A honestly believed that the deceased did
anything that posed a threat to him or any other police officer pp. 37 – 52
ix) Whether Sergeant A selected automatic fire rather than single
shot deliberately or accidentally pp. 52 – 54
x) Whether Sergeant A was justified in firing in breach of the
RUC Code of Conduct governing the discharge of firearms pp. 54 – 61
xi) Whether Sergeant A could have taken another course of action,
such as using the protection of his armoured vehicle
as an alternative to firing at Pearse Jordan p. 61
xii) The direction in which Sergeant A fired pp. 61 – 63
xiii) The “Wrong Man” pp. 63 – 72
xiv) HMSU Log – Whether the HMSU radio log produced by
Officer Q represents the entirety of the contemporaneous
log produced on 25 November 1992 pp. 72 – 84
xv) Was the earlier part of the HMSU log concealed/destroyed
in order to conceal the fact that police believed that [name
removed], a known PIRA activist, was the likely occupant
of the Ford Orion pp. 84 – 85
xvi) Whether it was appropriate to conduct a debrief prior to the
interviewing of witnesses by CID pp. 85 – 90
xvii) Whether the primary purpose of the debrief was to
facilitate the exoneration of Sergeant A pp. 90 – 126
III. PLANNING AND CONTROL pp. 126 – 146
IV. THE CID INVESTIGATION pp. 146 – 149
V. DISCLOSURE pp. 149 – 150
VI. QUESTIONS pp. 150 – 152
VII. CONCLUSIONS pp. 152 – 157
APPENDIX 1 – Officer V Chronology pp. 158 – 166
APPENDIX 2 – Questions pp. 167 – 173
PEARSE JORDAN INQUEST
NEXT OF KIN CLOSING SUBMISSIONS
I. INTRODUCTION
1. A summary of the facts concerning the death of Pearse Jordan is provided at paragraphs 30 – 42 of Stephens J’s judgment in the judicial review of the 2012 verdict ([2014] NIQB 11). It is important to remember that, as noted in the judgment, most of the essential facts are agreed. Specifically:
I. Pearse Jordan was the driver of a hijacked car stopped by police involved in an anti-terrorist operation.
II. He was running away and trying to escape from police when he was shot dead.
III. He was unarmed, made no attempt to pretend that he was armed, and had nothing in his possession that could have been mistaken for a firearm.
IV. He was shot twice in the back and once in the back of the left arm.
V. He was shot by Sergeant A, who emerged from his car with a round in the breech and fired 5 shots on automatic.
VI. At the time he was shot he was about 3 yards from the hijacked car and 6 yards from Sergeant A.
VII. Sergeant A failed to comply with the RUC Code of Conduct governing the discharge of firearms which he accepted applied to him in the situation.
2. The central issue to be determined by the Coroner is whether the killing of Pearse Jordan was justified, i.e. whether the force used was unavoidably necessary in the circumstances. There are issues about the de-briefing of HMSU officers after the shooting which essentially go to the credibility of the accounts given about how he was shot and are therefore relevant to the central issue. It is further alleged that the operation was not planned and controlled so as to minimise recourse to lethal force, the ‘planning and control’ issue. The adequacy of the police investigation into these matters also arises for consideration.
3. The scope of the inquest has been provisionally defined by reference to the questions identified at paragraphs 46 – 48 of the judgment as the most important questions that arise in determining these issues. These questions are as follows:
[45] In relation to the shooting of the deceased those matters were as follows:
(a) why Sergeant A had a round in the breech before he got out of his car;
(b) whether Sergeant A shouted “police, halt” before he fired;
(c) whether Sergeant A issued any warning that he was going to fire;
(d) whether the deceased did anything that, as a matter of objective fact, posed a threat to Sergeant A or any other police officer;
(e) whether Sergeant A’s view of the deceased’s hands was obstructed; (f) whether the deceased turned around to face towards Sergeant A;
(g) whether the deceased was facing Sergeant A when Sergeant A fired at him;
(h) whether Sergeant A honestly believed that the deceased did anything that posed a threat to him or any other police officer;
(i) whether Sergeant A selected automatic fire rather than single shot deliberately or accidentally;
(j) whether Sergeant A was justified in firing in breach of the RUC Code of Conduct governing the discharge of firearms;
(k) whether Sergeant A could have taken another course of action, such as using the protection of his armoured vehicle as an alternative to firing at the deceased;
[47] In relation to the debrief those factual issues were:-
(a) whether it was appropriate to conduct a debrief prior to the interviewing of witnesses by CID;
(b) whether the primary purpose of the debrief was to facilitate the exoneration of Sergeant A;
[48] In relation to planning and control those factual issues were:-
(a) whether there was a clear line of command within the operations room;
(b) whether the TCG exercised any or any adequate control and supervision over the conduct of officers on the ground;
(c) whether TCG officers or Officer M gave any advice, guidance or directions to the police officers on the ground in relation to stopping the car and the importance or otherwise of stopping the driver;
(d) whether the decision to stop the vehicle by way of a casual stop, as opposed to a vehicle checkpoint, and the absence of any clear direction as to what should happen in the event that the driver ran away caused or contributed to the death of the deceased; and
(e) whether, therefore, the planning and control of the police operation was such as to minimise recourse to lethal force.
4. It is therefore proposed to address those questions seriatim by reference to the documentary and oral evidence available to the Coroner, including the transcripts of the testimony at the 1995, and 2012 inquests. It is also proposed to address certain additional issues that were either not identified separately in Stephens J’s judgment or that have arisen or acquired greater significance since then. In relation to the former, an issue arises in relation to the HMSU log kept by Officer Q as to whether or not entries were made in this log prior to 5.03pm, and if so, whether the entries were concealed or destroyed. A further issue arises in relation to the direction of the shots fired by Soldier A, and specifically whether those shots were fired directly at Call Sign 12 as police officers emerged from that vehicle. The major issue that falls into the latter category is the “wrong man” issue and, specifically, the intelligence material that was produced for the first time late on Friday 4 March 2016 (the name of the subject being disclosed the following week). Before this material was disclosed, there was nothing to undermine the suggestion made by Det. Supt. Lowry that the identification of the deceased in the aftermath of the shooting as [name removed] was a simple case of mistaken identity after the event. (3 March 2016, File 8, Tab 19, p. 2490) At that stage it seemed curious, but there was no evidential basis for regarding it as sinister. The fact that, as confirmed by the formal complaint made on behalf of the person in question, the name given by RUC officers to the press on the night of the shooting, as the name of the deceased, was the same as the name of the person who had been the subject of prior intelligence reports and who had been believed to have been driving the red Ford Orion earlier in the day means that the matter cannot be regarded as anything other than sinister. It is dealt with below.
5. The legal framework within which the questions the Coroner is required to determine should be addressed was considered by the Court of Appeal in the application for judicial review of the verdict in the 2012 inquest: see Re Jordan’s Applications (2014) NICA 76. The Coroner’s directions to the jury in that inquest were impugned and Morgan LCJ dealt with the matter as follows:
[63] Ms Quinlivan criticised the coroner’s directions to the jury for failing to properly direct the jury to consider Sergeant A’s actions against the standard of absolute necessity. In the course of the inquest in the case of Bennett v UK No 5527/08 there had been lengthy reference by the Coroner to the Association of Chief Police Officers manual which featured heavily in the evidence in that case. Counsel contended that that was to be contrasted sharply with the manner in which the Coroner directed the jury in the present case in respect of Sergeant A’s training and the question of the RUC Code of Practice in relation to use of the lethal force. In Bennett the European Court of Human Rights said that:
“It is evident … that the application of the test of self-defence imposes in principle a higher standard of care on firearms trained police officers than, for example, untrained civilians. The coroner devoted some days of the inquest to the taking of evidence on the question of Officer A’s training and she referred in her summing up, at some length to his training and the ACPO manual which guidance had been revised to limit the use of firearms to when absolutely necessary.”
The court concluded that while it might be preferable for an inquest jury to be directed explicitly using the terms “absolute necessity” any difference between the convention standard on the one hand and the domestic law standard and its application to that case on the other could not be considered sufficiently great as to undermine the fact-finding in the course of the inquest or give rise to a violation of Article 2 of the Convention.
[64] The next of kin raised two central complaints about the Coroner’s directions to the jury which it was argued was not compliant with the requirements of Article 2. Firstly, it was argued that the Coroner’s directions to the jury about Sergeant A’s training and experience in firearms and how that should inform their assessment of his evidence given that he shot an unarmed man were inadequate. Secondly, it was contended that the Coroner’s directions to the jury as to the inferences they were entitled to draw from his non-compliance with the relevant RUC code of conduct relating to the use of lethal force were inadequate and misleading. Counsel took particular issue with the following passages in the coroner’s directions.
“So, members of the jury, you can see that on the one hand it is being suggested that the shooting was incapable of being justified in the circumstances in which Mr Jordan was unarmed and not positively identified by Sergeant A as being armed having regard to the wealth of experience that Sergeant A had. On the other hand it is being suggested that his training and experience led him to act in the way that he did having regard to the threat that he believed he was confronted with. It is a matter for you members of the jury as to which interpretation of the facts, if either is the more probable”.
“You will recall that whenever A was giving his evidence it was put to him that he did not in fact comply with the instructions on the day in question and that he agreed he did not. It is, of course, quite proper ladies and gentlemen that you should have regard to the instructions whenever you are considering the reasonableness or otherwise of Sergeant A’s actions … but you must be aware that even if you find that Sergeant A acted in breach of those instructions it does not necessarily follow that he was not justified in law in resorting to force. In other words an officer might be in breach of his instructions yet still be acting within the law when opening fire.”
[65] The RUC code in Clause 2(2) states that the use of force by an officer is subject to all the following conditions:
(a) it is necessary i.e. the objective cannot be achieved in any other way;
(b) the amount of force used will be reasonable in the circumstances;
(c) only the minimum amount of force necessary to achieve the objective will be used, and
(d)the amount of force used will be in proportion to the seriousness of the case.
These conditions clearly point to a test of absolute necessity. Amongst the specific examples of occasions where a firearm could be used after due warning is Clause 3(5):
“(e) If there is no other way to protect yourself or others from the danger of being killed or seriously injured.”
Again this is consistent with a test of absolute necessity. Clause 4 provides that in general the warning must be given before firing and should be as loud as possible. If necessary or practical it should be repeated. It must make clear that it is a police officer speaking, give clear unambiguous instructions and make it clear that fire would be opened if the instructions are not obeyed. These ingredients may be contained in a very brief warning e.g. “Police stop or I will fire.”
[66] Since we are dismissing the appeal against the judge’s decision to quash the verdict thus necessitating a fresh inquest, it is not necessary to reach a final conclusion on the question whether the Coroner’s directions to the jury failed to adequately explain the law and failed to properly direct the jury on the importance of the RUC code and its terms and conditions. Any new Coroner coming fresh to the inquest will have to determine the outcome of the inquest in the light of the evidence in that inquest. Nevertheless we accept the next of kin’s contention that the directions failed to remind the jury sufficiently and clearly about the meaning and significance of the RUC code on the use of the lethal force. In particular we agree that the Coroner should have reminded the jury more fully and more clearly of the requirements imposed by the code and the ways in which the actions of Sergeant A disregarded or may have disregarded the requirements and demands of the code. In particular, the jury needed to understand and appreciate the significance of the requirements of the code. The manner in which the Coroner directed the jury had the potential to mislead the jury into believing that it was open to the jury to accept that his training and experience may have led to his acting in the way in which he did in the light of the threats he believed he confronted. However, the true issue was whether, in light of the higher standard of care demanded of a trained and experienced police officer and in light of the requirements demanded by the code before a decision to use lethal force was made, Officer A was acting properly in self-defence when he shot dead the deceased. The code in effect requires that the use of lethal force is unavoidably necessary. This accords with the concept of absolute necessity under Article 2 as explained in Bennett and the other Strasbourg case-law. The Coroner’s directions to the jury may not have brought these matters sufficiently to the attention of the jury. (Emphasis added)
6. In a nutshell, the burden is on the police to satisfy the Coroner that the use of lethal force by Sergeant A was justified in the sense of being unavoidably necessary. Given that the deceased was shot in the back by a highly trained and capable firearms officer at a time when the deceased was unarmed and running away from him, it would require particularly compelling evidence to discharge that burden. Such evidence is, in our submission, conspicuous by its absence.
II. ISSUES
THE SHOOTING OF THE DECEASED
i) Why Sergeant A had a round in the breech before he got out of his car
7. According to Force Order 58/1992 (per Insp. Brown, statement of 19 October 2012, read on 3 March 2016, File 8, Tab 21, p. 2557), it is permissible to carry a round in the breech only if the circumstances justify it. According to the police evidence, call signs 8 and 12 were instructed to carry out a “casual stop”, using the lack of rear tail lights as an excuse. It is contended that the failure of the Orion to stop was not sufficient to justify having a round in the breech.
8. In 2012 Sergeant A was questioned about this issue before the Force Order was made available, and was shown a copy of the Yellow Card applicable to the military which states:
“…Unless you are about to open fire no live round is to be carried in the breech and the working parts must be forward. Company Commanders and above may, when circumstances in their opinion warrant such action, order weapons to be cocked, with a round in the breech where appropriate, and the safety catch at safe.”
9. It is of course accepted that the Yellow Card did not govern Sergeant A’s conduct, it is however indicative of the circumstances which justify having a round in the breech. It is noteworthy that soldiers were not permitted to have a round in the breech unless about to open fire. The fact that Sergeant A had a round in the breech as he exited the car and before he could make any observations about Pearse Jordan’s actions, indicative of his state of mind, are indicative of a readiness to deploy lethal force even prior to emerging from his vehicle.
ii) Whether Sergeant A shouted “police, halt” before he fired;
10. Sergeant A is the only witness to suggest that he did shout this. Officers B and D claim to have heard shouting but were not in a position to say what was shouted or who was doing the shouting. Insofar as Officer B was concerned he was seated in the rear seat of the call sign 8’s vehicle and had opened the rear nearside door and we know, from Sergeant A’s evidence and the ballistics evidence, that Sergeant A was located at the rear of this vehicle. No one could have been in a better position to hear with Sergeant A shouted than Officer B yet he does not corroborate Sergeant A’s account. Officers C, E and F heard no warning or any shouting. None of the civilian witnesses heard anything to this effect. The Coroner should conclude that the evidence points to the conclusion that Sergeant A did not shout “police, halt” before he fired. In any event, as outlined further below, the warning he claims to have shouted was not, as required by the RUC Code of Conduct, a warning that he was going to fire.
iii) Whether Sergeant A issued any warning that he was going to fire
11. Neither Sergeant A nor anyone else suggests that Sergeant A issued any warning that he was going to fire. Whilst Officers B and D claim to have heard shouting as outlined above, neither claimed to hear a warning that A was going to fire. Officer C could not recall any warning. (27 September 2012, File 2, Tab 5, p. 534) Officer E did not hear one. (9 October 2012, File 3, Tab 8, p. 986) Nor did Officer F. (File 3, Tab 9, pp. 1173 – 1174) The civilian witnesses say there was no warning.
12. The failure to shout a warning in the circumstances as Sergeant A describes them, is a significant matter in this case and is an express requirement of the RUC Code of Practice, which makes clear that:
“In general a warning must be given before firing and should be as loud as possible. If necessary or practical it should be repeated. It must:
(a) make clear that it is a police officer speaking;
(b) give clear, unambiguous instructions;
(c) make it clear that fire will be opened if the instructions are not obeyed.
These ingredients may be contained in a very brief warning eg “Police stop, or I will fire”. Exhibit J3, Core Bundle, Item 5, paragraph 4
13. The circumstances in which a police officer is permitted to open fire without warning are more restrictive than the circumstances in which an officer is permitted to open fire following a warning and it will be submitted that none of those circumstances were applicable in the instant case. Thus the Code provides:
“You may fire without warning. (1) When hostile firing is taking place in your area and a warning is impracticable.
(a) against a person using a firearm in circumstances which endanger life; or
(b) against a person carrying what you can positively identify as a firearm if he is clearly about to use it in circumstances which will endanger life or cause serious injury; or
(c) at a vehicle if the occupants open fire or throw a bomb at you or those whom it is your duty to protect, or are clearly about to do so; or
(d) where a warning would increase the risk of death or serious injury to you or any other person; or
(e) you or some other person has already come under armed attack;
and there is no other way to protect yourself or others from the danger of being killed or seriously injured.” (Emphasis added)
14. In relation to whether Sergeant A had an alternative method of protecting himself, see further below where we address whether Sergeant A could have taken another course of action, such as using the protection of his armoured vehicle as an alternative to firing at the deceased. Thus it is submitted Sergeant A fired without warning in circumstances which amounted to a clear breach of the RUC Code of Practice.
iv) Whether the deceased did anything that, as a matter of objective fact, posed a threat to Sergeant A or any other police officer
15. It is common case that the deceased was unarmed. He was not, therefore, capable of posing a threat to Sergeant A or his colleagues, as is now accepted by Sergeant A. (1 March 2016, File 6, Tab 14B, p. 1929 line 26 – p. 1930 line 1)
16. His actions indicated that he was intent on escaping from police, first by accelerating away from them and then by running away from the car. Objectively, he was fleeing from the police, not attacking or threatening them.
17. It is of particular significance that, even on the account offered by the person who claims to have perceived a threat – Sergeant A – the deceased did nothing that, as a matter of objective fact, could seriously be regarded as posing a threat to Sergeant A or any other police officer.
18. In particular, Sergeant A saw no weapon and, according to him, the deceased did not even pretend to be armed or to reach for a weapon or raise his hands or arms towards A: in other words, A saw no indication of either a firearm or an intention to use a firearm. (16 October 2012, File 6, Tab 14B, p. 1749, confirmed on 1 March 2016, File 6, Tab 14B, p. 1931, lines 9 – 17) Even on A’s account, the deceased did nothing more than turn and face A with his arms down by his side. (17 October 2012, File 6, Tab 14B, pp 1790; 1805 and 1870, confirmed on 1 March 2016, File 6, Tab 14B, p. 1931, lines 23 – 24) The following passage from Sergeant A’s testimony sums it up:
“Q. On your own account, Mr Jordan not only wasn’t armed but didn’t even pretend to be armed; isn’t that right?
A. Yes
Q. And he didn’t reach for a weapon; isn’t that right?
A. That’s right
Q. Put another way, you saw no indication of either a firearm or an intention to use a firearm; is that right?
A. No, I was just faster and better trained
Q. Could you just focus on the question that I am asking you. Isn’t it right that you saw no indication of either a firearm or an intention on Mr Jordan’s part to use a firearm?
A. That’s correct.
Q. In fact, on your own account he did nothing more than face you with his arms by his side?
A. That’s correct.”
(1 March 2016, File 6, Tab 14B, p. 1931, lines 9 – 25)
19. Officer B didn’t see the deceased do anything of a threatening nature. (27 September 2012, File 2, Tab 6, p. 678)
20. Officer C didn’t see the deceased do anything (27 September 2012, File 2, Tab 5, p. 557) or indeed hear anyone at the scene offer any justification for the shooting. (File 2, Tab 5, p. 563)
21. Officer D saw nothing that justified the deceased being shot. (1 October 2012, File 2, Tab 7, p. 800 and 24 February 2016, File 2, Tab 7, p. 885)
22. Officer E saw no weapon. (9 October 2012, File 3, Tab 8, p. 974) He said that the deceased had his hands in the area of his waistband to the right side and he had a “firm belief” that the deceased was carrying a firearm. (File 3, Tab 8, p. 941) When questioned at this inquest, he claimed that the way the deceased turned with his hands was sinister. (25 February 2016, File 3, Tab 8, p. 1086) However, when questioned about the hands in 2012, E said that he saw they were empty and there was “nothing sinister” about the deceased’s hand movements, like reaching into the waistband. (9 October 2012, File 3, Tab 8, p. 980 line 25 – p. 981 line 15) Significantly, although E was one of the first officers to attend the deceased when he collapsed, he did not search the deceased for a weapon. (File 3, Tab 8, p. 981 line 29 – p. 982 line 5) In fact, although steps were taken to search the vehicle for a weapon or explosives, no officer appears to have taken the rudimentary step of checking whether the deceased had a weapon.
23. It is also the case that Officer F saw no gun or anything which looked like a gun. (2 October 2012, File 3, Tab 9, p. 1178 lines 10 – 13) He said that the deceased’s hands were never raised or pointed towards Sergeant A. (ibid. p. 1178, lines 28 – 30) He did suggest that he thought at the time that the deceased was going for a weapon (2 October 2012, File 3, Tab 9, p. 1184 lines 14 – 17) and that he himself was about to shoot when he heard the shots. (File 3, Tab 9, p. 1227 lines 5 – 8) However, while he may have been ready to fire, the suggestion that he was about to shoot is contraindicated by other parts of his own testimony (discussed in more detail below).
24. Soldier X saw the deceased running across the road and then heard a shot. That was the sequence, as appears from his statement (File 4, Tab 11, pp. 1391 – 1392) and confirmed in his testimony at this inquest. (29 February 2016, File 4, Tab 11, p. 1428 lines 10 – 24) His view of the city-bound traffic, where he was positioned, was obstructed and he first saw the deceased as he crossed the central line. (29 February 2016, File 4, Tab 11, p. 1425 lines 16 – 21) He saw no pirouetting or spinning. (1 October 2012, File 4, Tab 11, p. 1416 lines 23 – 25) Nor did he see Pearse Jordan perform any manoeuvres or changes of direction of any sort. (29 February 2016, File 4, Tab 11, p. 1425 lines 24-29)
25. The civilian witnesses all testify that all the deceased did was to get out of the Orion, turn to his right to run countrywards and then run across the road, after he apparently saw Call Sign 12 ahead of him.
26. Thus, as a matter of objective fact, Pearse Jordan did nothing which posed a threat to Sergeant A or any other police officer.
v) Whether Sergeant A’s view of the deceased’s hands was obstructed
27. Sergeant A’s evidence is to the effect that he was unable to see the deceased’s hands, stating in 2012 that “I could see his upper body but I couldn’t see the bottom part of his arms”. (16 October 2012, File 6, Tab 14B, p. 1737 lines 14 – 16) Even on A’s account, he could see the deceased’s arms and his recollection was that his arms were “straight down” (ibid. p. 1737 lines 14 – 23), with the obvious inference that the hands were also “straight down”. On A’s account, the deceased’s hands were never raised towards him (A), the deceased never pretended to go for a gun (16 October 2012, File 6, Tab 14B, p. 1749 lines 8 – 10 and 1 March 2016, File 6, Tab 14B, p. 1931 lines 9 – 11) and A never saw any weapon in the deceased’s hands. (16 October 2012, File 6, Tab 14B, p. 1748 lines 24 – 30)
28. Nevertheless, Sergeant A relies upon his inability to see Pearse Jordan’s hands in seeking to justify his contention that he perceived him as a threat. That contention is discussed further below. The determination of the related question whether Sergeant A’s view was obstructed depends on an assessment of his credibility. It is submitted that Sergeant A cannot be regarded as a credible witness for a number of reasons. In the first instance, Sergeant A is one of a number of witnesses whose credibility is significantly undermined by their conduct in 1982. Sergeant A is a witness who has admitted making a false statement in relation to the Mullacreevie Park shootings in 1982. (17 October 2012, File 6, Tab 14B, p. 1852) He accepts that he “went along with” a completely fictional account of Seamus Grew and Roddy Carroll crashing through a police checkpoint and injuring a police officer in the process before other police gave chase. (17 October 2012, File 6, Tab 14B, p. 1852) This was a statement made to the police that carried the usual formal warnings and was liable to be used for court purposes. He confirmed that he had been prepared to tell whatever lies were suggested to him (17 October 2012, File 6, Tab 14B, p. 1853) and was “perfectly happy to tell lies if need be right the way through, including court”. (ibid. p. 1855 lines 17 – 19) None of the officers involved in that event had “any problem” lying to the Coroner’s Court. (ibid. p. 1855) Sergeant A also agreed that he had tampered with evidence in the form of the HMSU radio transmissions log. (ibid. p. 1853 lines 12 – 28)
29. Sergeant A has also testified in this inquest that the officers on the ground, himself included, were not provided with the intelligence that [name removed], a known IRA activist, had been in the Ford Orion car which they were instructed to stop. Given the evidence of AA, in particular, to the effect that the intelligence about [name removed] driving the car would have been disseminated to the HMSU officers on the ground (discussed below under the heading “The Wrong Man”), Sergeant A’s denial that he was aware of this information cannot be accepted at face value and further undermines his credibility.
30. Against this background, Sergeant A cannot be regarded as a generally credible witness of good character. This is a matter which the Court should have regard to in determining the reliability of his evidence on the issue of whether he could see the deceased’s hands, which it is submitted should in any event be rejected, for the reasons advanced further below.
31. At the last inquest, Sergeant A initially gave evidence to the effect that he had no issue with the plan on which he had marked his own position and that of the deceased when he fired. (15 October 2012, File 6, Tab 14B, p. 1692 lines 9 – 13) He had of course marked this plan in 1992 in response to questions from CID officers investigating the incident. He specifically confirmed that the original X marked the location of the deceased when he opened fire. (ibid. p. 1693 lines 1 – 5) The significance of this evidence is that, according to the plan, there was nothing to obstruct his view of the deceased and specifically nothing to obstruct his view of the deceased’s hands.
32. However, when Sergeant A found himself in difficulty explaining what exactly prevented him from seeing the deceased from head to toe, he re-drew his plan, drawing a new X in red on the plan (now Exhibit C2), which moved the deceased to a position that put the edge of the Orion’s roof between him and Sergeant A. Sergeant A’s testimony on this issue at the last inquest is telling and should be reviewed in full.
33. By way of summary, on 16 October 2012, (File 6, Tab 14B, p. 1742 line 30), he was asked what exactly was obstructing his view. He said “the roof of the cars” (ibid. p. 1743 line 1) but he had to accept that the roof of the police car was to his left, so it couldn’t have been that, and the roof of the Orion was to his right. (ibid. p. 1743 lines 2 – 15) He accepted that the map he himself drew the day after the shooting would suggest that his view was between the two rooves and that neither of the rooves obstructed his view. (ibid. p. 1743 lines 26 – 29)
34. Following further examination, he drew the new X in red to show the position of the deceased when he was shot. (File 6, Tab 14B, p. 1747 lines 13 – 18) He said that when he drew the first X he didn’t appreciate the importance of the X and the fact that it didn’t tally with his suggestion that he couldn’t have a full view of the deceased. (ibid. p. 1748 lines 6 – 16)
35. As well as amending his map in order to fit his explanation a further factor pointing towards the conclusion that Sergeant A had an unobstructed view of the deceased is that the fatal shot (the lower and first of the two back wounds) hit the deceased 46 inches above the soles of his feet. According to Professor Crane, the shots would have been aimed at a similar level. (8 October 2012, File 11, Tab 43, p. 3484)
36. Although it is unsafe to draw too many inferences from the internal trajectory of the bullets (see Dr Cary’s evidence below and Professor Crane’s evidence on 8 October 2012, at File 11, Tab 43 p. 3484 – ”you just have to draw not too many inferences from the direction of wounds through the body”), this round travelled upwards through the body at an angle of about 15 degrees (Press, autopsy report, File 11, Tab 42, p. 3439), not downwards as might be expected if Sergeant A had fired from an elevated level in order to clear an intervening obstruction such as the roof of a car. On A’s account, the deceased was about 3 yards from the door of the Orion when he was shot. (16 October 2012, File 6, Tab 14B, p. 1766 line 20 – p. 1767 line 9)
37. The combination of these factors suggests that Sergeant A was indeed firing over the boot of his own car and between the rooves of his car and the Orion at the deceased when the deceased was in a position in or near the middle of the road and not over the roof of the Orion as he now tries to suggest. In other words, Sergeant A had a clear view of the deceased, including his hands, unobstructed by the roof of the Orion, thus undermining his purported justification for shooting the deceased.
vi) Whether the deceased turned around to face towards Sergeant A
vii) Whether the deceased was facing Sergeant A when Sergeant A fired at him
38. These issues can conveniently be considered together.
39. The resolution of both depends on the credibility of Sergeant A as well as that of Officers D, E and F.
40. Assessment of their credibility on this issue involves consideration of the background as well as particular factual matters pointing to the conclusion that their evidence cannot be relied upon.
41. Officers D, E and F are not independent witnesses. They are part of the same close-knit police unit, engaged in the kind of work that inevitably creates exceptionally strong bonds of loyalty. The consequences for Sergeant A of Officers D, E and F not supporting him in this account of the deceased’s actions would be grave, because the basis on which he has justified his own actions is that the deceased turned to face him. Sergeant A was the leader of this group. He knows he can depend on his former colleagues for support “in every aspect”. (17 October 2012, File 6, Tab 14B, p. 1845 line 18 – p. 1846 line 5)
42. There is a history of members of the HMSU fabricating false accounts to create a “cover story” and every member of every unit involved, together with their superior officers, agreeing to subscribe to it, even where that entailed making false statements. It is not disputed that, in 1982 following the Stalker Sampson incidents, all the members of the HMSU units involved in those incidents told lies about their roles. Nor is it disputed that the trial judge in the McCauley trial arising out of the “Hayshed” incident at Ballynerry Road declined to rely on the evidence of any of the officers who testified before him, including the officer known as Inspector M in this case who “de-briefed” all the officers whose evidence is now impugned.
43. It is not for the next of kin to establish how the account of Sergeant A firing when the deceased turned to face him came to be adopted but it is reasonable to attribute its genesis to the misapprehension on the part of D, E and F as to the location of the entry wounds to the deceased. At the scene, D, E and F formed the impression, erroneously, that the deceased had been shot in the front of the chest, not the back.
44. Officer E saw what he believed to be an entry wound in the front and an exit wound in the back. (9 October 2012, File 3, Tab 8, p. 975 lines 11 – 24) Officer D also saw the bullet wound “in the chest”. (24 February 2016, File 2, Tab 7, p. 876 line 6)
45. Officer F saw the same thing and this is recorded in his interview notes (File 3, Tab 9, p. 1132) but not, curiously, in his later statement (File 3, Tab 9, p. 1156), which refers only to him seeing a serious chest wound, as opposed to an entry wound. At the last inquest, Officer F initially claimed that, at the scene, he did not know if the deceased had been shot in the front or the back. (2 October 2012, Tab 3, File 9, p. 1200 lines 14 – 17) It is unlikely that he would forget such a matter. This is more likely to have been an attempt to distance himself from that information, given its role in the account of the shooting that subsequently developed. Officer F was asked about this at the current inquest. It is submitted that his answers were unconvincing. They are reproduced below for ease of reference.
Q: Do you remember at the last inquest trying to suggest that when you gave this account of Mr Jordan burling around you didn’t actually know, you weren’t aware that Pearse Jordan had been shot in the front?
A: Sorry, could you repeat that, please?
Q: I will take you to this. At page 39 of the transcript, the same document you should have there?
A: 39, yes
Q: Line 10, well maybe start at line 3: “This suggestion about burling around clockwise, I have to suggest to you has just been made up”, right?
A: Yes
Q: At line 10 I said: “Could it have been made up because you thought Mr Jordan was shot in the front”? And you said: “I didn’t make it up”.
I asked the question: “Did you think that Mr Jordan was shot in the front?” You say: “At that stage …”, in other words when you were giving your account “…I didn’t know. I asked the question again: “You had no idea whether the person had been shot in the front or the back?” You said: “No”. Why did you say that?
A: Ehh… well, you see when I examined the body I thought it was an entry wound, not an exit wound.
Q: Yes?
A: I was wrong, but I am no expert. But there was certainly no story made up about a turn when he turned towards call sign 8 –
CORONER: Sorry, that’s not the point, Officer.
THE WITNESS: Sorry, I’m maybe getting confused.
CORONER: Officer, the point that Mr Macdonald is making, maybe you would address it, is that you said at the last Hearing that you had no idea whether he had been shot in the front or the back and Mr Macdonald’s point is that you believed that that’s incorrect and that you believed from your examination of Pearse Jordan that he had been shot in the front?
THE WITNESS: Yes, that’s because I thought it was an entry wound.
CORONER: Oh I know, but that, your answer is “no”, you had no idea whether he had been shot in the front or in the back, you answered: “No”. Well, on your evidence that’s not right because you thought that he had been shot in the front?
THE WITNESS: I am maybe getting confused over the –
CORONER: Well, maybe, sorry, I will just, just so we are absolutely under no illusion. As I understand it, you examined Pearse Jordan’s body after the shooting?
THE WITNESS: Yes
CORONER: You formed the view that the bullet had entered his chest?
THE WITNESS: Yes, my Lord
CORONER: Right. Mr Macdonald asked you that at the last Hearing, he said: “Did you think that Mr Jordan was shot in the front” and you said: “At that stage I didn’t know”?
THE WITNESS: Yes
CORONER: You did know because you examined the body and in your view you had formed the view that he had been shot in the front?
THE WITNESS: Yes
CORONER: You are then asked the question: “You had no idea whether he had been shot in the front or in the back” and you said: “No”. You did have an idea because your idea was that the bullet had entered through the front, that’s the point –
THE WITNESS: Yes, that was my, yes, I am sorry, if I have got –
CORONER: Sorry, so we are clear now. So what Mr Macdonald is putting to you is that the passage, those answers to those questions are obviously wrong?
THE WITNESS: Yes, that would appear so, reading it again, yes.
CORONER: Yes.
MR MACDONALD: The answer was not just wrong but it was actually an untruthful answer, wasn’t it, because –
A: No —
Q: — you knew perfectly well that you had, it must have been a pretty graphic experience –
A: It was, yes, it was traumatic, it was traumatic for me.
Q: — seeing this, what you thought was an entry wound on the front?
A: I have no doubt about that.
Q: Right?
A: But I am also not an expert on, you know, bullet entries and exits and I did make my mind up –
Q: This isn’t about whether you were right about your examination, it is a question of what you believed to be the case and all I’m suggesting to you is that you tried to indicate to the jury on the last occasion that you had no idea at that stage when you were giving your account of the burling motion –
A: Yes.
Q: — that Mr Jordan had been shot in the front. And I am suggesting to you that the reason you felt confident about giving that account was because you had your statement at this stage and you had read the statement before this inquest in which there is actually no reference to the entry, this, the wounds in the chest being –
A: Yes, I have seen that, yes.
Q: — an entry wound?
A: Yes:
Q: But of course we had the notes of your interview prior to this statement in which you had said that this was an entry wound, as far as you were concerned?
A: Yes, that’s correct.
Q: In other words I have to suggest to you that you were deliberately telling the jury something that you knew to be untrue?
A: No, I wasn’t telling any lies, no.
Q: Well, what is the explanation for that?
A: I don’t have an explanation. I examined the body and seen the wound and thought it was an entry and exit and the fact that it’s not mentioned which I have read on the statement saying that is a serious wound to the front and the back I can’t account for that but it wasn’t a made up story.
Q: Right. Of course by the time you made your statement you would have known that the, what you thought was an entry wound was actually an exit wound and that Mr Jordan had been shot in the back?
A: I didn’t know that until, I think it might have been yourself told me that at the last inquest, I think, my Lord.
Q: You didn’t know until three years that Mr Jordan had been shot in the back, not the front?
A: I don’t recall, my Lord.
(File 3, Tab 9, p. 1290 line 23 – p. 1295 line 4)
46. It is this misapprehension on the part of D, E and F that is likely to have given rise to the account of the shooting that originated at the scene and then developed, involving the deceased turning to face Sergeant A in an “aggressive” manner.
47. The officers did talk to each other at the scene. A told E that he had fired the shot. (9 October 2012, File 3, Tab 8, p. 941 lines 13 – 24) There is no reason why E would not have told A that, as he believed, the deceased was shot in the front. F told the last inquest that he didn’t speak to A at the scene and it was later at Arizona St that he heard who had fired the shots. (2 October 2012, File 3, Tab 9, p. 1210 lines 13 – 17) However, Officer G has said in a statement that F told him at the scene that it was A who had fired. (File 10, Tab 38, p. 3313) When F was asked at the last inquest how this could be the case if he didn’t know who had fired until later in Arizona St, he said he couldn’t give an explanation for it. (2 October 2012, File 3, Tab 9, p. 1215 lines 14 – 21) It is reasonable to conclude that F and A did speak to each other at the scene.
48. Officers A, E and F also travelled from the scene together back to Lisnasharragh, along with Officer L. L said they didn’t talk about the shooting. (File 8, Tab 28A, p.2735 (4)) E said they did, including “the circumstances and how it happened” (9 October 2012, File 3, Tab 8, p. 987 lines 17 – 24), although at this inquest he tried to suggest that they hadn’t talked about the circumstances because “there was no reason to” (25 February 2016, File 3, Tab 8, p. 1102 lines 23 – 25), before saying they had a “general conversation around what had happened” (ibid. p. 1103, line 24) when his answers at the last inquest were drawn to his attention. A said they didn’t talk about it in any detail. (17 October 2012, File 6, Tab 14B, p. 1841 lines 7 – 11) F said at the last inquest that they had no “in-depth” talk about it. (2 October 2012, File 3, Tab 9, p. 1219 line 12) Now he has “no recollection of any chat in the car at all”. (25 February 2016, File 3, Tab 9, p. 1298 line 24) At the very least, they certainly had an opportunity to discuss it and it is submitted that it is inherently implausible that they did not discuss such a significant event.
49. All the officers met at the debriefing. Significantly, Sergeant A spoke first (Q notes, Core Bundle, Tab 3, p. 3) and gave his account of the deceased turning around towards him “with both hands down towards hip”. (V notes, Core Bundle, tab 7) Thus giving his account to his fellow officers before anyone else had committed themselves to an account. Officers D and F followed and supported that account. Officer E is not recorded as saying anything.
50. As a result of the delay in the CID interviews, the failure to separate the officers involved and the debrief taking place in the manner it did, all the officers were aware of Sergeant A’s account before they made statements to the CID. The significance of this is discussed further below in the submissions in relation to the debrief, whether it was appropriate and whether its purpose was to secure the exoneration of Sergeant A.
51. Sergeant A claimed that the deceased had also been looking round at him over his (the deceased’s) right shoulder before he turned around completely. This does not sit easily with his account of the direction in which the deceased was running, either towards the original X or the new X. On either account (neither of which is accepted), it would have been more natural for the Deceased to look over his left shoulder if he were attempting to look at a call sign that was more to his left than his right.
52. Officer D said the deceased was facing the direction in which he was running, before he made contact with the car. (1 October 2012, File 2, Tab 7, p. 784 lines 19 – 29) Officer F couldn’t say what direction he was looking in but couldn’t recall seeing him look back. (2 October 2012, File 3, Tab 9, p. 1170 lines 15 – 27) Officer E did claim to see this but the marks on his map suggested that if the deceased were looking over his right shoulder he would have been facing call sign 12 rather than call sign 8 as he was suggesting. When challenged about this Officer E’s response was to say that his map was misleading. (25 February 2016, File 3, Tab 8, p. 1081 line 20)
53. The reasons proffered by Officers D, E and F for the deceased’s alleged spinning movement prior to being shot conflict with Sergeant A’s account. D thought the collision with call sign 12 caused the “spin”. (1 October 2012, File 2, Tab 7, p. 781 line 19 – p. 782 line 2) E also thought it was possibly the result of the impact with the car. (9 October 2012, File 3, Tab 8, p. 939 lines 7 – 24) F said the deceased ran straight into the car. (2 October 2012, File 3, Tab 9, p. 1198 lines 22 – 28) When asked whether it was this impact that caused the “burling around clockwise” or just a “voluntary pirouetting”, F said “it probably could have been either”. (2 October 2012, File 3, Tab 9, p. 1199 lines 16 – 20) However, Sergeant A said the deceased never even reached the car (16 October 2012, File 6, Tab 14B, p. 1744 lines 7 – 22), as appears from both the original X and the new X on his plan. He made no connection between the arrival of Call Sign 12 and the deceased’s movements. (17 October 2012, File 6, Tab 14B, p. 1879 line 30 – p. 1880 line 3) Had he done so he would have had to acknowledge that his account involved him shooting directly at Call Sign 12 at a time when Officers D and E had emerged from the vehicle, an entirely implausible account which Officers D, E and F are forced to make in order to lend some corroboration to Sergeant A.
54. As for the part of the car where it is suggested that the deceased made contact, Officer D said it was at the passenger side headlight. (1 October 2012, File 2, Tab 7, p. 772, lines 20 – 22) E said it was the headlight on the driver’s side. (9 October 2012, File 3, Tab 8, p. 938, lines 22 – 24) F said that it was “more or less at the centre”. (2 October 2012, File 3, Tab 9, p. 1170 lines 9 – 10) Yet another conflict in the police accounts is that E told the Coroner at the previous inquest that the deceased struck the car with his left leg (9 October 2012, File 3, Tab 8, p. 945 lines 3 – 7), but he said at the debrief (Chief Inspector V’s note, Exhibit J5, Core Bundle Tab 7, para 25) and in his first statement (3 December 1992, File 3, Tab 8, p. 923) that it was the right leg.
55. More significantly, all these officers put Call Sign 12 directly in Sergeant A’s firing line. It is inherently implausible that Sergeant A would have fired directly at the deceased if Call Sign 12 had been immediately behind him, particularly in circumstances where the car lights were on and the vehicle would thus have been clearly visible to Sergeant A. Yet Officers D, E and F all insist that the deceased was at the front of their car (and, therefore, directly in front of them, more or less in line with them and Sergeant A) when they heard the shots, yet none have ever described shots as having been fired in their direction, nor expressed any concern that this occurred. This alone is sufficient reason to disbelieve their accounts. Their car may very well have blocked the deceased’s intended path countrywards, away from Call Sign 8, but acceptance of the suggestion that the deceased made contact with Call Sign 12, whether or not in such a way as to cause him to spin around, requires the court to accept that Sergeant A fired in the direction of his colleagues.
56. The manner in which the deceased is said to have turned is also difficult to understand. It was supposed to be a dynamic (Officer E), (25 February 2016, File 3, Tab 8, p. 1050 line 20), aggressive (E) (9 October 2012, File 3, Tab 8, p. 983 line 28) burl (Officer F) (25 February 2016, File 3, Tab 9, p. 1246 line 22). Common sense tells us that the arms of a person turning fast are liable to flail, as Professor Crane pointed out (22 October 2012, File 11, Tab 43, p. 3514 line 2) yet on Sergeant A account the deceased’s hands stayed “down by his side”. (17 October 2012, File 6, Tab 14B, p. 1790 lines 22 – 25)
57. Officer F‘s account of the deceased’s movements at the front of Call Sign 12 is also contrary to common experience of natural human reactions. Anyone running into a car is naturally inclined to reach out to save himself if he can do so or to lose balance and fall forward if he makes contact. None of this happened on F’s account:
Q: “He ran straight into us at the centre of the vehicle, at the front” isn’t that right, these are words that you used today?
A: Yes, he came into contact with our vehicle sorry, yeah.
Q: But curiously he didn’t fall over the bonnet?
A: No.
Q: We know that he didn’t suffer any injuries from postmortem report, you wouldn’t know that but I can tell you that?
A: Yes, okay.
Q: He didn’t do what you might expect a person to do who had just run into a police vehicle or any vehicle, did he?
A: Could you maybe explain? I don’t know what you …
Q: If a man runs into the front of a vehicle you would expect that man to at least lose his balance or fall to the bonnet.
MR MONTAGUE: That doesn’t follow and my learned friend can’t give evidence about it. It would depend of course upon the nature of the collision that is being referred to or the impact.
THE CORONER: Yes, I understand that Mr Montague, but I think probably Officer F will be in a situation to maybe refute that if he feels that isn’t a suggestion that he could agree with.
MR MONTAGUE: Well I don’t want to labour the point and I am bound by your ruling Sir, but I think it is unreasonable for my learned friend to put something as a fact that it was unusual that he didn’t fall over the bonnet or stumble or lose his balance or otherwise, that would depend on its very nature upon the nature of the impact.
THE CORONER: Well perhaps Mr Macdonald, if we can think about a way of asking that question, it is being put to or a suggestion that is being put to you Officer F, you understand that, it isn’t being stated as a matter of fact by Mr Macdonald, it is a suggestion that is being put to you.
MR MACDONALD: You are not suggesting that he ran across the front of your vehicle from left to right and brushed the bumper on his way past or anything like that , are you?
A: No, my view of it was that he came from his vehicle straight into ours.
Q: So he ran straight at your vehicle?
A: Yeah.
Q: And he ran straight into the vehicle or the vehicle ran straight into him but somehow it didn’t cause him to fall or stumble even?
A: No, all he did was …
Q: Or suffer injury for that matter?
A: I have no idea what injury, if any, that the car, it wasn’t a major collision that you would see at 15 or 20 miles per hour because anybody would be knocked over, it was a collision between him running into a car that was almost, if not already, stopped.
Q: Did he put his hands out to rest his hands on the vehicle?
A: I can’t remember that.
(2 October 2012, File 3, Tab 9, p. 1197 line 15 – p. 1199 line 11)
58. The civilian witnesses all give a consistent account about this aspect of the incident. The consensus of their evidence is that the deceased got out of the car, turned first to his right as if to run countrywards, apparently saw the rear police car and then turned left to run across the road, before he was shot. There was no looking over the right shoulder at call sign 8 or complete turning to face call sign 8.
59. Nor were there any injuries to the deceased or damage to the headlight area consistent with any significant contact.
60. However, the most obvious and compelling reason for rejecting the account of the deceased turning to face Sergeant A and facing him when Sergeant A fired is the simple fact that the deceased was shot in the back.
61. As appears from Dr Press’s post mortem report (File 11, Tab 42, p. 3439), the deceased was shot twice in the back and once in the back of the left arm. The fatal bullet entered the left side of the back and passed forwards to the right at an angle of about 45 degrees and upwards at an angle of about 15 degrees, lacerating the left lung, aorta, heart, heart sac and right lung before exiting on right side of front of chest. The bullet that entered the back of the left shoulder also passed forwards to the right at an angle of about 45 degrees but slightly downwards. The third bullet entered the back of the left arm and exited through the front of the forearm.
62. Dr Press concluded that he had been struck from behind and to his left. (p. 3439)
63. Professor Crane was asked at the last inquest if there was “any way” that the deceased could have been facing the person who fired the shots whenever those shots were fired. His reply was that the deceased’s back “would have to have been presented to the shooter for those wounds to have been sustained”. (8 October 2012, File 11, Tab 43, p. 3487 lines 11 – 13)
64. Philip Boyce, Forensic Scientist, said at the last inquest (11 October 2012, File 11, Tab 40, p. 3354 line 19) that the MP5 rifle used by Sergeant A fires 800 rounds a minute (not 300 as initially suggested at p. 3345 line 12), so that 5 rounds can be discharged in 0.375 of a second. A round fired from this weapon travels 1250 feet per second (about 850 miles per hour) and would travel 5 yards in 0.012 of a second. (File 11, Tab 40, p. 3345 line 16 – p. 3346 line 16)
65. Although, for reasons discussed below, reaction time is not relevant in this case, the average reaction time is 0.1 of a second (11 October 2012, File 11, Tab 40, p. 3346 lines 28 – 30) and he would expect a trained weapons handler to have a faster reaction time. (p. 3347 lines 3 – 10)
66. The shots would hit “so fast it would be like a freeze-frame”, so that at the time the trigger was pulled Pearse Jordan must have been presenting his back to the person who fired the shots and at the time the decision was made to fire the shots Pearse Jordan must have been presenting his back to the person who fired them. (File 11, Tab 40, p. 3347 line 24 – p. 3348 line 8)
67. Professor Pounder contended that the differing trajectories (upward/downward) of the two rounds that entered the deceased’s back indicated movement on the deceased’s part between these shots. He rejected the suggestion that this could simply be attributable to deflection of the rounds between entry and exit. According to his evidence, “there are exceptional circumstances where [bullets] are deflected but there is a general rule that they are not deflected and they are not even deflected after going through a rib”. (8 March 2016, File 11, Tab 45, p. 3620) Dr Cary explained why bullets are indeed deflected after entry into the body. (15 April 2016, File 11, Tab 44, p. 3532(9) line 29 – p. 3532(11) line 9) Considering also the rapidity of automatic fire from the weapon in question, the idea that the deceased made any significant movement between shots is fanciful.
68. Given the way the spent cases are ejected from an MP5, the shooter was standing on the footpath firing in a south easterly direction roughly at an angle of 45 degrees across the road and, given that the rounds went through the deceased at an angle of roughly 45 degrees, the deceased must have been facing more or less straight across the road. (11 October 2012, File 11, Tab 40 p. 3350 lines 20 – 28)
69. The evidence of all the civilian witnesses on this issue is consistent with this medical and forensic evidence.
70. The evidence of the officers on this issue is certainly “challenging”. In our submission, it simply cannot be reconciled with the other evidence in the case.
71. Sergeant A says that the deceased was facing him when he fired, i.e. when he pulled the trigger. (16 October 2012, File 6, Tab 14B, p. 1732 and p. 1759 and 17 October 2012, File 6, Tab 14B, p. 1836, confirmed on 1 March 2016, File 6, Tab 14B, p. 1966) This is after he had perceived any “threat”, after he reacted to it and after he decided to fire. In particular, his evidence was clear that he never saw the deceased turn his back to him. (16 October 2012, File 6, Tab 14, pp. 1750, 1759, 1760, 1763, 1764) Sergeant A’s account was given at this inquest in the following terms:
Q: According to your own account – I will come back to the map shortly. But according to your own account Mr Jordan was facing you when you fired; is that right?
A: That’s right.
Q: That is when you pulled the trigger?
A: That’s correct.
Q: So that was after you had perceived whatever threat there was?
A: That’s right.
Q: And decided what you were going to do about it?
A: That’s right.
Q: And actually pulling the trigger?
A: That’s correct.
Q: But you know that Mr Jordan was shot in the back?
A: That’s right.
Q: You know how fast these bullets travel?
A: Yes.
Q: Something like 1,250 feet a second?
A: Something like that. I couldn’t tell you.
Q: About 850 miles an hour, faster than the speed of sound, well you may not know that?
A: No, they’re not.
Q: So he is looking at you, facing you –
A: Mm-hmm
Q: — at the moment the bullets actually come out of the muzzle?
A: That’s right.
Q: But somehow he manages to turn about 180° roughly in order for the bullets to enter his back?
A: That’s right.
Q: In circumstances where he was no more than about six yards from you?
A: That’s correct.
Q: You never saw him turn, did you? Sorry, turn his back to you. You’ve described this spinning motion where he faces you?
A: Yeah.
Q: After he faced you, you never saw him turn round, did you?
A: No.
(1 March 2016, File 6, Tab 14B, p. 1965 line 16 – p. 1966 line 26)
72. Reaction time and thinking time are therefore wholly irrelevant to the issues in this case. The only time that is relevant is the time it took for the bullets to travel from the muzzle of Sergeant A’s rifle to the deceased’s back. The speed at which this happened renders it impossible for the deceased to have been facing Sergeant A when Sergeant A fired. Despite his best efforts to provide a plausible explanation for the suggestion, even Professor Pounder had to concede the obvious, as reflected in the following questions and answers:
Q Do you think, assuming for present purposes the deceased was facing Sergeant A at that point, facing in the normal sense of the term, not twisting but facing, do you think it is feasible that he could have turned 180 degrees in the space of 0.012 of a second?
A No one could turn in that time
(8 March 2016, File 11, Tab 45, p. 3614)
And:
Q Nobody is going to turn 180 degrees in the space of anything like 0.012 of a second?
A Certainly not, no.
(8 March 2016, File 11, Tab 45, p. 3629)
73. Professor Pounder’s evidence consisted essentially of an exploration of a scenario not depicted by Sergeant A himself, given that Sergeant A had the deceased facing him at all material times and not turning his back to him.
74. The scenario depicted on Professor Pounder’s clock face is in fact derived from the officers who first supported the account of “burling” and “spinning” at a time (during the debrief) when they believed that the deceased had been shot in the front of the chest. But the clock-face scenario also ignores the evidence of these officers in respect of the point at which the shots were fired.
75. Officer F said at the last inquest that “whenever the shots rang out”, the deceased was facing Sergeant A. (9 October 2012, File 3, Tab 9, p. 1173 lines 26 – 27) This was confirmed at the present inquest in the following terms:
Q: In other words at the time that the bullets were being fired from the rifle, Mr Jordan was facing towards call sign 8?
A: Yes, away from me, yes.
Q: Yes. In other words after Sergeant A had perceived a threat, assessed a threat, reacted to it, decided to pull the trigger and actually had pulled the trigger, this man was facing call sign 8?
A: Yes, that’s my perception, yes.
(25 February 2016, File 3, Tab 9, p. 1289 lines 5 – 12)
76. Given that the bullets travelled faster than the speed of sound (about 767 miles per hour in normal air conditions), the deceased would have still been facing Sergeant A after the shots had been fired, on this account. This makes sense if, as F originally believed, the deceased was shot in the front. Given that the deceased was actually shot in the back, it makes no sense whatsoever and cannot be the truth.
77. Officer D also suggested initially that the deceased was facing Sergeant A when he was shot but was more equivocal. He said at the last inquest that it was “around that time”. (1 October 2012, File 2, Tab 7, p. 795) On 24 February 2016, he maintained that he heard the burst of fire after the deceased turned and before he turned back towards D, holding his hand (File 2, Tab 7, p. 886) even though he eventually accepted that he must have been shot while facing D. (ibid. p. 890)
78. Officer E was even less categorical, although he did suggest the same sequence. He didn’t see the deceased as he was shot but he claims to have seen the deceased turn as a result of the impact with the car and then, as E was getting out of his car, he heard the shots. (9 October 2012, File 3, Tab 8, p. 940)
79. Officers B and C claim to have been unsighted at the time the shots were fired.
80. On this analysis, it becomes apparent that only Officer F has provided unwavering support for Sergeant A’s contention that the deceased was facing him when he fired. However the accounts of these officers are at odds with each other, in that F has the deceased continuing to “burl around”, whereas A says the deceased was facing him at all material times after he first turned and that he never presented his back to him after that turn towards him. It is noteworthy that the accounts of both of these witnesses, as given to this Coroner’s Court, are not reliant on the reaction-time, upon which Professor Pounder places significant reliance.
81. The clock-face scenario depicted by Professor Pounder therefore represents – not the account of Sergeant A or indeed any other officer – but a combination of different elements of these accounts. Essentially, if reliance is to be placed upon Professor Pounder’s evidence as to the ‘plausibility’ of the ‘police’ account, the Court must, as Professor Pounder has done, pick and choose in a selective manner from the evidence of Officers A and F, relying only upon those elements which lend support to the possibility that Pearse Jordan was facing Sergeant A when shot, and ignoring those aspects of the evidence of Sergeant or Officer F which undermine that thesis.
82. It also depends on an interpretation of the officers’ use of the term “facing” as not meaning facing in the ordinary sense of the term but in the sense that the deceased was looking towards Sergeant A while his torso was facing a different direction at all times other than the moment when both the torso and the head were aligned “facing” towards Sergeant A during the “burl”. In other words, Professor Pounder’s scenario involves the deceased turning like a dancer performing a pirouette, head facing constantly forward toward Sergeant A while the torso turns through 180 degrees, angled to the left for 90 degrees and to the right for the next 90 degrees as the body turned clockwise – all in circumstances where the deceased had been running in the opposite direction immediately before he managed to turn and perform this pirouette, hands by his side, without overbalancing, or even raising his arms to maintain his balance, and despite running straight into a police car in the process and hitting either his right leg or his left leg either on the driver’s side headlight or the passenger side headlight or somewhere in between. It is submitted that this account is entirely fanciful.
83. The alleged turn clockwise is also inconsistent with the location of the entry wounds to the back. According to Messrs. Boyce and Greer’s Agreed Point no. 5 (24 October 2012, File 11, Tab 41, p. 3426), the upper of the two wounds to the back was sustained after the lower wound, given that an MP 5 tends to rise when fired. If the deceased had been turning clockwise as Sergeant A was firing, the expectation is that the later wound would be to the right of the earlier wound. (Dr Cary, 15 April 2016, File 11, Tab 44, p. 3532(13)) This effect would be accentuated by the fact that the MP5 also tends to move left to right. (Inspector Brown, statement of 19 October 2012 read on 3 March 2016, File 8, Tab 21, p. 2557) In fact, the upper (subsequent) wound was 9.5 cm to the left of the lower wound thus further undermining the suggestion that Pearse Jordan was turning rapidly in a clockwise direction when shot.
84. The fact that both of the bullets that entered the deceased’s back passed forward and to the right at the same angle of approximately 45 degrees provides further support for the proposition that the angle of the deceased in relation to Sergeant A remained the same between these shots. (Dr Cary, 15 April 2016, File 11, Tab 44, p. 3532 (10)) In other words, their relative positions did not alter in the way that they would have done if the deceased was spinning clockwise as rapidly as Sergeant A says he must have done, bearing in mind always that (i) he didn’t claim to see any such turn away from him and (ii) it is in our submission fanciful to suggest that the deceased had any time to turn or move in the time it took for the bullets to travel from the muzzle of Sergeant A’s gun to the deceased.
85. Dr Cary was asked if Sergeant A’s account of the shooting was plausible. His answer was straightforward:
A: No, put simply. There simply isn’t enough time for him to turn away in any case, but this is actually during the course of the firing when the trigger has been pressed he is still presenting his front and that is wholly inconsistent with bullets entering from the back. It is as simple as that. I mean it’s a terribly simple point.
(File 11, Tab 44, p. 3532(19) lines 10 – 16)
86. The suggestion that the deceased turned towards the deceased in a burling movement and was shot in the back while he appeared to be facing towards Sergeant A is therefore inconsistent with the medical and forensic evidence, the civilian evidence and, indeed, common sense.
87. Significantly, of the five officers (apart from A) who were at the scene, within a matter of yards from where the deceased was shot on a well-lit road by an officer who was also within yards of their respective positions, two say they did not see it happening and the remaining three (albeit with varying degrees of enthusiasm) claim that the deceased was facing Sergeant A when A fired at him from a distance of about 6 yards with bullets that travelled faster than the speed of sound and entered his back. In short, none of the officers has admitted seeing what the experts agree actually happened, viz that the deceased was presenting his back to Sergeant A when the shots were fired.
88. The account suggested by the officers is such an unlikely scenario that, apart from requiring the rejection of their accounts on this issue, the credibility of all these officers on the other material issues in the case must be irretrievably damaged.
viii) Whether Sergeant A honestly believed that the deceased did anything that posed a threat to him or any other police officer
89. Officers D, E and F assert, with varying degrees of enthusiasm, that the deceased behaved in a way that caused them to believe that he posed a threat. This is a matter that the court can take into account in deciding whether Sergeant A had the same belief. It is therefore proposed to look at their accounts of this matter before examining that of Sergeant A.
90. Officer D said in his first statement to police that he had been afraid for his life. However, the reason he gave initially for that alleged fear was the fact that he had heard shots and didn’t know who had fired them. What he said was: “At the time of the incident I was genuinely afraid for my life as I was unaware of whether the driver of the Orion or the police had discharged the shots”. (Statement of 8 December 1992, File 2, Tab 7, p. 761, emphasis added) In other words, it was not any actions of the deceased before the shooting that caused him to apprehend fear but hearing the shots fired by Sergeant A.
91. Officer D’s account of what he had seen the deceased do before the shooting has not always been consistent. He said in his first statement (ibid. at p. 758) that “the man‘s head turned over his right shoulder and both his hands were down by his right hip. He was full in the headlights of our car at this time. This man then made contact with our vehicle”. He was asked about the turning at the last inquest:
Q: And the first time there was any kind of turning on his part, turning of his head or his body was at the point where you say he made this contact with the vehicle?
A: Correct.
Q: Can you explain why you said something different when you made your statement? Specifically why did you suggest to the police when you made your statement that his head was turning, he was looking over his shoulder before he made any contact with the vehicle?
A: Well if that’s what’s in the statement that’s what happened.
Q: Well, it can’t be both ways, can it?
A: Of course it can.
(1 October 2012, File 2, Tab 7, p. 788 lines 4 – 15)
92. Eventually, he appeared to realise that it could not be “both ways” and then claimed that he had not mentioned the deceased’s head. (ibid. p. 789, lines 26 – 29)
93. As for the suggestion that the deceased had both hands down by his right hip, Officer D was asked at the last inquest to demonstrate the deceased’s actions. He did so with his right hand by his right side and his left hand by his left side. When this was pointed out to him he said “maybe that’s a mistake on my part today”. (ibid. p. 793, line 8)
94. Sergeant A never suggested that the deceased had both hands by his right hip. He has always said that the deceased had both hands low down by his sides (where he couldn’t see them, on his account). Nor was there any reason for the deceased to have both of his hands by his right hip.
95. Ultimately, Officer D agreed that he never saw anything that justified shooting the deceased and that the deceased didn’t do anything that constituted a threat to him:
Q: But you yourself never saw the driver do anything that would have justified shooting?
A: You are asking me something I can’t answer.
Q: I am asking you something that you can answer. Within your view you never saw this man do anything that would have justified being shot by you?
A: No.
Q: He wasn’t pointing a weapon or anything that looked like a weapon?
A: No.
Q: In fact, you knew he had nothing in his hands, didn’t you?
A: When I seen him?
Q: Yes.
A: He had nothing in his hands.
Q: Because you were specifically looking at his hands; is that right?
A: I was.
Q: In order to see whether he had a weapon.
A: To see if there was anything at all that would be a threat to me, yes.
Q: Sorry?
A: To see if there was anything at all that would be a threat to me, you are right, correct.
Q: Yes. And there was nothing in his hands that would have been a threat to you?
A: No.
Q: And he did nothing at any point that was a threat to you; is that right?
A: No, he didn’t do anything.
Q; And there was nothing that you saw him do that was a threat to anyone else.
A: I can’t answer that question.
Q: You can. There was nothing that you saw that would appear to have been a threat to anyone else?
A: Well he turned towards police.
Q: But not in any kind of threatening way, not on your own account?
A: His hands were down by his right-hand side.
Q: Is that a good reason to shoot somebody?
A: I wouldn’t do it.
Q: No.
A: But I wasn’t faced with what they seen.
(1 October 2012, File 2, Tab 7, p. 800 line 18 – p. 802 line 1)
96. Specifically, he saw nothing that justified firing in accordance with the RUC Code of Conduct. (ibid. pp 109 – 116)
97. In other words, Officer D saw nothing that posed a threat to himself or any of the other officers. His evidence cannot therefore be relied on to support the suggestion that Sergeant A had an honest belief that he was under threat of any kind.
98. Officer E also claimed in his first statement that the deceased had both his hands at the right side of his body, albeit after he made contact with his call sign, and that he believed the deceased was armed. (Statement of 3 December 1992, File 3, Tab 8, p. 923)
99. This is the officer who told the last inquest that he remembered the deceased’s left leg striking his vehicle (9 October 2012, File 3, Tab 8, p. 948, line 11) but then said it was his right leg when it was pointed out that this what he had said in his statement. (ibid. p. 971) He also claimed at the last inquest that he exited his vehicle in fear for his life (ibid. p. 957, line 7) but had not suggested this in his statement.
100. As for the suggestion that both of the deceased’s hands were by his right side in the area of his waistband, E said at this inquest that he regarded this as sinister (25 February 2016, File 3, Tab 8, p. 1086 line 13) and that he believed the deceased was in the process of reaching for a firearm. (ibid. p. 1087, line 17) At the last inquest he said the opposite. When it was suggested to him that there was “nothing particularly sinister about reaching to his waistband or anything like that” he said “no”. (9 October 2012, File 3, Tab 8 p. 981 lines 13 – 15)
101. Officer E also claimed that he had never perceived any greater threat to his life than he experienced that night (9 October 2012, File 3, Tab 8, p. 1000 lines 19 – 22) and he repeated that at this inquest. (25 February 2016, File 3, Tab 8, p. 1089) It was suggested to him that the reason why he found the incident traumatic was that he had seen a fleeing man shot dead in front of him. His reply was:
“I mean the reason why is because I felt as much fear as I have ever felt in my life in that short split second when I thought Mr Jordan was either going to shoot me or shoot one of my colleagues”. (ibid, p. 1090 lines 21 – 25)
102. This is difficult to reconcile with the fact that Officer E could see that the deceased had no weapon in his hands and saw no weapon anywhere else. (9 October 2012, File 3, Tab 8, p. 999 lines 22 – 28)
103. As for the suggestion that he thought the deceased might be reaching for a firearm in his waistband, this is contraindicated by the fact that he did not look for any firearm, either on the deceased’s body or near his body, even though he was one of the first to approach the deceased as he lay on the ground. (9 October 2012, File 3, Tab 8 pp. 981 – 983) Significantly, while officers did search the vehicle for explosives and/or weapons, there wasn’t even any discussion about a firearm when Officer E was attending the body. (ibid. p. 983) If, not one of the officers was asking “where the gun is”, that is clear evidence that not one of them believed that the deceased had a gun on his person.
104. Officer F also suggested that he thought at the time that the deceased was going for a weapon and that he was about to shoot when he heard the shots. However, as noted above (paragraph 23), while he may have been ready to fire, the suggestion that he was about to shoot is contraindicated by other parts of his own testimony. Specifically, he said that he cannot say that he would have opened fire (File 3, Tab 9, p. 1177) and doesn’t know if he was going to shoot. (File 3, Tab 9, p. 1226) He has thought about it over the years and wonders if he was waiting for some other movement or something more for him to pull his trigger. (File 3, Tab 9, pp. 1176, 1177, 1187 and 1193) When taken through the requirements of the RUC Code of Conduct on the Use of Forearms, he accepted that he was not aware of the deceased jeopardising the lives of others. (File 3, Tab 9, p. 1186)
105. When asked to explain at the last inquest why he didn’t fire if he perceived a threat, he said:
“I may have been waiting for him to put his hand down the waistband of his trousers, I don’t know, but it didn’t happen”. (2 October 2012, File 3, Tab 9, p. 1193 lines 3 – 8)
106. This is also significant in the light of Officer E’s evidence about the waistband.
107. Whether or not Officer F perceived a threat, he confirmed at this inquest that he would have needed to see the deceased do something more than he had done before he could have justified firing:
CORONER: Would it be fair, Officer, to say that you were in a position when you were ready to fire, but you required something further to happen before you would have pulled the trigger?
THE WITNESS: Yes, my Lord. I thing that’s, on reflection over the years, every time I ask this – –
CORONER: I know it’s very hard to look – –
THE WITNESS: I can’t, I really can’t answer it because it is an incident, it is a one-off that I have been involved in – –
CORONER: Yes.
THE WITNESS: – – and it was traumatic and the whole thing was traumatic but you could think about your own actions and what you were prepared to do and what you did do and what you would have done is all, it is very hard to put into context.
CORONER: Yes.
THE WITNESS: My Lord, if you know.
CORONER: But in any event, being placed in that situation you did not pull the trigger?
THE WITNESS: No.
CORONER: You think that it would have required something more, and I mean it is a personal reaction – –
(25 February 2016, File 3, Tab 9, p. 1307 line 14 – p. 1308, line 8)
108. However, the determination of Sergeant A’s belief ultimately depends on the credibility of Sergeant A’s own account. Given the matters discussed above and below, Sergeant A’s credibility has been undermined to the extent that no reliance whatsoever can safely be placed on his testimony.
109. The fact that, for the reasons set out above, the deceased did not do anything that, as a matter of objective fact, posed a threat to Sergeant A or the other officers inevitably renders it improbable that Sergeant A honestly believed that he did. The less reasonable the belief, the more difficult it is to accept that it was honestly held. There is simply nothing in the evidence to tilt the balance of probability in Sergeant A’s favour.
110. Even on his own account, it is difficult to see how Sergeant A could honestly have formed the impression that he or other officers were under threat. He doesn’t offer any credible explanation of what exactly caused him to apprehend a threat. Even on A’s account, the deceased literally did nothing except turn around. In this context it is important to remember that the officers were in armour plated vehicles, the option of taking cover behind his vehicle was available to Sergeant A and given the requirements of the RUC Code of Practice was an option which ought to have been availed of by him in circumstances where he had not seen any weapon, nor indeed seen Pearse Jordan make a movement which suggested he was going for a weapon.
111. Moreover, A’s account has to be judged in the context that he himself says he was probably more highly trained, capable and experienced than any other anti-terrorist officer in Europe at the time, with an enhanced ability to distinguish between an actual threat and a potential threat. It is also clear that he was an experienced marksman, even by the standard of HMSU, given that he was involved in training RUC officers in the use of firearms. As he accepted at this inquest, Sergeant A’s training was designed to teach him not to do what he actually did. (1 March 2016, File 6, Tab 14B, p. 1937, line 21 – p. 1938, line 2)
112. It is, of course, disputed that the deceased turned towards Sergeant A as he suggests or at all. However, taking Sergeant A’s case at its height, he was asked at the last inquest whether, if he had reacted to such circumstances in the same way in a training exercise, he would have passed. His answer was instructive:
Q: If you had been on a training exercise, in which you had these pop-up cardboard cutout characters, some of which are dangerous and some of which are not, some of which just shooting and some of which don’t?
A: Hmm.
Q: And one of the cardboard characters had turned around – spun round to face you, and you had shot that cardboard character?
A: Hmm-hmm
Q: Even though that cardboard character was not armed?
A: Yeah.
Q: Would have passed that test; do you think?
A: Probably not no.
Q: No. Why not?
A: Because there is a difference between training and operational use.
Q: Yes, I know. But going back to the test. If that had happened in a test, where the person … that the cardboard character or figure that was turned round was unarmed, and you shot it, why would you have failed the test?
A: Because I would have been marked down for it; yes.
Q: Why?
A: Because I probably shouldn’t have.
Q: But why not …
A: Because –
Q: … there’s nothing wrong with shooting …
A: Because –
Q: … just on the off-chance that it may be armed?
A: Just, as I said before, there’s a massive difference between a training exercise with pop-up targets, and the middle of a terrorist operation.
Q: Yes, yes, but let’s concentrate on the reasons why you would have been marked down in the training exercise with pop-up targets, if you’d done the same thing in a training exercise?
A: Probably would have just eh, I don’t know whether it was over quick reactions or whatever but, yes, I agree with you, in a training situation, in a pop-up cardboard target, you know, I possibly might not have done that.
Q: In a training situation it would have been regarded as, at the very least, premature for you to shoot at such a target that’s not actually armed or raising its hands towards you threatening to shoot.
A: That’s quite possible, yes.
Q: You would have been marked down because you’re not actually permitted to shoot in those speculative circumstances, are you?
A: Again, we’re back to training exercises and real life.
Q: And in a training exercise; is that right?
A: As a training exercise; that’s correct.
Q: And the purpose of the training exercise, of course, is to see whether you are fit and capable of reacting appropriately?
A: Yes, that’s part of it, yes.
Q: You had been found to be fit to do so?
A: Yes.
Q: Capable of doing so?
A: Correct.
Q: But you didn’t do so on this occasion?
A: No.
(17 October 2012, File 6, Tab 14B, p. 1793 line 7 – p. 1795 line 5)
113. He subsequently resiled from the admission that he didn’t act appropriately but he cannot avoid the consequences of these answers.
114. The fact that Sergeant A did not suggest to anyone at the scene or even during the debrief that he apprehended a threat compounds the difficulty facing even the most sympathetic listener in accepting his assertion at face value. If Sergeant A had been a nervous, inexperienced novice, and if Pearse Jordan had actually turned as suggested, a panic reaction might have been a credible explanation for his behaviour. Given his actual experience and, perhaps more importantly, his aptitude for dealing with threatening situations and proven composure under pressure, it is simply inconceivable that he honestly believed he was under threat in circumstances where there was no objective threat whatsoever.
115. It is important to appreciate not only the level of training received by Sergeant A and the extent of his experience, but his aptitude and capacity for situations of the kind he claimed to face when he shot the deceased. This was addressed more fully at the last inquest:
Q: Did you undertake exercises during your training to test your aptitude for this kind of work, firearms work, or could anybody just join up to the HMSU?
A: No, there was tests.
Q: There were aptitude tests?
A: Yes.
Q: And what form did those aptitude tests take?
A: As regards firearms, it was just intensive firearms training.
Q: Yes well, I have moved on slightly from the actual training now to the really the selection for training. Presumably you went on courses of some kind?
A: Yes.
Q: You would have had to have been selected to go on courses in the first place?
A: That’s right.
Q: So you had to demonstrate in some way an aptitude for firearms?
A: That’s correct.
Q: Specialist firearms work?
A: That’s correct.
Q: Obviously all members of the RUC at the time would have been trained in the use of firearms. But you had this enhanced training?
A: Indeed, yes.
Q: Because you were regarded as having an enhanced aptitude?
A: That’s correct.
Q: A special aptitude for this sort of work. I’m just wondering what sort of tests you may have had or exercises that you may have performed in order to demonstrate your aptitude for this sort of work. For example, I think we’ve all probably seen Hollywood films where you see people going on an exercise where cardboard cut out figures suddenly pop up and then the trainee is supposed to distinguish between someone who’s an actual threat with a gun and someone who’s just a passing civilian?
A: That’s correct.
Q: You have seen that sort of thing?
A: Yes.
Q: Was there anything like that that took place during your exercises?
A: Yes, there was.
Q: Yes. And you were entitled to shoot at the cardboard cut out figures who didn’t have guns?
A: No, you …
Q: Or those that were running away?
A: No.
Q: Which were the ones you were trained to, that you were entitled to shoot?
A: The armed threat.
Q: And what sort of threat, typically what sort of pose would have been presented to you as an armed threat?
A: Probably the gun raised.
Q: Gun raised in your direction?
A: Yes.
Q: And did these figures pop up quickly in different, from different directions?
A: Yes
Q: And was your performance during these exercises monitored?
A: Yes.
Q: In order to see whether you were able to demonstrate good observation skills?
A: Yes.
Q: Quick reactions?
A: Correct.
Q: An ability to fire accurately?
A: Yes.
Q: And quickly?
A: Correct
Q: All the aptitudes, all the skills that you would need in order to be able to distinguish correctly between those situations where you were entitled to shoot and where you were not entitled to shoot.
A: Correct.
Q: In other words between those situations where you were justified in firing and not justified in firing?
A: Correct.
Q: And you were good at it, weren’t you?
A: Well I was a member of the team, yes.
Q: You had a real aptitude for this kind of work?
A: Yes
Q: So you did demonstrate quick reactions?
A: Correct.
Q: Sharp observational skills?
A: Yes.
Q: And coolness in dangerous situations?
A: Correct.
Q: Composure in dangerous situations?
A: That’s right.
Q: You in fact were exposed to many dangerous situations?
A: That’s correct.
Q: Up to 1992 and no doubt thereafter as well, but up until 1992, you had been exposed to many situations?
A: That’s correct.
Q: So many that you couldn’t even begin to list them?
A: Yes.
Q: Hundreds?
A: Yes.
Q: In fact you actually sought out and thrived on dangerous assignments, didn’t you?
A: It was my job.
Q: This isn’t a criticism?
A: This was my job.
Q: No, but it wasn’t a job that was forced upon you, this was a job that you actually sought out?
A: Yes.
Q: And wanted to do?
A: Yes, of course.
Q: You had volunteered for the special patrol group when you were quite young?
A: Yes.
Q: Which would have put you in life-threatening riot situations?
A: Correct.
Q: As a matter of routine?
A: Correct.
Q: And you proved yourself calm, cool, and composed in dangerous situations?
A: I’d like to think so.
Q: And you actually became an instructor for a year, did you?
A: Yes.
Q: In the Operational Training Unit?
A: That’s correct.
Q: Instructing other police officers how to remain calm and composed in dangerous situations?
A: Yes, that’s correct.
Q: And how to deal with them in a measured, proportionate way?
A: Yes.
Q: You delivered training to the RUC’s VIP protection unit?
A: That’s correct.
Q You were the team leader or a team leader of an RUC sniper team?
A: Correct.
Q: All before 1992?
A: That’s right.
Q: So you organized the training of snipers?
A: That’s right.
Q: With an emphasis on observation and reaction?
A: Correct.
Q: Observation meaning an ability to distinguish between situations where a terrorist or some such person was presenting an actual threat as opposed to a potential threat?
A: Correct.
Q: And a reaction meaning an ability to react quickly and correctly to situations.
A: That’s right.
Q: With which you were faced?
A: That’s right.
Q: So you weren’t training these other people, these other snipers to shoot first and ask questions later?
A: No.
Q: You were training on it that they would need to be sure or at least have a positive indication that any weapon that may have been in possession of a target was actually about to be used?
A: Yes.
Q: Did you teach or train these other officers about the need for fire power, speed, and aggression?
A: No.
Q: Was that how you were trained?
A: That was how I was trained originally.
Q: You were never actually trained to shoot to disable?
A: No.
Q: As opposed to shoot to kill?
A: No, aim at the largest target.
Q: The idea being to shoot to kill rather than to disable?
A: Yes, if you want to put it that way.
Q: So in 1992 you weren’t a nervous novice, were you?
A: No.
Q: You weren’t easily panicked?
A: No.
Q: By the sight of a terrorist?
A: No.
Q: Even an armed terrorist?
A: No.
Q: In fact did you describe yourself as one of the most experienced anti-terrorist officers in Europe?
A: That’s correct, at the time, yes.
Q: At the time?
A: At the time, yes.
Q: One of the most experienced and capable anti-terrorist police officers in Europe?
A: Yes, yes.
(17 October 2012, File 6, Tab 14B, p. 1721 line 14 – p. 1727 line 21)
116. Until the late disclosure of the intelligence material concerning [name removed], it might have been puzzling why a firearms officer with Sergeant A’s experience and ability would have fired if he did not honestly believe that he was under threat. It was never necessary for the next of kin to answer that query but it was tentatively suggested to Sergeant A that the explanation might be that Sergeant A believed the deceased had been someone else (1 March 2016, File 6, Tab 14B, p. 1940), perhaps having been told in earlier transmissions the name of the man who was misidentified. (ibid. p. 1944) These suggestions were categorically denied and, with no evidence to support them, the matter could not be pressed. However, the emergence of the [name removed] material allows these denials to be evaluated in a different light. This is discussed further below under the heading “Wrong Man”.
ix) Whether Sergeant A selected automatic fire rather than single shot deliberately or accidentally
117. This depends largely on Sergeant A’s credibility and it is submitted that Sergeant A’s evidence on this issue is not credible, particularly when one has regard to his attempt to blame the condition of the weapon for his action in selecting automatic fire.
118. The Court will recall that Sergeant A suggested that the condition of the weapon he fired on the 25 November 1992 contributed to the fact that he fired on automatic rather than on single shot stating:
“I would have preferred to fire single shots. I would have had more control but unfortunately the weapon I was using at the time was a very well used weapon, it was my personal weapon and it was on the range several times a month sometimes and it was just well worn. Like anything mechanical it wears”. (1 March 2016, p. 32 lines 9 – 18)
119. The Court will recall that Mr Boyce was questioned about this matter but did not have access to his original notes at the time. Thereafter at the invitation of the Court he reviewed his original notes and produced a further short report (File 11, Tab 40, p. 3411) which stated as follows:
“Purpose
During my evidence to the court on 8th March 2016 I was asked to comment on the condition and functionality of item 4 AJTMcG1 Heckler and Koch MP5 serial number 37845. As the copy of the file I had did not have the examination notes regarding this item I was only able to state that it was in good condition. I was later requested to provide comments once my notes were made available to me. I have now been provided with a copy of my examination notes of items 3 PJB3 Spent cases from path way and item 4 AJTMcG1 Heckler and Koch MP5 serial number 37845.
Comments
My notes concerning item 4 AJTMcG1 Heckler and Koch MP5 serial number 37845 showed it was in good condition and I test fired it in both single shot and automatic modes. As it functioned correctly in both modes I have no concerns as to the way it operated and would regard it as having operated properly as designed. Its trigger pressure was measured at 7 1⁄2 lbs which is normal and considered as the correct pressure required to operate such submachine guns.”
120. Sergeant A’s attempt to attribute the switch to automatic fire to the condition of the weapon should be rejected. In considering this issue the Coroner should also take into account Sergeant A’s aptitude, coolness and composure under pressure, training and experience. Pushing the selector beyond single shot and on to automatic mode may have been understandable in the case of a nervous novice unfamiliar with dangerous situations. It is much less likely in the case of someone of Sergeant A’s calibre.
x) Whether Sergeant A was justified in firing in breach of the RUC Code of Conduct governing the discharge of firearms
121. The RUC Code of Conduct is in the Core Bundle at Tab 5. Its importance cannot be over-stated. As the Court of Appeal has said: “The code in effect requires that the use of lethal force is unavoidably necessary. This accords with the concept of absolute necessity under Article 2 as explained in Bennett and the other Strasbourg case-law.”
122. The Code is a detailed code devised by the RUC, in circumstances where they operate as an armed police force, and in circumstances where they were aware of and alive to the terrorist threat in Northern Ireland at that time. The Code was designed, in that context, to provide practical guidance to firearms officers in order to ensure that their use of firearms complied with domestic law.
123. It is difficult to see how conduct that fails to comply with the Code could be regarded as anything other than unjustifiable.
124. Sergeant A recognises both that the Code governed his conduct and that he failed to comply with it. (17 October 2012, File 6, Tab 14B pp. 1828 – 1834, confirmed on 1 March 2016 at File 6, Tab 14B, p. 1933, line 25)
125. At the last inquest, Sergeant A’s failure to comply was addressed in the following passages:
MR MACDONALD: Now, first of all, do you recognize this as an extract from the RUC Code of Conduct governing the use of firearms?
A: I do.
Q: By police officers?
A: Yeah.
Q: You’re particularly familiar with all this because you used to
give training in this?
A: No, not in this.
Q: Well, the use of firearms?
A: The use of firearms; yes.
Q: Well the training in the use of firearms, does that not include training
in the circumstances when you’re allowed to use firearms?
A: Eh, yes.
Q: Right. So you were familiar with the contents of this?
A: Yes, I am familiar with the content.
Q: And you know that firearms can only be used as a last resort?
A: That’s correct.
Q: And when it’s reasonable, in the circumstances?
A: That’s correct.
Q: And when there’s really no alternative?
A: That’s right.
Q: And when you do have to use them, you have to use the minimum amount of force necessary to achieve whatever your objective is?
A: That’s right.
Q: What was your objective that night – to arrest him?
A: Yes. Well, initially it wasn’t. Initially it was to establish his identity.
Q: Yes. Because you didn’t actually know whether he’d been involved
in anything at that stage?
A: At that stage.
Q: What was your objective whenever you decided to shoot?
A: Preservation of life.
Q: Preservation of life. Whose life?
A: My own, and possibly my driver’s.
Q: When you say possibly your driver, I mean –
A: Well, I didn’t know whether my driver was actually … I knew
he would have been in the process of getting out of the vehicle, and the way everything was positioned, that he would have been very vulnerable.
Q: Well we’ll come back to that in just a moment. Could you see the sort of circumstances, the sort of kind of exceptional circumstances that are identified as the sort of circumstances that would justify firing, that appear at paragraph 3.3 over the page?
A: Right.
Q: Do you have that?
A: Yeah.
Q: And the exceptional circumstances include: “(a) an armed attack is in progress against any person and is endangering life”.
A: That’s right.
Q: Now, as a matter of fact, there was no armed attack in progress against any person…
A: That’s correct.
Q: … that night. Isn’t that right?
A: It’s a matter of fact; yes.
Q: “And offender is offering armed resistance”. As a matter of fact nobody was offering armed resistance?
A: No.
Q: … or otherwise, jeopardizing the lives of others that night; is that right.
A: That’s right.
Q: “(c) an armed attack has taken place, and there is no other means to arrest a known offender”. That didn’t apply.
A: No.
Q: And, of course, ‘armed’ means either with a firearm or explosive device, a petrol bomb or weapon being used in a manner likely to cause death or inflict serious injury?
A: That’s right.
Q: None of that applied, in fact …
A: No.
Q: … that night. Now then it goes on to give specific examples of occasions where a firearm could be used after due warning. Now, first of all, you never gave a warning that you were about to fire; did you?
A: No, I – “halt, police”
Q: You said it, at one stage, according to your account “halt, police” or “police halt”
A: Yeah.
Q: But you never said … you never issued a warning you were about to fire first?
A: No.
Q: So these circumstances don’t, strictly speaking, apply because they only apply where a warning has been given. But just to go through them: “Even after a warning is issued you should only use a firearm in circumstances such as the following: (a) against a person who is carrying what is positively identified as a firearm”. You never positively identified a firearm?
A: No.
Q: And: “(2) is believed, in reasonable grounds, to be about to use the firearm in a manner so as to endanger life or cause serious injury”. Obviously that doesn’t apply either, because you never saw any firearm?
A: No.
Q: “And has refused to stop when called upon to do so, and cannot be stopped in any other way”. Although obviously those don’t apply, if the first two don’t apply. The others don’t seem to apply. You can point out any others that do seem to apply to you. But there was no petrol bomb here, or an attack on property, or stealing firearms. And: “(d) against a person who, though he is not at present committing an unlawful act has, in your sight, killed or seriously another”. That didn’t happen; is that right?
A: That’s right.
Q: And: “(e) if there’s no other way to protect yourself”. Well, of course, you could have – – well: “Protect yourself or others, from the danger of being killed or seriously injured”. Now you could, of course, protect yourself by taking cover behind your armoured vehicle, isn’t that right?
A: That’s correct; yes.
Q: And as a matter of fact Mr C (the driver of the vehicle) was still inside his armoured vehicle; isn’t that right?
A: I assumed that he would be getting out.
Q: Well you didn’t really give him much chance to get out, because you had jumped out and fired almost instantly. He didn’t really have a chance to get out; did he?
A: That’s how quick it was.
Q: That’s how quick it was. And then over the page: “(4) warning before firing. In general a warning must be given before firing”. And you didn’t do that?
A: No.
Q: So that the rest of this doesn’t really apply, because it didn’t happen?
A: That’s right.
Q: (5), it says: “You may fire without warning in a number of circumstances, when hostile firing is taking place in your area and a warning is impractical”. That doesn’t apply; does it?
A: No.
Q: “Against a person using a firearm, in circumstances which endanger life”. That didn’t apply, did it?
A: No.
Q: “(b) against any person carrying what you can positively identify as a firearm, if he’s clearly about to use it in circumstances which will endanger life”. Well, there are a few elements there. First of all, you have to positively identify a firearm. That didn’t occur; did it?
A: No.
Q: He wasn’t either about to use it, or clearly about to use it?
A: No.
Q; And (c) didn’t apply, that is this is the other vehicle. (d) didn’t apply, or (e) didn’t apply; did it?
A: No.
Q:Then: “(6) firearms not to be used. Firearms will not be used against (a) any person or vehicle, if all the conditions for use of such extreme force are not met; or (b) any person who is merely suspected of a crime; or (c) a vehicle merely because it has failed to stop”.
Those two factors applied, didn’ t they, in the sense that you were firing at a person who was merely suspected of a crime?
A: That’s correct.
Q: And that’s a circumstance in which firearms are not to be used; isn’t that right?
A: According to this; yes.
Q: Well is there some special law that applies to you?
A: No, but like the people who wrote this are, like your expert Mr Boyce, they weren’t there on the night.
Q: So these … these regulations didn’t govern your conduct that night?
A: Of course they did.
Q: Well then, you didn’t comply with them that night?
A: No.
Q: When you say “No” you’re agreeing with you.
A: I’m agreeing with you; yes.
(17 October 2012, File 6, Tab 14B, p. 1828 line 26 – p. 1834 line 1834)
126. At the present inquest, he accepted that he failed to comply with the Code “in absolutely every way”. (1 March 2016, File 6, Tab 14B, p. 1933 line 25) He also provided some insight into his attitude towards the Code.
127. Sergeant A’s current attitude to both the Code of Conduct and his actions in killing the deceased are illuminating. He regards the Code as just something that was written by people “in an office”. (1 March 2016, File 6, Tab 14B, p. 1934 line 10) He does not regret shooting the deceased dead, even though he was not in fact armed. (ibid. p. 1949) He doesn’t even consider that he made a mistake. (ibid. pp. 1928 – 1929)
128. This all tends to suggest, at the very least, a lack of respect for the rule of law on Sergeant A’s part, specifically an absence of belief in the merits of the Code of Conduct. It also suggests a quite callous indifference to the death of the deceased and, in the premises, an inclination and a willingness to disregard the Code as he saw fit.
129. The contents of Dr Crowther’s notes tend to confirm that this was Sergeant A’s attitude at the time of the shooting. (File 7, Tab 15, p. 2021 – 2025) He was “concerned” about the shooting until he found out about the find at Arizona St. In other words, he was no longer concerned when it was confirmed that the deceased had apparently been involved in some IRA activity. He was “positive” about the matter thereafter. Put another way, he felt justified in shooting the deceased because of his link to the Provisional IRA, whether or not he was presenting a threat to him or the other officers.
130. When pressed about his lack of regret, he pointed out that the deceased was a member of the IRA and on a mission. (1 March 2016, File 6, Tab 14B, p. 1954, lines 18 – 21) The matter was pursued as follows:
Q: The reason you feel justified in having shot him dead is that he was in the IRA and your understanding was that he’d been involved in some way at the goings on in Arizona Street?
A: That’s correct.
(1 March 2016, File 6, Tab 14B, p. 1956 lines 15 – 19)
131. The knowledge of this attitude on his part must inform the assessment of his conduct on the night in question.
xi) Whether Sergeant A could have taken another course of action, such as using the protection of his armoured vehicle as an alternative to firing at Pearse Jordan
132. Sergeant A accepted that he could have taken cover behind his armour-plated car. (17 October 2012, File 6, Tab 14B, p. 1832 lines 20 – 23) It cannot, therefore, be said that it was “unavoidably necessary” for him to use lethal force to protect himself. Nor was it “unavoidably necessary” for him to use lethal force to protect anyone else. None of the other officers saw any need to use lethal force at all, either to protect themselves or any of their colleagues.
Additional Issues
133. It is now proposed to address additional issues that were not specifically identified by Stephens J at paragraph 46 of his judgment. These issues have arisen over the course of the inquest and are relevant to the determination of issues in this case, including the central issue, as to whether the killing of Pearse Jordan was justified. The issues are: in what direction did Sergeant A fire: the “wrong man” issue; and the authenticity/completeness of the HMSU log. The first two issues go to the central issue as defined by Stephens J, as to whether the shooting of Pearse Jordan was justified. The issue as to the authenticity/completeness of the HMSU log is relevant to the central issue in that it goes to the credibility of the accounts given about how the deceased was shot.
xii) The Direction in which Sergeant A fired
134. This is not an issue identified by Stephens J but it arises from the evidence of Sergeant A and Officers D, E and F as a further matter that renders the police account of the shooting wholly implausible.
135. Essentially, the testimony of D, E & F suggests that Sergeant A shot at the deceased whilst he was positioned at the front of their vehicle. They all relate the location of the deceased to the front of their call sign immediately before the shooting. Indeed, on some of their accounts, the ‘spinning’ account is tied directly to the deceased’s suggested collision with the car.
136. Officer D is a good example. According to his account, the deceased was “in that precise position where he had collided with the car at the time [D] heard the shots”. (24 February 2016, File 2, Tab 7, p. 850 line 26 – p. 851 line 1) For the avoidance of doubt, this was “at [his] front headlight at the time the shooting occurred”. (ibid. p. 851 lines 4 – 6) The matter was developed as follows:
Q: If your account is correct, Officer D, that means that Sergeant A shot directly at your call sign?
A: Yes
Q: So if your account is correct Sergeant A fired shots directly at the car that you were half out of and that officer “F” was also dismounting?
A: Yes
Q: Now, just, and you think that’s correct?
A: It is correct, yes.
(24 February 2016, File 2, Tab 7, p. 851 lines 16 – 24)
137. Officer E modified his plan to show the deceased running more directly towards call sign 12 in the direction of Andersonstown police station, “right in the face of [his] vehicle” rather than across the road. (25 February 2016, File 3, Tab 8, p. 1082)
138. The upshot is that, if these police officers are to be believed about the conduct of the deceased at the time he was shot and location of the deceased when he was shot, the Court must accept that Sergeant A fired at him when he was located directly in front of Call Sign 12 – in other words, that he was shooting at the other call sign in his patrol. This clearly did not happen. That an experienced firearms officer would have fired in the direction of an approaching vehicle, whether or not he was aware that it was a police vehicle, is inherently implausible. Moreover, had it occurred one would have expected Officers D, E and F to describe the experience of shots being fired in their direction in their initial accounts of the incident. The absence of any such description and the absence of expression of concern on their part that Sergeant A would have fired shots at their call sign, as they were dismounting, without regard to their safety, should lead the Court to reject this evidence.
xiii) The “Wrong Man”
139. It is now clear from Exhibit 10 that, at 3.40pm on the 25 November 1992, just an hour and a half before that car was forcibly stopped by HMSU officers and the driver shot, TCG received intelligence that [name removed], a “known PIRA activist” was identified as “using” the red Ford Orion at the Whiterock Leisure Centre. Officer AA’s statement in 1992 (File 9, Tab 29, p. 2737) stated that the red Ford Orion was “being driven in the area of Whiterock Leisure Centre, by a known PIRA activist and appeared to be in some sort of PIRA business”. It is noteworthy that Officer AA, the only witness to reference this information, was not present at the debriefing discussed further below.
140. It is submitted that the evidence makes clear that this information and, in particular, this name, was more widely disseminated on the 25 November 1992, than is now acknowledged.
141. The evidence of Officer AA is to the effect that upon receipt of this information he directed military surveillance to the area of the Whiterock Leisure Centre. He confirmed that in terms of the geography of the Operations room, the HMSU liaison officer Inspector M would have shared a desk with the military liaison officer and would have been physically present, sitting beside the military liaison officer when this instruction was given. When specifically asked whether he would have briefed the HMSO liaison officer in relation to the intelligence he stated:
“Well, they were co-located and they would have to be, because they would be running in support of the surveillance so naturally they would have been.”
(7 March 2016, File 9, Tab 29 p. 2899 lines 14 – 18)
142. He also accepted that this was information, including the name, which he would have expected to be provided to the men on the ground. In response to the Coroner, he accepted that the information was “a highly relevant piece of information for those on the ground to know”, there would be “no reason not to give that out” and “every reason to give it out”. (7 March 2016, File 9, Tab 29, p. 2900) In response to Counsel for the Coroner, he said “they would have been given, they would have been [given] all the information, there is no reason why they wouldn’t have been given the information”. (ibid. p. 2902) In response to the suggestion from counsel for the next of kin that, given HMSU’s role in support of military surveillance, it must be beyond question that this information would have been communicated to officers on the ground, he said this was “fairly certain” and “I would agree with you”. (7 March 2016, File 9, Tab 29, p. 2908 lines 9 – 16)
143. In fact in 2012, at a time when the next of kin were unaware of Exhibit 10, the following exchange occurred:
Q. Because at the height of it, taking it at its height, this vehicle was just a suspicious vehicle?
A. Yeah.
Q. And you didn’t even know who was driving it?
A. No, well, there was a report of, what does the report say? A known IRA activist appeared on some sort of PIRA business. So there was a report he was on some sort of PIRA business.
Q. Earlier in the day.
A. Yes, at 3.40.
. . .
Q. If you had no information to suggest that this man had necessarily committed a criminal offence, can we take it that the officers on the ground didn’t have any more information that you had?
A. They would have been aware of the intelligence and also the activities round Arizona Street and the significance of Arizona Street and the fact that it was being driven by a PIRA activist on some sort of PIRA business, so they would have been aware of that.”
(26 September 2012, File 9, Tab 29, p. 2832 line 13 – p. 2833 line 8, Emphasis added)
144. Officer V in his evidence also accepted that it would have been his expectation that the men would have been provided with this information, including the name and the fact that the person was a suspected PIRA activist. (9 March 2016, File 9, Tab 30, p .3124 line 28 – p. 3125, line 9)
145. Inspector M, on the other hand, denied any knowledge of this intelligence and by inference denied that it had been communicated to the men on the ground, although he accepted that had he received the intelligence it would have been passed to the officers on the ground. (10 March 2016, File 1, Tab 4, lines 1 – 10) Likewise Sergeant A and in fact all of the officers on the ground have denied any knowledge of this name having been communicated to them on the 25 November 1992. All except D agreed that the intelligence was relevant and important information of a kind that they would normally expect to be communicated to them. Officers B and C could not recall the name of the subject being mentioned in transmissions but could not be definitive about it. (19 April 2016, File 2, Tab 6, p. 721(5) line 26 – p. 721(6) line 21 & 19 April 2016, File 2, Tab 5, p. 620(3) lines 5 – 9) D and E said they definitely did not receive the information. (19 April, File 2, Tab 7, p. 891(10) lines 6 – 7 & 21 April, File 3, Tab 8, p. 1123(9), line 9 – p. 1123(10), line 10) F said initially that he was definitely not told the name (19 April, File 3, Tab 9, p. 1310(6), lines 22 – 27) but later said there is always the possibility he hasn’t remembered it. (ibid. p. 1310(8) line 29 – p. 1310(9), line 9)
146. It is submitted that the evidence of Inspector M, Sergeant A and Officers B, C, D, E and F on this issue cannot be accepted, to the extent that they are definite that this information was not provided to them. As outlined above, Officers B and C, in particular, were not definitive on this issue. As far as Inspector M is concerned, there was no good reason and he could identify no reason why he would not have been provided with this information, and further it must be observed that even were he not directly provided with the information his location in the operations room was such that he could not but have received this information.
147. Moreover, as all of the officers questioned on this issue acknowledged (with the notable exception of Officer D), there was every reason why the HMSU liaison officer and the officers on the ground should have been provided with this information given its relevance to the operation which they were undertaking at the time. Officer B couldn’t think of any reason why this information would not have been provided to them. (19 April 2016, File 2, Tab 6, p. 721(5)) C said it was exactly the kind of information that was normally given to them. (File 2, Tab 5, p. 620(6)) So did E “as a matter of routine”. (21 April 2016, File 3, Tab 8, p. 1123(5)) Officer F agreed it was highly relevant and it would have been advantageous for them to have it. (19 April 2016, File 3, Tab 9, pp. 1310(5) to 1310(6))
148. None of these officers could recall receiving information about [name removed] but only Officer D said that he “definitely did not” receive it. (19 April 2016, File 2, Tab 7, p. 891(10) line 6) This officer also denied that this was the kind of information that would normally be provided to them if it was available. (ibid. p. 891(6)
149. It is apparent, from the 1992 statements made by Sergeant A, and Officers B and C, that they were in fact given a direct instruction to attempt to stop this vehicle and “check out the occupant” (Officer B) when the sighting of the red Ford Orion was communicated to them. In the first instance, the fact that it is accepted that intelligence about the car “acting suspiciously” at Whiterock Leisure Centre was communicated means that Inspector M was present when this intelligence was communicated and thereafter he communicated this information to the officers on the ground. If Inspector M’s evidence was to be accepted it would mean that an integral part of the intelligence, the fact that the car was being “used” or “driven” by [name removed] would either not have been communicated to him, or for some reason not communicated to the men on the ground, yet Inspector M has accepted that had he “been in possession of that information it would have been passed to my officers on the ground”. (10 March 2016, File 1, Tab 4, p. 462 lines 1 – 10) Moreover, Sergeant A, and Officers B and C were instructed to stop the red Ford Orion, and made their way to Andersonstown RUC Station to effect the stop, although the instruction could not ultimately be actioned because military surveillance failed to locate the vehicle. If that is correct then it is being suggested that TCG were directing HMSU Officers to stop a vehicle in which a known PIRA activist had just been seen and had been directed to “check out the occupant” and yet TCG would have had to deliberately withhold from those men the fact that it was believed that the occupant was a “known PIRA activist”.
150. So far as D, E and F are concerned, they are likely to have been in transit to Andersonstown RUC Station having been deployed early and were briefed by Sergeant A on arrival. It is therefore unclear whether they had been deployed when that radio transmission was made, or in response to this intelligence and thereafter briefed by Sergeant A at Andersonstown RUC Station.
151. In our submission, it is inconceivable that such information would not have been communicated to the officers and that the Court cannot accept Inspector M’s evidence on this issue. The following exchange with the Coroner is illuminating:
CORONER: Yes. So, information comes in, it comes in to the TCG. They are going to ask the Orion to be stopped that this man is seen with at the Whiterock Leisure Centre, it would be grossly negligent if the people in the TCG did not inform you of the identity of the driver because there is a prospect in trying to stop him that he might open fire on them; isn’t that right?
WITNESS: That’s correct, yes, my Lord.
CORONER: So for them not to have informed you would be a dereliction of their duty?
WITNESS: I wouldn’t have put it as strong but, yes, it wasn’t, it wouldn’t have been good practice, my Lord.
CORONER: They are putting your men in danger?
WITNESS: That’s correct. We’re better knowing who we are facing yes, my Lord.
CORONER: And you’re, to put it on your version of events, you, having this information disclosed to you now, must be absolutely astounded that that wasn’t provided on the day in question?
WITNESS: I am yes, my Lord.
(10 March 2016, File 1, Tab 4, p. 466 line 21 – p. 467 line 11)
152. As well as the inherent implausibility of the officers’ evidence on this issue, it is clear that the evidence of [name removed] being briefed to journalists on the night of the shooting is consistent with this name having been communicated to the men on the ground on the day of the shooting. Whilst it was put to witnesses that a different name had been briefed to journalists, this was based upon reliance on the military documents (Tab 8 Core Bundle). It is now apparent from Exhibit 9 that the name provided to journalists was the same as that which appears in the intelligence document, because the person of the same name made a complaint to police that his name had been given to journalists as the name of the deceased.
153. [Name removed] was seen in the red Ford Orion on the day of the shooting just an hour and a half before Pearse Jordan, then the occupant of the Orion, was shot and killed. Later that evening police at the scene advised journalists and politicians that [name removed] has been shot and killed, and yet if the officers are to be believed this is simply an extraordinary coincidence, because that name had not been provided to HMSU officers, having been withheld by TCG.
154. For the reasons outlined above, it is contended that this name was communicated to the officers on the ground at or about 3.40pm and they were then directed to stop the vehicle and establish the identity of the occupants, which they were unable to do, at that time, because military surveillance failed to locate the vehicle. Police later forcibly stopped the vehicle and Sergeant A shot the unarmed Pearse Jordan as he tried to escape from police. Then police officers at the scene in the aftermath of the shooting gave briefings to journalists in which they “named the dead man as another terrorist” and for the reasons outlined above we know that the name given was [name removed]. Subsequently police learnt that the deceased was Pearse Jordan rather than [name removed], someone who, although claimed as a member of the IRA, was not known to police.
155. The question arises as to what this new evidence amounts to. Given that Sergeant A has not been prepared even to admit knowledge of the information on his part, still less make the case that this contributed to his response, the inference must be that: (i) this knowledge did not provide a good reason for shooting the driver (in the sense that it was a factor that caused him to fear for his life or misinterpret the driver’s actions); but (ii) it justified his actions (in his own mind) for doing so even though the driver posed no threat.
156. In other words, the new evidence provides no justification for the shooting but it does provide an explanation why it took place at all, in circumstances where an experienced firearms officer with a proven capacity to be calm and composed under pressure shot a man in the back when he was running away and presenting no threat to anyone.
157. It is also apparent that this was indeed, as the press reports suggested (apparently on the basis of inside information), a “botched operation” in the sense that the “wrong man” was shot. The extent to which this was attributable to a “mix-up over a radio message” is likely to remain unknown in the absence of contemporary logs and records of those messages. But it is clear that Sergeant A had, at the very least, received information that a known PIRA activist with a suspected history of attacking police had been seen driving the car that he was tasked to stop and, if his current attitude towards his killing of Pearse Jordan is anything to go by, he would have regarded such a person as a legitimate target.
158. That attitude on the part of Sergeant A is reflected in his answers to questions about why he had no regrets about killing Pearse Jordan. He explained that Pearse Jordan was “a member of the [Provisional] IRA. He was on a mission…” (1 March 2016, File 6, Tab 14B, p. 1954 lines 16 – 21) When it was put to him that the reason he felt justified in having shot the deceased dead was that he was in the IRA and had apparently been involved in the activities in Arizona Street, he replied: “That’s correct”. (ibid. p. 1956 lines 15 – 19) He subsequently disputed this (ibid. pp. 1958 and 1960) but it is consistent with the absence of anxiety noted by Dr Crowther.
159. The alternative explanation he offers for his current lack of regret is that: “I have no regrets about it because of the circumstances of the actual shooting”. (1 March 2016, File 6, Tab 14B, p. 1960 lines 14 – 15) Needless to say, the circumstances of the shooting provide no explanation for a current lack of regret that Pearse Jordan died as a result. A lack of regret for a death that occurred in the circumstances as they are now known remains explicable only on the basis that, in Sergeant A’s view, Pearse Jordan deserved to be shot dead whether or not he posed a threat to him or the other officers present. If that is his attitude about someone who had no known record of terrorist activity, it can safely be inferred that he would have had the same attitude about someone who had an extensive record of such activity.
160. The fact that, before it was learned that the police had shot the “wrong man”, the incident had some of the hallmarks of the so-called “shoot to kill” incidents investigated 10 years earlier by Messrs Stalker and Sampson also explains other aspects of this matter, including in particular: the attendance of senior Special Branch officers prior to the debrief; the absence of notes or evidence about what took place at that pre-debrief meeting; the attendance of Officer V at the de-brief when he was on leave; the missing log entries prior to 5.03 pm; the absence of any reference to [name removed] in the briefing notes: the denial on the part of all the HMSU officers (even the officer – M – who was in the TCG Operations Room where the intelligence was received and disseminated) of any knowledge of either [name removed] or his connection to the red Orion that day; and, even their denial of knowledge of the “wrong man” story that appeared in the press.
161. The fact that not one of the officers involved in this fatal shooting was prepared to admit even hearing of the press reports, still less reading them, is particularly telling. It is simply inconceivable that this press speculation did not come to their attention. In our submission, their anxiety to distance themselves from the “wrong man” theory suggests that they were perfectly aware of [name removed]. An example of this is Inspector M who was being questioned about the press reports suggesting that this was a botched operation and contended that not only had he not read the reports, nobody within HMSU made him aware of their existence, despite his role in the incident. (23 February 2016, p. 52, line 17 – p. 54, line 24)
162. The debriefing and the missing log are dealt with in more detail below. However, in broad terms, it is submitted that the object of the debriefing was to ensure the exoneration of Sergeant A and, in the process, to expunge any reference to [name removed], presumably so as to avoid accusations of a “shoot to kill” strategy. It is alarming to reflect that, if the previous inquest verdict had stood, none of the intelligence material concerning this issue would ever have come to light.
xiv) HMSU Log – Whether the HMSU radio log produced by Officer Q represents the entirety of the contemporaneous log produced on 25 November 1992
163. Issues around the HMSU radio log go to the credibility of the accounts given by Sergeant A and others about how the deceased was shot, and are therefore relevant to the central issue, whether the killing of Pearse Jordan was justified.
164. The HMSU radio log available to the inquest is a three-page document which commences with an entry at 5.03 from Call Sign 14 (the Operations Room at TCG) to all units which stated “Blue Sierra C283 GNK mobile”. There are no entries for the period 1pm – 5pm despite the fact that HMSU officers had been deployed from 1pm, having been directed by TCG to provide support for military surveillance in relation to a possible movement of munitions in West Belfast. Moreover at 3pm additional units were deployed because of radio communications to the effect that the operation was showing signs of materialising.
165. Officer Q was responsible for manning the control desk during the operation. Inspector M was the HMSU liaison officer who would have communicated by radio with HMSU officers on the ground. Officer Q’s only role was to monitor and log radio communications from the desk to HMSU officers on the ground. Despite that, as outlined above, not a single radio communication was logged prior to 5pm.
166. Officer Q’s evidence in 2012 was to the effect that:
• “once [HMSU are] asked to do something apart from look after surveillance . . . that’s when the log starts”. (1 October 2012, File 1, Tab 2, p. 94 lines 1 – 10)
• “I’m telling you my role was to be there and record live transmissions when the operation went live. The operation didn’t go live until five o’clock”. (1 October 2012, File 1, Tab 1, p. 97 lines 24 – 26)
167. Officer Q nonetheless accepted that he would have logged transmissions to go out and intercept the Orion which were subsequently aborted. (1 October 2012, File 1, Tab 2, p. 102 lines 9 – 19)
168. In 2016, Officer Q gave evidence that he “only started the log when it became clear that the call signs on the ground were going to come into contact with the target vehicles” and thereafter stated that it was a “reaction log not a surveillance log”, (22 February 2016, File 1, Tab 2, p. 136 line 9) an expression coined by Officer Q for the first time in 2016. Thereafter he persisted in stating that he would not have recorded instructions to HMSU call signs in the log unless the instruction had been implemented, and thus would not have recorded instructions to take action which were subsequently aborted, this despite the inherent implausibility of the log keeper being able to predict, at the time that an instruction was given, that it would thereafter be aborted.
169. Inspector M’s evidence in 2016 let some support to Officer Q’s evidence in 2016 when he stated in response to questions about the absence of a log for a 4 hour period that:
“A log only commences, it’s an HMSU response log, my Lord, and it only starts when they are actually asked to do something.” (23 February 2016, File 1, Tab 4, p. 358 lines 11 – 13)
170. Again Inspector M coined the phrase “response log” for the first time in 2016. It is submitted that Inspector M’s evidence in 2016 amounted to a significant departure from the evidence he had given about the HMSU log in 2012. In 2012 Inspector M stated, in response to questions from the Coroner that “I use the log from the desk, as my basis to run down my debrief”. (4 October 2012, File 1, Tab 4, p. 204 lines 5 – 7) More significantly, when responding to questions about why he had not stopped the red Ford Orion by setting up a vehicle checkpoint, he specifically requested sight of the log in order to assist him with identifying the locations of the various call signs, indicating a clear expectation on his part that the log would record such details. (4 October 2012, File 1, Tab 4, p. 210 line 30 – p. 212 line 20) His explanation in 2012 for the absence of this information from the log, made no reference to a ‘response’ log, rather he appeared at a loss to explain the absence of the information, stating:
“The log is kept as best as possible. There is a lot going on and I can’t explain why it’s not in the log, sir.”
(4 October 2012, File 1, Tab 4, p. 212 lines 19 – 20)
171. In 2016 he sought to explain this by stating that he had intended to refer to the debriefing notes as opposed to the log, (23 February 2016, File 1, Tab 4, p. 368 line 18 – p. 370 line 15) despite having stated that the log would have used by him as the basis for running his debrief . (4 October 2012, File 1, Tab 4, p .204, lines 5 – 7)
172. It is noteworthy that both Officer Q and Inspector M, the only HMSU officers based in the Operations Room and the officers who were primarily responsible for the creation and production of the log, essentially changed their evidence and coined the phrase “reactive log” and “response log” in 2016, terms never used to justify the absence of a log in 2012, or previously.
173. It is also noteworthy that those officers who describe the log describe it as a loose leaf document which did not have sequential numbers on the top or bottom so there would be no means by which a physical examination of the document could establish if pages had been destroyed. (23 February 2016, File 1, Tab 4, p. 450 line 17 – p. 451 line 29)
174. More importantly, the evidence of M and Q, to the effect that the log would not have started until 5pm, is at odds with:
i) The evidence of other HMSU officers in terms of their expectations about what would have been contained in the log; and,
ii) The evidence of HMSU officers about what instructions were being communicated to them from TCG and specifically their instructions as to the number of occasions upon which they were given instructions to stop vehicles, instructions subsequently aborted.
Evidence of HMSU officers about their expectations of what would have been contained in the HMSU log
175. Sergeant A, who had previous experience as a log-keeper, having acted in that role in 1982, gave evidence in response to questions from Coroner’s counsel, the following terms:
“Q. Now, you were alerted to the movement of a red car on a number of occasions in the afternoon; is that correct?
A. That’s correct.
Q. And is it fair to say that on a number of occasions you were prepared to stop the vehicle but the request to stop it was rescinded so you went back into the station?
A. Yes, that’s it.
Q. And were you giving and receiving transmissions in relation to the possible stopping of the vehicle?
A. Yes.
Q. And did you yourself keep any written record of those transmissions?
A. No, none at all.
Q. And why is that? Would that have been the practice?
A. Yes, I was doing what I did on the ground. I always assumed that a log was being kept at TCG.
Q. And when you refer to a log being kept at TCG, who would the log would have been kept by?
A. One of our officers.
Q. And when you say one of your officers, what exactly do you mean by that?
A. One of our what we would referring to an int man, the intelligence operator and he would sit beside whoever was running the operation and kept a log of whatever was said over the radio.
Q. When you say our, are you referring to TCG or HMSU?
A. HMSU.
Q. HMSU. Now you have heard me refer to the orders to stop the vehicles that were rescinded?
A. Yes.
Q. Would you have expected orders of that kind and indeed orders to rescind of that kind to be recorded in the HMSU log?
A. Yes.
Q. And you’re, as we have established, you were an experienced HMSU officer; isn’t that correct?
A. That’s correct.
Q. And did you yourself have experience of acting as a log keeper?
A. Yes.
Q. And in or around 1992 can you recall what format the log took?
A. Just basically whatever the call sign they were using at TCG, possibly 0 or something, what they said and the reply from the call sign. Mine was 8. 8 I would say yeah, okay, or whatever.
Q. And I know it’s difficult at this remove in time, but can you remember was the log a loose leaf document or was it a bound book?
A. I have no idea.
MR DORAN: I wonder if the witness could be shown the core bundle? (Same handed)
A. Thank you.
Q. Sergeant A, I wonder if you could turn to tab 3, please. Do you see tab 3, that’s the HMSU log?
A. Mm hmm.
Q. And you will see on the top that the log keeper was Officer Q; is that correct?
A. Yes.
Q. Now I just want to ask you about that again. Is that familiar to you as the kind of log you would have expected to be kept?
A. Yeah. Yeah, it looks familiar, yeah.
Q. You will note that the first entry is at 5.03 in the afternoon, do you see that?
A. Yes.
Q. But there’s no log, as we understand it, for the period prior to 5.03. Now, you have indicated that you would have expected a record to be kept of the earlier movement of the vehicle; is that right?
A. Yes, I would have thought so.”
(1 March 2016, File 6, Tab 14B, p. 1899 line 2 – p. 1901 line 14)
176. In 2016, in the course of his evidence Officer V was shown the HMSU log and was asked by the Coroner
“would you be surprised, Officer, that given the nature of the operation that the log suddenly commenced at 5.03? If there had been a number of instructions to stop the Orion earlier than that – –
A. Yes
Coroner – – its’s strange that the log only commences at 5.03?
A. Well it does seem strange I can’t argue with that.”
(7 March 2016, File 9, Tab 30, p. 3097 line 28 – p. 3098 line 7)
177. Officer H confirmed, as per Inspector M’s account in 2012, that the log would be read through at the debrief to provide the sequence of events. (29 February 2016, File 4, Tab 10, p. 1382 lines 2 – 6)
178. Officer C, in describing the debrief, stated that Inspector M “just went through the sequence of events from what I imagine was the TCG log.” Suggesting that the log was available at the debriefing. Thereafter he confirmed that it was his view that: “the log probably started from when surveillance first went out on the ground”, accepting that this would be some time before three o’clock. (27 September 2016, File 2, Tab 5, p. 565 line 18 – p. 366 line 22)
Evidence of HMSU officers about instructions given to them to stop a vehicle
179. The chronology provided below details the evidence contained in witness statements from HMSU officers deployed on the ground about the number of occasions upon which they were ordered to carry out stops, which instructions were subsequently aborted.
180. Officer C gives the most detailed account of the radio transmissions received by Call Sign 12 and the various occasions upon which they were given orders, either to stop vehicles, or to prepare to move to Arizona Street, orders which resulted in HMSU units taking preparatory steps to comply with the instructions given, only for those instructions to be rescinded. It is noteworthy that Officer C was of the view that the sequence of events was read to officers by Inspector M at the debrief from the log. In his 1992 statement (File 2, Tab 5, p. 501 – 508) Officer C:
i) Described arriving in Woodbourne at 3.15pm and thereafter receiving a radio transmission about a red Ford Orion acting suspiciously in the area of the Whiterock Leisure Centre and being instructed that if the vehicle emerged, they should be prepared to stop it as a result of which the call-sign left Woodbourne and “headed at speed in the area of Andersonstown RUC Station in the event of having to intercept this vehicle at the bottom of the Whiterock Road.”
ii) Stated that he heard a radio transmission advising of the deployment of Call Signs 3 and 12 to West Belfast (these crews having been deployed early).
iii) Confirmed that they were joined by Call Sign 12 at Andersonstown RUC Station where they heard radio transmissions about suspicious activity at the rear of 2 and 4 Arizona Street and heard that the red Ford Orion was now at this location.
iv) Referred to being “told to formulate a plan to react to Nos 2 & 4 Arizona Street” as a consequence of which they were joined by 2 further call signs, 9 and 3.
v) Gave an account of hearing that the “Orion was being fronted by another car and being followed by a coal lorry – all going countrywards on the Upper Springfield Road. At this stage all 4 crews then crashed out of Andersonstown RUC Station to put a stop on the Orion but we only got to the roundabout outside the station when we were told to abort.”
vi) Confirmed learning that the Orion had returned to the rear of Arizona Street and was also made aware of the existence of a blue Ford Sierra following which he is instructed that “if these 2 vehicles emerged together they were to be stopped but if the Orion came out on its own we were to use the fact it had not tail lights as an excuse to stop it.”
vii) Stated that the blue Sierra was starting up so he drove out of the station but, was thereafter instructed that the vehicle was alone so he should “let it run” so they returned to the Station.
viii) Stated that he was informed that the Orion was believed to be about to move off so he again drove out of the station, parking outside the station, he receives a further radio transmission advising that the Orion has left Arizona Street and was travelling citywards.
181. The other HMSU officers deployed on the ground give essentially the same account, a chronology summarising the accounts of the officers is outlined below. This chronology is based upon the accounts given by officers in 1992. The officers did not depart from these accounts in any significant respect in their evidence before the Court. The issue was primarily explored in 2012 with Officer C. (27 September 2012, File 2, Tab 5, p. 527 line 7 – p. 528 line 20 and p. 538 line 8 – p. 539 line 14)
TCG Times HMSU Times
3.40pm
(Orion – WLC)
3.15pm
3.20-3.30pm
3.20pm
After 3.20pm
3.30-3.45pm (Officer C) R/T regarding red Ford Orion BDZ 7721 acting suspiciously in the area of Whiterock LC – if vehicle emerged we should be prepared to stop it. Left Woodbourne and headed to Andersonstown RUC Stn as a consequence.
(Officer C) Also heard C/S 3 & 12 making way from base to W Belfast.
(Sergeant A) R/T car acting suspiciously o/s Whiterock LC we were to do a casual stop and get details – so left Woodbourne and went to Andersonstown RUC
(Officer B) Overheard a R/T regarding red Orion acting suspiciously WLC told to prepare to stop vehicle and check out occupant – went to A’town RUC
Note – C/S 12 not on duty until 4pm – but sent out early because of extent of activity
(Officer D) Overheard R/Ts on way to A’town – briefed by A on arrival – task to back up surveillance at Arizona St
(Officer E) Arrived at A’town RUC – on way there and when arrived “constant” R/T’s given over the air. Briefed by A focus of op on Arizona St.
(Officer F) Getting a build up of R/Ts from our desk – red Orion acting suspiciously at WLC – no. of R/T’s about Orion movement – deals with no of transmissions heard over entire period
(Officer B) At A’town 5 mins when heard further crews being deployed from Lisnasharragh to assist & then heard WLC checked and no sign of Orion
4pm (Officer C) Heard R/Ts regarding suspicious activity at rear Arizona St – told to formulate a plan to react to Arizona St. (C)
(Sergeant A) R/T that red car seen at back of Arizona St – told to gather people together because in the event of something specific we would have to go to the yard and deal with it. A drew up plan re Arizona St.
(Officer B) No of R/Ts re people at A St – vehicles entering and leaving & red Orion seen there – told to formulate a plan to go to Arizona St.
(Officer D) Heard R/T that red Orion at Arizona St so moved out of stn to be in a position to react – told no action to be taken so returned and parked up. A then told to formulate a plan to search rear Arizona St.
(Officer E) Heard red Orion at Arizona St
4.30pm
(Orion at Hannahstown) (Officer C) Then heard Orion being fronted by another car and followed by a coal lorry on Upper Springfield Rd. All 4 cars crashed out of A’town to stop Orion told to abort.
(Sergeant A) Told red Orion out of yard & they were to stop it
Further R/T told to let it run.
A makes reference to coal lorry – unclear re timing
(Officer B) Heard Orion lost & then sighted again in possible convoy with coal lorry – other c/s left with view to stopping it.
(Officer D) After hearing about red Orion at Arizona St – moved out of stn to be in a position to react – told no action to be taken so returned and parked up.
(Officer E) Heard red Orion travelling country wards towards Monagh by pass and onto Upper Springfield Rd. Crews told to leave position to move closer to Orion – left A’town & told to disregard direction & return to initial location.
4.50pm
(Orion back at Arizona St.)
(Officer B) Red Orion again at Arizona St and we were asked to cater for a stop – use no rear lights as pretext to casually stop – no sign so went back into station.
(Officer D) Told to go for a stop on the Orion – casual stop to i/d driver. c/signs covering country wards as well as citywards.
(Officer E) Orion away for about 15-20 mins when heard back at Arizona St. Told to casually stop car, i/d driver and if nothing in car let it proceed.
(Officer C) Made aware of blue Sierra – if 2 vehicles together stop, if Orion on own to use fact of no tail lights to stop it.
(Officer D) Blue Sierra in the picture told if they left together both to be stopped.
(Officer F) Told about blue Sierra at Arizona St – told if both vehicles come out together stop by way of normal VCP – if Orion on own use tail lights as pretext to check vehicle out
(Officer C) Blue Sierra came out – told to let it run.
(Sergeant A) Another vehicle left A St – thinks a red Cavalier told to stop it & then told to let it run
(Officer B) Heard Orion ready to move – told about Cavalier – if 2 vehicles together to be stopped – if Orion on own stop using tail lights.
(Officer D) Told Orion alone & going citywards
(Officer E) Told Orion on move – further r/t told going citywards
(Officer F) Told Orion on the move
(Officer C) Told lights of Orion out & to use that as pretext to stop it.
(Sergeant A) Told red Orion back at A St & next time definitely going for a stop on basis of pretext re rear lights
182. It is submitted that it is evident from the accounts given by the HMSU officers deployed on the ground in 1992 that they were given a number of clear directions to stop the red Ford Orion, only for those directions to be rescinded. It is thus apparent from the evidence of these officers that the HMSU operation became “live”, to use Officer Q’s terminology, following the sighting of the red Ford Orion at Whiterock Leisure Centre. It is at that juncture that Call Sign 8 is given its first order, to stop the Ford Orion and establish the driver’s identity, and it is at this time that call signs 3 and 12 are deployed early because, to use Officer R’s terminology the operation was “showing signs of materialising”. At paragraph 50 of his Investigation Report, Det. Supt. McBurney summarised the position as follows:
“On three occasions during the afternoon HMSU callsigns were tasked by Inspector M to stop the Ford Orion, but on each occasion a direction rescinding the earlier tasking was transmitted” (File 8, Tab 26, p. 2676(13)
183. On any analysis the transmissions referred to by Officer C and the other Officers in their statements should have appeared in the HMSU radio log, even accepting Officer Q’s explanation as to when he would commence noting radio transmissions. In this respect it should also be observed that the very first entry on the radio log is inconsistent with Officer Q’s explanation of the circumstances in which he would record entries given that it simply states: “Blue Sierra C283 GNK mobile”. There is no reference to an instruction or direction given to crews in relation to the blue Sierra.
184. It is thus contended that the evidence before the Court clearly demonstrates that the HMSU log which is before the Court is an incomplete log and does not include the entries made prior to 5.03pm.
xv) Was the earlier part of the HMSU log concealed/destroyed in order to conceal the fact that police had believed that [name removed], a known PIRA activist, was the likely occupant of the red Ford Orion
185. Given that the evidence overwhelmingly points to the log being incomplete, the issue arises as to why the log was concealed or tampered with. The withholding of part of the radio log can only have been the result of a deliberate decision to withhold information about earlier aspects of the operation and the decision to do this must have taken place prior to Officer Q’s CID interview on 30 November 1992, as Officer Q was questioned about the log in the course of this interview and it is apparent that the log available at that stage is the same as that now available.
186. It should be observed in this respect that Sergeant A has acknowledged that logs could be tampered with or destroyed fairly easily, particularly given the fact that they were loose leaf documents and did not have sequential pagination. In fact Sergeant A admits to having destroyed a log when acting in the role of log-keeper in connection with Mullacreevie Park. (1 March 2016, File 6, Tab 14B, lines 1 – 24)
187. It is the next of kin’s contention that the most likely explanation is that the log would have included details of the radio transmission sent to HMSU officers in and about 3.40pm directing them to stop the red Ford Orion, in which it was believed that [name removed] a “known PIRA activist”, was an occupant, in circumstances where, just an hour and a half later the unarmed and unknown (so far as police were concerned) occupant of that same car was shot and killed by a police officer.
188. The sighting of the red Ford Orion at the Whiterock Leisure Centre is acknowledged to have been a significant event in the surveillance operation. Moreover, given the nature of the activity described, [name removed] and an unknown male “moving gear” with other unknown youths acting as “look outs” (see Exhibit 10), it was clearly relevant to the issue of whether munitions were being moved in West Belfast. It is contended that there would undoubtedly have been an entry in the HMSU log noting the intelligence received, particularly as HMSU officers were directed to get ready to stop this vehicle and moved to Andersonstown RUC Station to give effect to that instruction.
189. The evidence of Officer AA is that HMSU officers would have been aware that the red Ford Orion “was being driven by a PIRA activist on some sort of PIRA business”. (26 September 2012, File 9, Tab 29, p. 69 lines 6 – 9) For the reasons outlined above, it is the next of kin’s contention that this information was provided to HMSU officers on the ground and would have been recorded on the HMSU log. A decision was subsequently made, in all probability at the debrief to withhold that information from investigators and it was consequently necessary to conceal or destroy the log from investigators so that information about the officers’ belief that [name removed] might have been driving the car was withheld. Such an analysis is consistent with the lack of reference to intelligence about the “known IRA activist” who had been seen in the red Ford Orion prior to the shooting of Pearse Jordan. It would appear that this information was not provided to CID as such important information ought otherwise have made its way into Mr McBurney’s report.
xvi) Whether it was appropriate to conduct a debrief prior to the interviewing of witnesses by CID
190. As per the judgment of Stephens J, issues around the debriefing go to the credibility of the accounts given by Sergeant A and others about how the deceased was shot, and are therefore relevant to the central issue, whether the killing of Pearse Jordan was justified.
191. Messrs Stalker and Sampson were critical of the practice whereby HMSU conducted a debrief with HMSU officers involved in an operation involving the deployment of lethal force prior to officers being questioned by CID. Whilst their observations are also directed to the particular facts of the cases under investigation, which involved HMSU officers being advised to withhold information from CID, it is submitted that the more general criticism of the inappropriateness of debriefing HMSU officers following a fatal shooting and prior to interview by CID officers are equally applicable to the circumstances of the instant case. As Mr Stalker observed:
“The de-briefs held by senior Special Branch officers within a matter of hours of the incidents were, in my view, quite irregular and should not have taken place. The officers involved in the shooting were regarded as potential suspects and yet, not only were they comprehensively debriefed, but restrictions were placed on what they could or could not say in their subsequent statements to the C.I.D.” (Sampson, Volume II, p. 83, Part C, Vol. 4(3))
192. Thereafter he made the following recommendation:
“The policies and practices of the R.U.C. should in the future reflect the paramouncy (sic) of the C.I.D. investigations which includes the preservation of evidence and the questioning of suspects and witnesses free from any constraints placed upon that investigation by Special Branch.” (ibid. p. 84)
193. Thereafter in Recommendations made by Mr Stalker, under the heading: Dubious Procedures of Investigations, it was stated:
“In each of the incidents officers directly involved were removed prematurely from the scenes and ill-advisedly debriefed by Special Branch officers.
The vehicles and weapons used by these officers were also wrongly removed and not subjected to examination until some time after the incidents.
When such shooting incidents occur, there should be no debriefings of officers before interviews with the C.I.D. unless on the explicit instructions of a Chief Officer who will later accept responsibility.” (Sampson, Volume II, p. 92, Part C, Vol. 4(3))
194. It is of course noteworthy that the conduct of the police investigation in the instant case has parallels with what occurred in the Stalker Sampson series of investigations in that, not only were HMSU officers debriefed prior to being interviewed by CID, men and one of the vehicles involved in the incident was removed from the scene.
195. Mr Stalker’s recommendations in relation to debriefings were thereafter adopted by Mr Sampson in 1987, wherein he stated:
“The removal of men, vehicles and weapons from the scene following by a Special Branch debrief before they were made available to CID officers, I agree with the recommendations made by Mr Stalker on this issue.” (Sampson, Volume II, p. 101, Part C, Vol. 4(3))
196. Both Officers M and V who were responsible for the conduct of the debrief, deny any knowledge of those recommendations or any revsiew of HMSU procedures in this regard. It is accepted that they would not have been privy to the Stalker Sampson reports and if, as appears to be the case, no internal review of this procedure occurred, it is apparent that the Chief Constable failed to act upon these particular recommendations.
197. As a consequence, Sergeant A, the suspect who was ultimately interviewed under caution, was given a platform through the debrief to present his version of events to all his close colleagues and the key witnesses to the shooting. While it is clear that no proper steps had been taken at the scene to separate officers in order to ensure that the accounts given by each of them were made independently of one another the debrief provided a platform for Sergeant A to provide his version of the shooting, in the presence of the key witnesses.
198. Officer V has sought to justify the debrief as a step taken for the assistance of CID. He has confirmed in evidence that he was present at Lisnasharragh along with 2 more senior officers from Special Branch before the debrief took place, and that it was within their power to prevent the holding of a debrief until such time as officers had been interviewed by CID. (9 March 2016, File 9, Tab 30, p. 3109 line 28 – p. 3110 line 3) Inspector M, in contrast, appeared to recognise that it would have been preferable for CID to interview the men, and contended that it was the anticipated delay in the arrival of CID which led to the decision to conduct the debrief. (4 October 2012, File 1, Tab 4, p. 243, lines 23 – 30; ibid. p. 248, lines 18 – 21; 5 October 2012, ibid. p. 304, lines 16–29 and 23 February, ibid. p. 430, lines 1 – 18)
199. Officer V also accepted that it was within their power to direct officers to make complete notebook entries, independently of each other, as a means of enabling CID to have access to each officers’ independently produced contemporaneous account. (9 March 2016, File 9, Tab 30, p. 3112 line 2 – 6) On this issue Inspector M accepted in evidence that it would be contrary to his, and his officers’, training “deliberately to avoid entering evidence in your notebook” and thereafter confirmed that he understood that subsequent to 1983 and up to and including 1992 “all incidents would from then on be recorded in full in your notebooks”. (4 October 2012, File 1, Tab 4, p. 275 line 24 – p. 275 line 25) Yet, as he accepted, in fact HMSU officers involved in this incident failed to properly record their accounts of what had occurred in their notebook, reverting to the impugned practice of referencing their statements. It is apparent that neither Officers V nor M, both of whom would have been aware of the officers’ obligations took any steps to seek to ensure compliance with those obligations in relation to the shooting of Pearse Jordan in November 1992. Such an approach would have gone some way to ensuring that officers gave accounts independently of each other and would undoubtedly have assisted CID in the conduct of their investigation. It is submitted that, had assisting CID been the impetus for Officer V’s conduct, then taking steps to ensure that officers’ complied with their training in relation to the completion of notebooks would have been an important step, and the failure to do so belies his evidence in this issue.
200. It is submitted that it is apparent that, even absent deliberate collusion on the part of the officers present, conducting a debrief in which Sergeant A was permitted to give his account of events before officers and close colleagues, who were bound by strong bonds of loyalty to Sergeant A and who were inherently sympathetic to his position , would undoubtedly have influenced their evidence. The debrief created an opportunity for Sergeant A’s fellow HMSU officers to hear his account and to tailor their accounts accordingly, or at the least to give accounts which would not undermine his evidence on the central issue. It meant that, in reality, no HMSW witness to the shooting gave their account independently of Sergeant A, the suspect.
201. Moreover, had one of the witnesses to the shooting wished to give an account which would undermine Sergeant A’s version of events, the decision to conduct a debrief created the most difficult atmosphere possible for an officer in that position. He was presented with a situation in which his colleague Sergeant A was giving his account to all his fellow HMSU officers in the presence of their senior officers. It is hard to imagine a more difficult environment within which to contradict or undermine Sergeant A’s account. Moreover, that account, by means of the notes of the debrief, was to be presented to CID as essentially the first contemporaneous note of what had occurred, thus creating a credibility issue for an officer who subsequently sought to give an account at variance with the debrief notes to CID.
202. It is submitted that in no other situation would a suspect in a lethal force incident be permitted an opportunity to sit down with his witnesses prior to being interviewed by police about his actions and the reasons why a suspect ought to be separated from potential witnesses are no less valid because the suspect is a police officer. Even absent the history of what occurred in 1982, the decision to debrief a suspect and his witnesses prior to their providing their independent accounts or being interviewed by CID was self-evidently inappropriate and ought to have been recognised as such by any competent police officer. Officers M and V in particular were aware of the manner in which debriefs had been misused in 1982 and had contributed to the misleading of CID investigators and the DPP in the 1982 investigations into lethal force incidents. Had Officers M and V genuinely wished to assist CID investigators they would have taken steps to isolate Sergeant A from his colleagues and further taken steps to ensure that officers complied with police training by producing contemporaneous and independent accounts of what occurred.
xvii) Whether the primary purpose of the de-brief was to facilitate the exoneration of Sergeant A
203. It is the next of kin’s contention that the primary purpose of the debrief was to facilitate the exoneration of Sergeant A. It is submitted, as outlined above, that the debrief was inappropriate on any analysis, in that it created a forum whereby Sergeant A could give his account of events and in so doing influence the evidence of key witnesses, ensuring that no police witness gave his account independently of Sergeant A and that all police witnesses understood his case and could tailor their evidence accordingly.
204. It is contended moreover that far from being an unintended consequence, this was the primary purpose of the debrief. Even acknowledging the delay on the part of CID in attending to the interview of the Sergeant A and his colleagues there were steps open to the senior officers Officer V and Inspector M to assist CID whilst ensuring that the evidence of individual witnesses was not tainted by hearing the accounts of others, as outlined above.
205. In this respect the attendance, prior to the debrief, of Officer V’s senior officers from E Department, one of whom has been identified as P97 (an officer who had been in Special Branch during the incidents which resulted in the Stalker Sampson investigations) raises concerns. No explanation has been offered for their attendance or their role in the process. No statements were made by those officers as to why they attended and what they discussed with Officer V, who claims to have no recollection of the discussion or the reasons for their presence. No notes of their meeting have been provided, either by V or the officers themselves. If Officer V had come in (off leave) simply to supervise a regular debrief, it is difficult to see why it was necessary to consult with two more senior officers prior to doing so. This is a significant gap in the evidence and gave rise to the suspicion, at least, that these more senior officers attended and met with Officer V prior to the debrief rather than after it because the purpose of the meeting was not simply to ascertain the facts (which would normally emerge from the debrief) but to ensure that the debrief would be conducted in such a way as to produce an agreed narrative that exonerated Sergeant A. The failure on the part of the PSNI to fill this evidential gap elevates the suspicion into a reasonable inference to this effect. It is also notable in this regard that, although Inspector M claimed not to know how the shooting had occurred, it appears from Officer V’s account that M briefed him about the shooting before the de-brief took place, which suggests that – contrary to their assertions – M and A discussed the matter before the debrief.
206. It is moreover submitted that the decision to defer Dr Crowther’s medical examination of Sergeant A is inexplicable absent a desire that Sergeant A should give his account in the presence of his fellow officers. Dr Crowther’s only purpose in attending Lisnasharragh was to examine Sergeant A and to medically assess his fitness. Officer V is clear in his evidence that Dr Crowther was present and available prior to the debrief (Statement 10 December 1992, File 9, Tab 30, p. 2982) and has provided no explanation as to why, given his availability, Officer V did not ensure that Sergeant A was immediately medically examined. (9 March 2016, File 9, Tab 30, p .3119 line 2 – p. 3121 line 3)
207. It is significant that HMSU as a unit had a history of using debriefs, following lethal force incidents involving their officers, in order to fabricate accounts for presentation to CID investigators. Crucially, the key personalities involved in organising the debrief, Officers V and M both played key roles in providing fabricated accounts to CID investigators in 1982, whilst Sergeant A had also been involved in telling lies to CID investigators and in destroying evidence in the form of log sheets.
208. It is the next of kin’s case that the Court should conclude that Officer V and Inspector M have lied to this Coroner’s Court and that their evidence seeking to justify the holding of a debrief cannot be believed. Moreover, the fact that they have lied before this inquest illustrates that, far from having learnt lessons from events in 1982, both officers continue to be prepared to withhold information and tell lies in order to protect fellow officers involved in lethal force incidents. It is proposed to deal with each in turn.
Officer V
209. Officer V was the HMSU Inspector in 1982 and was responsible for briefing his officers and for conducting debriefs. Officer V had a role, either in briefing, or debriefing officers in relation to each of the three shooting incidents which occurred over a 4 week period in 1982 and which led to allegations of a shoot to kill policy. These shootings were the fatal shooting of Gervaise McKerr, Eugene Toman and Sean Burns at Tullygally East Road on 11 November 1982; the fatal shooting of Michael Tighe; and, the shooting of Martin McCauley on 24 November 1982 in a hayshed at Ballynerry Road; and the fatal shooting of Seamus Grew and Roddy Carroll on 12 December 1982 at Mullacreevie Park. These shootings were investigated initially by CID and following failed prosecutions in relation to the Tullygally Road and Mullacreevie Park shootings, police officers from the Greater Manchester Police conducted a further investigation, the DPP having directed the Chief Constable to investigate whether police officers, including in particular Officer V, had conspired to pervert the course of justice. (File 14, pp. 4223 – 4226, in particular pp. 4224 – 4225 reference Officer V known as P8 in the Stalker Sampson cases) The incidents collectively will be referred to as the Stalker Sampson cases and the individual incidents will be referred to by the place names where the incidents occurred.
210. Counsel for the next of kin have been permitted to question Officer V about these incidents because they go to his credibility as a witness.
211. It has been suggested and is submitted that Officer V lied to the Coroner’s Court in 2012 and also in 2016 about the nature of his role in 1982. It is submitted, as will be outlined below, that the evidence before this Court, including the recently disclosed DPP correspondence in relation to each of the three shooting incidents in 1982, clearly demonstrates this. Specifically it will be submitted that:
i) Officer V played a central role in organising HMSU officers to tell lies to CID officers in 1982 about their role and involvement in lethal force incidents, a role he sought to diminish, particularly in 2012;
ii) Officer V personally lied to CID officers in 1982 and 1983 and in doing so misled the DPP. Contrary to his evidence, those lies persisted after a secret file was sent to the DPP and after officers were advised that they were free to co-operate with the investigation ‘without constraint’ and that they were not obliged to withhold information by virtue of the Official Secrets Act. Those lies were not withdrawn until the Stalker Sampson team investigated these incidents, an investigation directed by the DPP into the question of whether officers, including in particular Officer V, had perverted the course of justice.
iii) Contrary to his evidence HMSU officers collectively were prepared to persist with the lie about Mr Grew crashing a Vehicle Checkpoint (“VCP”) and injuring a police officer until investigations by CID conclusively established that no such event had occurred. Moreover, it appears, that they had been prepared to give evidence in the trial of Constable Robinson repeating this untruth.
iv) The lies told were not mere ‘omissions’ as Officer V sought to characterise them, but involved the fabrication of ‘evidence’ designed to mislead CID officers and the DPP. Critically, some of the lies, including lies told by Officer V, lent support to the ‘justification’ advanced by those who deployed lethal force. In other words the cover-stories tended to exonerate those who had deployed lethal force – in particular, the lie told by Inspector M about the armed man said to have been seen outside the hayshed in Ballynerry, and the lie about Mr Grew crashing through a VCP and injuring a police officer.
v) These lies went well beyond any need to protect sources. In the case of the lie about seeing the gunman outside the hayshed at Ballynerry the contention that the lie was told to protect the life of a source was itself an untruth. Officer V himself acknowledged that the lie about Mr Grew’s car crashing through a checkpoint served no apparent purpose, although it was an important element in the defence of those who deployed lethal force.
vi) Officer V lied in the course of his evidence into the death of Pearse Jordan in 2012 and repeated those lies in 2016 and has perjured himself in the course of this inquest.
212. In the aforementioned circumstances Officer V’s testimony should be regarded as entirely discredited and he should be regarded as a witness prepared to lie to protect the reputation of his officers, as he persisted in doing throughout his evidence to this inquest. Given his history and his dishonesty it is submitted that the appropriate inference to be drawn from Officer V’s role in the debrief was that it was conducted in order to facilitate the exoneration of Sergeant A.
213. Officer V was questioned in 2012 about his role in relation to each of the three 1982 lethal force incidents. On that occasion, counsel for the next of kin faced restrictions in the questions which could be asked of him because, although the next of kin had access to Officer V’s own statements, the Coroner had ruled that the Stalker Sampson narrative reports could not be disclosed. That meant that further issues arising were explored with him for the first time in the current proceedings. Additionally disclosure relevant to Officer V’s role in 1982 has been provided over the currency of these proceedings, including in particular, a transcript of the evidence of Constable John Robinson during his trial for the murder of Seamus Grew and excerpts from the DPP correspondence file, which included correspondence exchanged between the DPP and the RUC in relation to the investigations into the Stalker Sampson cases.
214. In the course of questioning about his role in 1982 Officer V sought to significantly downplay: the nature and seriousness of the lies told to CID; his role in organising the telling of lies; and his role in directly lying to CID and the DPP. It is not proposed to review each of the lies told by Officer V in the course of the 1982 investigation but to focus in particular on Officer V’s contention in 2012, which he persisted with in 2016 that:
i) The lies told were necessary to protect the life of a source.
ii) He made a secret statement to the DPP (which he gave to P13) and which was submitted in a secret folder to the DPP, in which he disclosed every detail of the lies which had been told by him and his men so that the DPP would have full information before arriving at any decision as to whether or not to prosecute. (8 October 2012, File 9, Tab 30, p. 3005 line 30 – p. 3006 line 29)
iii) This statement was made at the same time, or shortly after he was involved in making false statements, and in particular the false statement about Mullacreevie Park. (8 October 2012, File 9, Tab 30, p. 3029 line 23 – p. 3032 line 11)
iv) Once the constraints of the Official Secrets Act had been lifted “subsequent statements to that were all honest and open and exposed all the intelligence that we were in possession of”. (8 October 2012, File 9, Tab 30, p. 3026, line 3 – 11)
215. Officer V made statements in relation to each of the three shooting incidents to CID investigators and all are detailed in the attached chronology. Significantly, on 23 February 1983 he made a statement about Mullacreevie Park in which he stated that upon returning to Gough Barracks:
“I also learned that one of my men had been injured at the VCP Keady Road which Grew’s car had earlier breached. On establishing his injuries I instructed him to be taken to hospital for examination and treatment.” (File 13, Tab A, pp. 3856 – 3857)
216. It is common case that this refers to an officer known as P42 who was not injured in a VCP which Seamus Grew drove through but was instead injured in a car crash between a military surveillance vehicle and an HMSU vehicle.
217. On 25 April 1983 the RUC Investigating Officer forwarded his file in relation to Mullacreevie Park to the DPP. He recommended no prosecution of the officers who had deployed lethal force. In making that recommendation he placed some weight on the fact that Mr Grew had, as he understood matters, driven through a police checkpoint, injuring Constable P42 which he stated “precipitated the police response.” Mr Stalker also observed that “Superintendent MITCHELL (the CID investigator) certainly takes the view that something or somebody was in the car which had to be kept from police”, which explained Mr Grew’s actions in driving through the checkpoint.
218. It was accepted by Officer V that his particular lie was entirely unnecessary in terms of protection of sources, (9 March 2016, File 9, Tab 30, p. 3160, line 11 – p. 3161 line 10) but significantly lent support to the justification being advanced by Constables Robinson and P31 for their recourse to lethal force, and in fact they expressly relied upon Mr Grew’s alleged actions and injury of a police officer, as providing part of the explanation as to why they considered stopping Mr Grew’s car such a priority.
219. It was suggested to Officer V that his statements of 20 May 1983 in relation to Tullygally Road and Mullacreevie Park , were part of the secret file sent to the DPP, which it was suggested had been sent under cover of a letter of 25 May 1983 sent by the Chief Constable in duplicate to the DPP in relation to Tullygally Road and Mullacreevie Park. (9 March 2016, File 9, Tab 30 p. 3174, lines 12 – 16) He initially accepted that this was the case, when referred to the transcript of his interview by the Stalker Sampson team which in turn referred to his having made a statement on 20 May 1983 at the request of P13 which was to be sent to the DPP. (ibid. p. 3179, line 1 – p. 3180 line 11) This letter from the Chief Constable stated:
“1. Additional statements have now been made available to Assistant Chief Constable ‘C’ Department under ‘SECRET’ cover.
2. These statements have been made by:-
a. Special Branch officers . . .
b. Surveillance officers . . .
c. Briefing and debriefing officers attached to Special Branch and deal with the precise briefing the SSU officers received immediately prior to the fatalities and their debriefing immediately following the incidents.
From these statements it is now clear that, contrary to what the CID investigators of the deaths were led to believe and subsequently reported, both fatal shooting incidents occurred during fairly sophisticated covert anti-terrorist operations which has as their common aim the apprehension of desperate armed terrorists bent on murderous missions.
The reasons advanced for previous non-disclosure of the truth to CID are, briefly, that the disclosure of the total background to the incident and the true identity and role of the SSU would be damaging to the whole of the anti-terrorist effort.
. . .
5. I am equally satisfied that those who withheld evidence from the CID investigators believed that they had not alternative but to do so under the terms of the Official Secrets Acts and therefore they did not commit an offence contrary to Section 5 Criminal Law Act (NI) 1967.
6 . . .
a. Is it now considered appropriate that the statements indicated at 2 can be made available for inclusion in the open investigation file and, therefore, available to the investigators?
b. In view of the importance which must be attached to the fact that when interviewed, the officers concerned in the shooting incidents felt constrained by their obligations under the Official Secrets Acts would it be proper now to apprise them that these obligations no longer applied and that, subject only to the usual Judges Rules caution, the were free to exercise their own judgment as to how they would answer further questions regarding these incidents?” (File 14, Tab A, p. 4167 – 4168 and Tullygally Road, ibid. p. 4232 – 4233)
220. P13 has since confirmed that the documents he was shown from the file, including the letter from the Chief Constable and Officer V’s statements were consistent with this having been the file he prepared for the DPP. (File 9, Tab 31, p. 3217(5) line 21 – p. 43 line 28)
221. This letter was sent in duplicate. Attached to the letter contained in the Tullygally Road East file, was a further statement from P8 (Officer V) dated 20 May 1983 which includes additional information about the briefing and specifically referencing Eugene Toman and Sean Burns, which had not been contained in the earlier statement. Attached to the letter contained in the Mullacreevie Park file was a further statement which includes additional information about the briefing and what had been said to officers about Dominic McGlinchey, Seamus Grew and Roderick Carroll. However this statement did not:
i. Make any reference to military surveillance;
ii. Refer to the fact that a Special Branch officer had crossed the border into the Republic of Ireland in order to locate Mr McGlinchey;
iii. Refer to the car crash between military surveillance and HMSU in which P42 had sustained injuries;
iv. Correct the misinformation about the manner in which P42 sustained his injuries by advising that Mr Grew’s car had not driven through a VCP injuring P42;
v. Advise that a Special Branch officer had driven the vehicle which gave chase to Mr Grew’s car and had been at the scene of the shooting;
vi. Advise that in order to remove any reference to the Special Branch officers, cars and personnel had to be relocated in order to recreate the scene without his being present;
vii. Advise that in order to achieve this change of personnel Const Brannigan, who had been off-duty, was told that he should pretend to have been on duty and should make a claim for overtime and expenses to lend support to that cover-story.
222. It is of particular note that this statement did not correct the detail about the Vehicle Checkpoint in circumstances where Officer V had personally disseminated this piece of misinformation to CID in his own statement of February 1983.
223. It is the next of kin’s case that these 2 files submitted by the Chief Constable under ‘’secret’ cover, represent the secret file being referred to by Officer V in his evidence before the Court and the following matters support that conclusion:
i. When answering questions from the Stalker Sampson team about Tullygally Road he expressly states that he made a further statement at the direct request of P13. “This was to be under “Secret” cover and was to be submitted separately to the Director of Public Prosecutions. I was told I could disclose all the facts covering the events of the 11th November, 1982 and I understood it was for the D.P.P.’s eyes only and it would not be submitted in evidence in courts.” (File 13, Tab A, pp. 3881 – 3882)
ii. Officer V confirmed that he provided his statement to P13.
iii. P13 confirmed this and confirmed that the file, including the covering-letter, was consistent with what he would have expected to have been contained in the secret file prepared for the DPP.
iv. P13 was clear that any statement prepared would have been retained by Special Branch, the Chief Constable has confirmed that the Next of Kin have received all statements made by Officer V in connection with the Stalker Sampson cases.
v. P13 confirmed that, had a statement been made by Officer V to him for the attention of the DPP he would have provided it to the DPP and he did not destroy or conceal any statement made by Officer V. (19 April 2016, File 9, Tab 31 p. 3217(2) line 22 – p. 3217(3), line 28) If Officer V is telling the truth P13 must have lied and his evidence was not challenged by the Chief Constable.
224. Officer V also gave evidence to the effect that both he and his officers were anxious to tell the truth and did so as soon as possible. However a review of the papers illustrates that this was not the case. After the “secret” file is submitted to the DPP a meeting was held between the DPP and ACC Whiteside and P13. It is apparent from the notes of that meeting and the references to a Vehicle Checkpoint that the DPP were now being advised that, contrary to the statements previously provided, the checkpoint on the Keady Road had been set up deliberately rather than fortuitously. However, the “lie” that there had been a VCP at Keady Road, which Mr Grew had driven through, was being maintained, albeit it was now suggested that it had been set up deliberately rather than fortuitously. (File 14, Tab A, pp. 4172 – 4178) This is also clear from a statement prepared by P13 dated 6 June 1983. (File 14, Tab A, pp. 4179 – 4180)
225. On 22 June 1983, the DPP, having received additional statements, directed that a senior officer should “immediately assume personal responsibility for the continued conduct of the investigations, for ascertaining the full information and evidence relating to each case and for furnishing the results of his investigations to me.” The DPP also wanted further information in relation to Ballynerry Road and the briefing of officers involved in that incident. This led to the appointment of Deputy Chief Constable McAtamney to investigate all three incidents.
226. On 8 July 1983 the DPP issued a further Interim Direction in which he directed the
“investigating officer to approach the members individually and to inform each that he is authorised by the Chief Constable for the purposes of this enquiry and of any proceedings to which it may give rise to say anything he wishes about the facts of the case without any of the constraints which existed when he made his previous statement or statements. The Attorney General has agreed, and each member must be informed, that no prosecution will be brought against him for any breach of the Official Secrets Act in respect of anything which he says in accordance with the Chief Constable’s authorisation.” (File 14, Tab A, pp. 4184 – 4185)
227. A copy of the authorisation was attached to the letter and is in the terms outlined above.
228. On 22 July 1983 the RUC sent further correspondence to the DPP including additional statements in compliance with the DPP’s direction. Included is the statement from Officer V dated 20 July 1983 (File 13, Tab A, pp. 3869-3870) which statement he was shown in the course of his evidence and which was referred to as J5 in the transcript. (9 March 2016, p. 114, line 12 – p. 116, line 9) This statement relates to Mullacreevie Park and expressly references the statement contained in a secret file compiled by P13. In the statement he expressly references the Official Secrets Act as having precluded him from giving a full account previously. However, despite the assurances provided by the Chief Constable Officer V again fails in this statement to correct any of the misinformation (referred to at paragraph 220 above) which HMSU officers had given to CID officers, and by extension the DPP.
229. Thus having been given a further and unambiguous opportunity to provide the DPP with the full truth about the incident at Mullacreevie Park, and having been expressly advised that the Official Secrets Act did not prevent him from telling the truth, Officer V, contrary to his evidence to the Coroner’s Court, fails to take that opportunity and does not even correct the lie he told in his first statement about the HMSU officer being injured as a result of Mr Grew breaching a vehicle checkpoint. It should be noted in this respect that Officer P13 was clear, having seen the terms of the pro forma provided to HMSU officers, that it would have been his expectation that officers were then free to tell the truth to CID and that subsequent to the lifting of Official Secrets Act, none of the senior officers directed HMSU officers to persist in lying to CID. (File 9, Tab 31, p. 3217(13), line 11 p. 3217(17) line 2)
230. In fact it is clear that all HMSU officers (including it should be noted Sergeant A) persist with this lie despite Officer V’s protestations as to their collective unwillingness to make false statements and their anxiety to tell the truth. Thus on 25 July 1983, Constable Brannigan, who we know was not on duty on the night in question, made a further statement to CID in which he describes having been on duty on the night in question and refers to receiving a radio message to the effect that Grew’s Allegro had gone through a VCP. (File 14, Tab A, pp. 4205 – 4206)
231. In this respect the Court is reminded that Sergeant A accepted that he “went along with” the account of Seamus Grew and Roddy Carroll crashing through a police checkpoint and injuring a police officer in the process before other police gave chase. (17 October 2012, File 6, Tab 14B, p. 1852)
232. Mr McAtamney recommended the prosecution of Constable Robinson for the murder of Seamus Grew and it is the pursuit of the prosecution by the DPP and the continued scepticism of the DPP and their Senior Counsel, Mr Campbell QC (as he then was) about aspects of the evidence which they will be required to present to Court that results in the truth emerging about the non-existent VCP at Paper Mill Bridge. (File 14, Tab A, pp. 4209 – 4211)
233. Thus in correspondence dated 12 October 1983, the DPP refers to a conference which has been held with senior counsel and indicates that “senior counsel and I are concerned that the Director is still not in possession of the full facts in relation to the events of 12 December 1982.” Specifically they express scepticism about “whether or not such a road block existed”. The correspondence also raised queries about Constable Brannigan’s role and directed that a statement be taken from P48 (the Special Branch officer who had been in the Republic of Ireland and who had driven the car in which Mr Robinson and P31 were passengers when they shot and killed Mr Grew and Mr Carroll). (File 14, Tab A, pp. 4209 – 4211)
234. P48 when interviewed made a statement but then advised that he was not signing the statement based on legal advice. As a consequence Mr McAtamney advises the DPP that he believes that P48 would, if given assurances, tell the truth, and advise that there was no VCP at Paper Mill Bridge (Keady Road) and that investigations he has conducted undermine the evidence of HMSU officers on this issue. The correspondence is also significant in acknowledging that the “existence or non-existence of a VCP is a very important element in the case” (against Constable Robinson). (File 14, Tab A, pp. 4212-4213) Thereafter Mr McAtamney outlines the evidence he believes that Inspector P48 will give. (File 14, Tab A, pp. 4217 – 4218)
235. P48 made further statements leading Mr McAtamney to write to the DPP stating:
“As the result of P48 co-operation we have now established the true facts and sequence of events in the incident.” (File 14, Tab A, p. 4219)
236. P48’s statement included the following information that had not been made available to CID or the DPP before November 1983, specifically it confirmed that:
i) P48 had crossed the border in pursuit of Mr McGlinchey.
ii) An HMSU vehicle and military surveillance vehicle were involved in a road traffic accident and that Constable P42 who was alleged to have been injured in the ‘Road Block’ was the front seat passenger in the police car involved in the accident. This is where he received his injuries and not at the alleged ‘Road Block’.
iii) Mr Grew’s car had driven past the road traffic accident, unbeknownst to either HMSU or military surveillance but witnessed by P48.
iv) An officer radioed in the information that Mr Grew’s car had passed the accident and was heading towards Armagh.
v) “[T]here never was a road block” and “also brings into question the role of Constable Brannigan and if he was on duty at all on 12 December 1982.” (ibid. pp.4219 – 4221)
237. Thereafter Mr McAtamney interviewed HMSU officers again stating:
“I have interviewed the seven members of the two car crews under Sergeants P10 and P40 in relation to the ‘Alleged Road Block’. They are insisting that all their statements are correct and they did not wish to alter or add anything.
When Inspector P48 and Constable McCready came forward and made statements the ‘Road Block’ crews sought legal advice as they could see themselves in a very delicate position and most, if not all, were anxious to tell the truth.
I understand that they have been advised to say nothing which will preclude either the prosecution or defence calling them as witnesses. It also weakens Robinson’s defence for ‘justification’ and leaves him to defend his actions at Mullacreevie Park.” (ibid. p. 4221 Emphasis added)
238. Thus, and contrary to the evidence of Officer V to this inquest, it appears that HMSU officers were quite prepared to persist in lying to CID and the DPP until their lies were exposed by P48 being prepared to tell the truth. Even then they did not tell investigators the truth refusing to make further statements about the matter. It seems apparent, moreover, that some had been prepared to tell the lie in defence of Constable Robinson who faced trial for the murder of Seamus Grew and thus were willing to tell lies to a court of law, presumably while others, including Officer V and Sergeant A were prepared to stand by and allow that to happen.
239. On 29 March 1984, Constable John Robinson gave evidence in his trial for the murder of Seamus Grew and accepted in his examination in chief that he had persisted in lying about the VCP even after he had been given the assurance about the Official Secrets Act. (Transcript evidence of John Robinson R v Robinson File 13, Tab A, p. 3910, Q 1 – Q 9)
240. That the account of Seamus Grew crashing through the road block had been relied upon by Constable Robinson to lend support to his justification for deploying lethal force is evident from portions of the cross-examination, as appears from the following excerpts.
“Q. 10 And before that: “When the car turned in to Mullaghcreevie Park it was then our intention to overtake it and stop it before it could get into the middle of the estate which I knew was a hard Republican area. My reason for this was based on my knowledge that the car had a short time earlier driven through a police VCP and that a policeman had been injured. I didn’t know if he had been injured by the car or whether its occupants had opened fire on the police at the VCP and that he was injured by gunfire. I felt it was important to stop the car at that stage as I knew the driver had a good reason for not stopping at the VCP and there was a strong possibility that those in it were armed.”
Now that is your statement on 19 December. Would you agree with me that in terms you are giving as your reason for stopping it before the car got into the estate, the fact that the vehicle had been through a police VCP and that a policeman had been injured? A. That is the reason I gave, yes.” (File 13, Tab A, p. 3910 (14)) (See also, File 13, Tab A, pp. 3914 – 3915, Q 32 – Q37)
241. It should be observed that, far from considering that Officer V had assisted him, the DPP on 11 April 1984 directed that an investigation be conducted in order to establish whether police officers were guilty of the offence of perverting or attempting to pervert the course of justice or any other offence in connection with the investigation of the Mullacreevie Park shooting incident. He specifically identifies the statements he received from Officer V (and also Constable Brannigan) as requiring investigation given the:
“contradictions, divergences and discrepancies which exists within the accounts given by individual witnesses, as between one witness and another and as between the evidence of such witnesses and the defendant Robinson.” (File 14, Tab A, pp. 4223 – 4224)
242. HMSU officers persisted in lying to CID investigators investigating the deployment of lethal force in Mullacreevie Park, over a period of 11 months. Some, it appears, were prepared to lie about the matter in a criminal court in defence of Constable Robinson. Others, Officers V and Sergeant A included, remained silent, about this fact. The evidence demonstrates the extent to which HMSU as a unit were prepared to lie to secure the exoneration of a colleague facing accusations of murder. Significantly, those lies commenced with the debriefs that post-dated the shooting incidents and HMSU officers, to a man, persisted with the lies until exposed.
243. It is contended that Officer V perjured himself in this inquest, in 2012 and 2016 and that the appropriate inference to draw from the decision to conduct a de-brief of HMSU officers prior to their being interviewed by CID investigators was to ensure that, again, HMSU officers would ensure the exoneration of one of their colleagues for the unjustified shooting of Pearse Jordan.
Inspector M
244. Inspector M was the HMSU Liaison Officer stationed at Castlereagh during this operation. He is thus a key witness in relation to the planning and control of this operation addressed further below. He was also the officer who conducted the debrief. As with Officer V it is contended that the Court should conclude that Inspector M has lied in significant respects to this Coroner’s Court and that it is submitted that his evidence seeking to justify the holding of a debrief cannot be believed.
245. Inspector M was a Sergeant in the HMSU in 1982. He had an indirect involvement in the Tullygally Road incident in which Gervaise McKerr, Eugene Toman and Sean Burns were killed inasmuch as he received statements from Messrs Brannigan, Montgomery and Robinson in the aftermath of the shooting. He was directly involved in the Ballynerry Road shooting in which Michael Tighe was killed and Martin McCauley injured, having fired 33 shots, 30 from his sub machine gun and a further 3 from a pistol he held. He was also the officer who claimed to have seen a gunman outside the hayshed, that sighting been given as the reason why HMSU officers went to the hayshed. He subsequently gave evidence in the trial of Martin McCauley for possession of firearms. He was indirectly involved in Mullacreevie Park inasmuch as he signed off on Constable Brannigan’s overtime in circumstances where Constable Brannigan had been off-duty on the date of that shooting.
246. Inspector M also had a role in the operation which led to the fatal shooting of Neil McConville in 2003. In that operation he was again in the operations room when the operation occurred and was the subject of criticism by the Police Ombudsman in relation to his conduct during their investigation into Mr McConville’s death. The Police Ombudsman’s report in relation to Mr McConville’s death also discusses the strategy of ‘stopping a vehicle from behind’. This will be addressed in the section entitled Planning and Control.
247. It is submitted that Inspector M is discredited as a witness before this inquest, both as a result of his testimony about the incidents in 1982 and 2003 as follows:
i. Inspector M presents before this Court as a witness in respect of whom LJ Kelly expressed “considerable doubt” about his assertion that Martin McCauley and Michael Tighe pointed a rifle in their direction. Thus he expressed considerable doubt about Inspector M’s justification for deploying lethal force. In those circumstances the Court should regard him as a discredited witness whose testimony should be regarded with skepticism.
ii. LJ Kelly arrived at that conclusion being unaware that: there was a listening device in the hayshed; the tapes from that listening device had been destroyed by Officer P2, because he was concerned that they would be ‘misunderstood’; some of those who listened to the tapes (retained by the military and subsequently destroyed) stated that, contrary to the evidence of Inspector M, the RUC did not shout warnings before deploying lethal force. In those circumstances the Court should be even more ready to conclude that Inspector M lied about the events in the hayshed in 1982 and cannot be relied upon as a witness in this inquest.
iii. Inspector M’s explanation for why he lied in 1982 about seeing an armed man acting suspiciously outside the hayshed should be rejected. The Court should conclude, insofar as necessary, that the lie was told to lend support to the justification used for deploying lethal force, and to prevent CID and the DPP from knowledge of the existence of a listening device in the hayshed because knowledge of the existence of the listening device would have led to knowledge about the destruction of the tapes.
iv. Inspector M’s account of his failure to alert CID investigators to the account given by Constable Brannigan to him about the circumstances in which he fired at Gervaise McKerr’s car should be rejected. In particular, his attempt to suggest that the Stalker Sampson team had misunderstood what he had said should be rejected but further should be regarded as symptomatic of this officers’ willingness to dissemble when he found himself in difficulties.
v. The Court should conclude that Inspector M was again dissembling when he sought to suggest that the record of the interview conducted by the Stalker Sampson team, which recorded him as stating that, HMSU officers’ did not record evidence in their notebooks because “evidence changes that much” should be read as “intelligence changes that much”. His evidence to this inquest is inconsistent with the contemporaneous note, entirely implausible and illustrative of the witness’ willingness to lie on any occasion where he found himself in difficulty.
vi. Inspector M also sought to diminish his role in signing off on Constable Brannigan’s overtime claim. However, Constable Brannigan’s claim was designed to facilitate the VCP cover-story in Mullacreevie Park, a lie, which persisted long after officers, M included, had been advised that were free to provide CID investigators with the full truth about their role in the three incidents. Inspector M failed to take that opportunity and in failing to do so facilitated, with others, the continuation of that cover story until the DPP, independently of HMSU officers, established the truth.
vii. Equally Inspector M lied when he stated that he had co-operated with the Police Ombudsman’s investigation into the death of Neil McConville, rather he had behaved in a manner obstructive to the investigation, which included making unfounded allegations about the investigators.
248. As outlined above, Inspector M comes to this witness in circumstances where LJ Kelly had “considerable doubt” about his evidence and consequently decided that he could not rely upon his testimony in the prosecution of Martin McCauley. The Court is entitled to have regard to that conclusion and further to have regard to the context in which it occurred, Inspector M’s account about the circumstances in which he deployed lethal force, and an account going centrally to his justification for deploying lethal force. The Court is referred to the judgment of LJ Kelly which is found in File 13, Tab B, pp. 4101 – 4114 wherein he states as follows:
“All three maintain at this trial, that save for this single untruth and its embellishment, the remainder of their initial statements of the 25 November 1982 is a completely true account of what happened after they arrived at the hay shed as is their evidence before me.
I have, however in the light of the forensic evidence some of the medical evidence and otherwise doubts as to whether this is so. My two principal areas of reservation about their evidence are in respect of first where they fired their shots from into the barn and second as to whether they did see the accused and Tighe holding and pointing rifles.
. . . (reviews forensic and pathology evidence)
But on the whole I am left in doubt as to whether P24 (Inspector M) fired from the places he said he did and in a greater degree of doubt as to the accuracy of P32 and P33 recall as to where they fired from.
Then there is their assertion that both Tighe and the accused each held and pointed a rifle in their direction. I have considerable doubt about this. These rifles were without ammunition. It is possible that the accused and Tighe might have held and pointed unloaded rifles at the door to intimidate or frighten off an intruder or passer-by set to disturb them. But what if the intruder was the police who had announced his presence and ordered them out? Perhaps in those circumstances they might point the unloaded rifles if they thought they were armed only with revolvers and that the threat of apparent superior fire-power of rifles might cause them to retreat. But these slender possibilities seem to me to lose all substance and can hardly be apposite to a time after gunfire had been directed into the shed. The police witnesses maintain that the accused and Tighe each reappeared, each holding and pointing a rifle a second time after they had fired into the hay shed To reappear and in exposed places with their unloaded rifles after bursts of gunfire is something I find difficult to accept. In particular, the evidence of Mr Graham FRCS casts considerable doubt as to the accuracy of the police evidence as to the position of the accused when he was shot and the evidence of Dr Press some doubt, though less, on the position of Michael Tighe when shot.
Having regard to my reservations about the weight of the evidence of three police witnesses I believe the proper course for me at this trial, is to exclude their evidence and its implications from my consideration and adjudication of the case. This is not to mean that I disbelieve their evidence completely or have reservations about its entirety.”
249. Of course LJ Kelly arrived at this critical conclusion without knowledge of the existence of the listening device in the hayshed. It is submitted that, had LJ Kelly been aware of the decision by senior police officers to destroy the tapes of what had been picked up by the listening device when the shooting occurred, his scepticism about the evidence of Inspector M would only have increased.
250. The tapes from the events of 24 November 1982, were numbered 041 and 042. These tapes accompanied by relevant log sheets were provided to P62 who in turn provided them to Chief Inspector P2 at TCG, Gough Barracks. (Sampson Report, Ballynerry Road, pp. 20 – 21, paras 2.41-2.43)
251. According to Officer “A”, an officer in the security services, (who was clear that having listened to the tapes no warning shouts were fired, ibid. p. 24, para 2.56) P2 told him that “he had destroyed or arranged for the destruction of the tape recording covering the shooting incident explaining that “parts of the contents of the tape might be misunderstood”. It is submitted that had the tapes exonerated the officers, including Inspector M, they would not have been destroyed.
252. An unauthorised copy of the tape was made by the military and retained for a period before ultimately being destroyed by the military. Neither Mr Stalker nor Mr Sampson ever heard the tape. They did however interview the people present at the listening post at the time of the shooting and also those Security Service personnel who listened to the unauthorised tape subsequently. Thus soldiers M8, M9, M10 and M11 were all present at the listening post. M8 was adamant that “no verbal warnings were given” (ibid. p. 16, para 2.26) while M10 maintained a warning was shouted (ibid. p. 18, para 2.32) M9 and M11 and M7 (who listened to the tape subsequently) are silent on the issue. Five Security Service personnel gave accounts of hearing the tapes, of those, four of the Officers given the ciphers, A, B, C and E (ibid. p. 24, para 2.56, p. 25, para 2.67, p. 27-28, paras 2.72-2.73, ibid. p. 30, para 2.81) maintained that warning shouts were not given. Officer D’s recollection was said to be sketchy. Again the preponderance of the evidence serves to undermine Inspector M’s contention that warning shouts had been shouted prior to the shooting of Michael Tighe and Martin McCauley and serves to demonstrate that he is a witness who is prepared to lie in a court of law.
253. Inspector M, before this inquest, in 2012 and again in 2016 persistently stated that the story given to CID about how HMSU came to be at the hayshed, the lie that a gunman had been seen acting suspiciously outside the hayshed, was told in order to “protect the life of a source”. It is submitted that the evidence supports the view that the lie did not protect the “life of a source” but rather sought to protect the existence of a listening device in the shed, a listening device which P2 took the view needed to be destroyed in order that it not be “misunderstood”.
254. It is submitted that, in circumstances where officers were having communicated to them what was occurring in the hayshed and knew that a gunman had not in fact been seen outside the hayshed, officers were aware that the lie was not necessary to protect the life of a source. The appropriate inference to be drawn is that the lie was told to lend support to the justification used for deploying lethal force and to prevent CID and the DPP from knowledge of the existence of a listening device in the hayshed which had recorded the events in the hayshed and which had been destroyed by P2 to as he considered that the contents could be ‘misunderstood’.
255. Inspector M also played a role in Tullygally in that he was the Sergeant in overall responsibility for the three SSU crews deployed that evening and upon their return and after Sergeant Montgomery and Constables Brannigan and Robinson had shot and killed Gervaise McKerr, Eugene Toman and Sean Burns:
“14.118 . . .
Sergeant P24 (Inspector M), took them . . . into an office for the purpose of establishing what had occurred. . . .
. . .
14.122 Constables Brannigan (B) and Robinson (C) confirmed to P24 (Inspector M) that they too had heard the same sounds coming from the car and that each of them had placed a similar interpretation on them as that which had been expressed by Montgomery (A). Robinson (C) said that as a consequence he again fired at the Escort. Brannigan (B), contrary to what he was eventually to say, also admitted shooting at the car at the crash scene.” (Stalker Report, Tullygally Road, pp. 94 – 95)
256. Subsequently in his report Mr Stalker noted that:
“14.197 Despite the important evidence that P24 and to some extent his two immediate colleagues, P25 and P26, could have provided, these officers also had never been interviewed previously nor had they been required to make statements on the subject.” (Stalker Report, Tullygally Road, p. 114)
257. Thereafter Mr Stalker notes:
“15.4 . . . It is firmly believed and indeed P9 (D) admitted as much to Sergeant P24 (M) that his criterion for opening fire on the escort in the first instance was simply to stop it; this following McKerr’s failure to respond to what could only have amounted to a half hearted signal of sorts requiring him to stop the car.
. . .
15.6 What can be completely discredited is Brannigan’s (B) denial that he fired his weapon at the crash scene. The evidence of Doctor Renshaw conclusively shows that this officer is lying on this aspect and that he did indeed kill Toman after the car had crashed and when the deceased had been attempting to alight from the Escort.
15.7 Montgomery (A) and Robinson (C) corroborated Brannigan (B) in this deceit by denying that he had fired at the crash scene. It is significant that the first documented account given by Brannigan (B) to Sergeant P24 (Inspector M) is that he did in fact shoot at the car after it had crashed.
15.8 It is very difficult indeed, bearing in mind the entire circumstances of this incident, to understand why it became so necessary to exclude Brannigan (B) from that part of the shooting. One is compellingly directed to speculate that there could only e one reason for such a falsehood and that is that Toman’s death occurred in sinister circumstances.” (Stalker Report, Tullygally Road, pp. 123 – 124)
258. Mr Sampson in his report describes it as follows:
“3.5 The Crown’s case against Montgomery, Bannigan and Robinson was based solely on that part of the shooting which had occurred at the crash scene and it was substantially reliant upon the evidence of the pathologist and the forensic scientist.
3.6 On the basis of the evidence proferred by these two witnesses the Crown asserted that Toman had been alive following the crash and having just alighted the vehicle was shot dead by one of six bullets fired from right angles to the driver’s door. The fatal bullet having been discharged from Brannigan’s rifle. The Crown further asserted that this shooting had occurred at a time when no resistance was either offered or threatened.
3.7 Brannigan, supported by Montgomery and Robinson, had always denied during the course of his interview and statement made to the CID investigators that he had fired at the crash scene. In the absence of evidence to the contrary and following a defence submission the three officers were acquitted of the charge of murder.
3.8 Sergeant P24 was, at the time of the operation in charge of Special Support Unit officers on the ground and shortly after the shooting incident had occurred he spoke to Brannigan. That officer told P24 that he had fired at the crash scene. Had P24 been interviewed during the course of either the initial CID investigation or during Mr McAtamney’s inquiry this crucial evidence may well have been available and necessarily would have undermined the cautioned statements of each of the three officers subsequently charged with the murder of Toman.
3.9 Additionally P24 was allegedly told by P9 the reason for that officer initially opening fire at the vehicle check point. P9 in his early caution statements maintained that his reason for opening fire was in self defence, believing that the rear seat passenger was about to shoot him. P24 says that he spoke to P9 soon after the incident and was told by him that he P9 had opened fire in an effort to stop the suspect car and his shots had been aimed at the rear tyre in order to deflate it.
3.10 P24 was not seeking to conceal his participation in the incident or the evidence he could offer. Indeed the Sergeant says that prior to this inquiry he was never asked about his involvement. Clearly had he been spoken to and this information, in particular, elicited from him at an early stage then it may well have had a profound effect on the course of the trial.”
259. Thus Inspector M had significant information relevant to the circumstances of the death of Mr Toman, in respect of whom Constable Brannigan was charged with murder and gave at his trial, a dishonest account of not firing at the crash scene, in circumstances where he had told Inspector M that he had fired at the crash scene.
260. While Inspector M did not make a false statement about this matter it is also clear that, as someone who had taken the very first accounts from those involved in a lethal force incident, he did not, despite being a serving police officer regard it as incumbent open him to provide this information to CID. His testimony on this issue was, it is submitted entirely lacking credibility, it is a further example of HMSU officers staying silent in circumstances where lies were overtly being told by other officers.
261. In 2012 counsel for the next of kin were handicapped in pursuing the issue because they were unable to refer to the Stalker report. The matters was addressed on 4 October 2012, File 1, Tab 4, p. 284 line 18 – p. 288 line 14 and 5 October 2012, p. 291, line 10 – p. 295 line 24. In 2012 Inspector M maintained that a statement made by him to the Greater Manchester Police was being misinterpreted and that he had not in fact told the Stalker team that Constable Brannigan had fired shots when the vehicle was stationery. The statement (File 13, Tab B, p. 3942) states as follows:
“All three, that is Montgomery, Robinson and Brannigan said that they got out of their Cortina and took up cover around the Escort. Sergeant Montgomery said a sound came from the Escort which resembled the cocking of a weapon and he had further fired on the car. Constables Brannigan and Robinson confirmed that they had heard the same sound and had both placed a similar interpretation on it and each had directed at the vehicle.”
262. Dealing with this issue in 2012 Inspector M stated as follows:
“Q. The point is that he was making the case during interview and at trial, that he hadn’t actually fired any shots at the crash scene at a time when you knew perfectly well that he had fired at the crash scene, isn’t that right?
A. That’s incorrect, Sir.
Q. Did he not tell you himself that he had fired at the crash scene?
A. Sir, there was a debrief and I believe I made a statement subsequent to that in 2000, or in 1984 to the Stalker ream.
Q. Yes.
A. And in that there is one sentence and the word “each” appears in it. But “each” and this can be confirmed or denied through forensics, I believed each at that stage was a Constable and a Sergeant, but it was not Mr Brannigan. Constable Brannigan.
Q. So you’re
A. But the way it’s worded, sorry, the way it’s word it would appear that it meant Constable Brannigan and the other constables.”
(5 October 2012, File 1, Tab 4, p. 294 lines 1-20)
263. He essentially repeated this in 2016, contending that Constable Brannigan had never told him that he’d fired at the crash scene, rather there was a discrepancy in the wording and he had intended in the statement referred to above to refer to “Sergeant Montgomery and Constable Robinson and not Brannigan.” (23 February 2016, File 1, Tab 4, p. 417 lines 14 – 15) The entire exchange is contained from p. 415 line 28 – p. 421 line 9.
264. In 1983 when Constable Brannigan was being prosecuted Inspector M could not but have appreciated that he had relevant evidence to give, even if he had not entirely appreciated the full significance of it. He had taken the first account from the three shooters now charged with murder and there was an onus upon him to ensure that this account was available to the DPP.
265. It is submitted that in 2012 and 2016 he lied to this inquest when he sought to explain away his statement to Mr Stalker’s team. The statement reads clearly and unambiguously as an account of Mr Brannigan shooting at the crash site and Inspector M would undoubtedly have corrected it, if it created a false impression. The exchange illustrates the willingness of Inspector M to lie in order to secure the exoneration of his fellow officers.
266. Inspector M’s evidence demonstrated a consistent pattern of seeking to amend the past and attribute error or fault to others (particularly investigators) when the evidence cast him in a bad light. When Inspector M was questioned by Mr Thorburn of the Stalker Sampson team in 1985 about the failure to keep proper records in his notebook, the following exchange occurred:
“Thorburn: What details do you keep in your notebook?
Officer M: The date, starting time, call sign, times started and finished.
Thorburn: What about evidence?
Officer M: I just put ‘see original statement,’
Thorburn: Why?
Officer M: Evidence changes that much.
Thorburn: Evidence never changes, evidence is what’s happened, the truth!
Officer M: It’s safer in the original statement.
Thorburn: Never mind that, what do you mean ‘evidence changes.’ Truth can’t change, evidence can’t change.
Officer M: There was the cover story.
Thorburn: Why was it required here? Have you been asked to change evidence since you’ve been in ‘E’ Department?
Officer M: No.
Thorburn: If you were asked to change evidence, how would you change your notebook?
Officer M: How?
Thorburn: Yes, how?
Officer M: You can’t.
Thorburn: What would you do?
Officer M: I don’t know, just the brief details of the incident I’m involved in are kept in the notebook.
Thorburn: Let’s make one thing plain. Your record you alone make you stand or fall on your notebook. It is an aide to your memory. Can you give me an instance where you have had to alter any record you’ve made. Any instance?”
(Interview 19 February 1985, File 13, Tab B, pp. 3949 – 3950)
267. The above exchange continues further and should be read in full. On this issue Inspector M’s evidence can be found on 4 October 2012, File 1, Tab 4, p. 270 line 8 – p. 273 line 22 and p. 274 line 12 – p. 276 line 1. Inspector M advances an ‘explanation’ to the effect that when the word ‘evidence’ was used by Mr Thorburn he had misunderstood and was referring in fact to ‘intelligence’. It is submitted that a fair reading of Mr Thorburn’s interview simply does not bear that construction. It is apparent from the exclamation mark in response to Inspector M’s answer that “evidence changes that much’ that Mr Thorburn was appalled at the response and the tone of the questioning reflects that. The notion that there was a misunderstanding that was never corrected over the course of the exchange, is both implausible and it is submitted, untruthful. The transcript of proceedings on 4 October 2012 wherein Counsel highlights the repetition of the term ‘evidence’ by both participants in the interview throughout the exchange, illustrates this unequivocally. (See, in particular, 4 October 2012, File 1, Tab 4, p. 273 line 1 – p. 274 line 22)
268. Inspector M also sought to downplay his role in facilitating the lie that Constable Brannigan had been on duty during the Mullacreevie Park incident. Specifically he signed off on Constable Brannigan’s claim for overtime. The evidence on this issue can be found on 5 October 2012, File 1, Tab 4, p. 297 line 14 – p. 302 line 9. The significance of this incident is of course, as we now know, Constable Brannigan persisted in lying about his participation in Mullacreevie Park until a relatively short time prior to the trial of Constable Robinson for the murder of Seamus Grew. Inspector M must, as a member of this small close-knit unit, have known that officers were still maintaining the lie about the vehicle checkpoint, necessitating Constable Brannigan’s continuing lie that he had been on duty on the night when Roddy Carroll and Seamus Grew were shot. Despite this, knowing that all officers had been released from their ‘obligations’ under the Official Secrets Act, he never advised CID, who were re-investigating all three incidents, that Constable Brannigan had not, in fact been on duty and that he had signed off on a false claim for over-time in order to lend legitimacy to that lie.
269. Inspector M gave evidence in 2012 that he had always, since 1982 cooperated fully and honestly with investigations into police conduct. However, in 2003, the Police Ombudsman, who had conducted an investigation into the fatal shooting of Neil McConville by PSNI officers, made the following observations about Inspector M (known as NN in the Police Ombudsman’s report)
“Three officers did not co-operate fully with the investigation, although they were initially being treated as witnesses not suspects. Two, Inspector NN and Sergeant EE, refused to be interviewed, gave written answers to questions asked by the investigators, and then alleged that their written answers had been tampered with. When they were challenged they withdrew these allegations.” Police Ombudsman’s Report, Executive Summary (File 12, Tab C, p. 3725 paragraph 17)
270. The report addressed this issue in some detail at Chapter 12, in which it is noted at 12.5 (ibid. p. 3780) that because of the contradictions between the accounts of Officer BB (Officer AA in the Pearse Jordan Inquest) and Officer NN, PONI wished to interview those officers. Thereafter it appears Inspector NN refused to be interviewed but agreed to respond to written questions. That this was unsatisfactory is noted at 12.6. (ibid. p. 3781)
271. Thereafter it was observed at 12.10 (ibid. p. 3782) that Inspector NN was interviewed under caution in August 2005 and refused to answer the majority of questions, relying upon written answers he had provided in response to questions provided in advance by the Police Ombudsman, and stating: “I have nothing further to say than I’ve made in my statement dated the 21st May 2003 and my subsequent answers which I forwarded on the 28th February 2005” and thereafter confirming that this applies to the remainder of the interview. (File 12, Tab B, p. 3706)
272. It is submitted that, consistent with the conclusion of the Police Ombudsman, Inspector M was dishonest when he asserted that he had co-operated with the Police Ombudsman’s investigation.
273. In the course of that investigation, as noted in the report, Inspector M also complained that someone in the Ombudsman’s office had altered his statement and followed that up with a solicitor’s letter which he subsequently had to withdraw having identified that he himself had made the changes in the statement. (23 February 2016, File 1, Tab 4, p. 438 line 16 – p. 440 line 26.)
274. A feature of the interview is that M essentially refused to answer questions which related to other police officers, including Officer AA, (referred to as Superintendent 2018 in the interview) and it is further submitted that his conduct in the course of that investigation is illustrative of a culture of frustrating investigations into misconduct by other Special Branch officers which was apparent in 1982, 2003 and also over the course of this inquest.
275. It is noteworthy that the Police Ombudsman was sufficiently concerned about Inspector M’s approach (along with other members of HMSU) that she noted that: “Inspector NN (and 2 other officers) resisted the investigation in respect of their roles in the Control Room to the point of near obstruction.” Observing that their “behaviour was particularly stark in comparison with those who were involved on the ground who co-operated fully.” As a result of Inspector M’s non-co-operation it was recommended that:
“the Chief Constable considers the suitability of their current postings given the findings of this investigation and transfers them to a less contentious area of policing. It is further recommended that they be advised with regard to their obligations under the Code of Ethics.” (Police Ombudsman’s Report, File 12, Tab C, p. 3811, paras 17.7 – 17.8)
276. Finally, in the course of his evidence to this inquest Inspector M illustrated quite clearly his capacity to lie. As outlined above, it is submitted that Inspector M’s coining of the phrase “response log” in 2016 (a phrase which appears in no document and was never used by any officer in 2012) is a clear example of Inspector M’s willingness to lie in Court in order to explain away difficult evidence, in that instance the absence of the log prior to 5.03pm. Equally, his response to the question of whether HMSU officers had been advised of the presence, in the red Ford Orion of [name removed] a “known IRA activist”, just an hour and a half before Pearse Jordan, then the driver of the same car, was shot and killed as he ran away from police. His responses, in particular to questions from the Coroner’s counsel, and thereafter the Coroner, were telling:
“Q. And is your evidence that you did not receive the name of that person in the course of the surveillance operation on 25th November 1992?
A. That’s correct, my Lord. I received no name of any person on that date.
Q. If there was intelligence linking that person to a car that was subject to the operation, would you have expected to be given the name of that person?
A. Not necessarily no, my Lord. The oversight of the intelligence remained with the tasking agency and it’s their decision what’s passed.
Q. But would you not accept that that is the kind of information that should be passed to you, given your responsibility for the actions of officers on the ground?
A. Yes, my Lord”
(Questions from Coroner’s counsel, 10 March 2016, File 1, Tab 4, p. 459 line 17 – p. 460 line 3)
277. However, having indicated that this was not information which would necessarily be passed to officers on the ground when questioned about this by the Coroner the following exchange occurred:
“Coroner: Yes. So, information comes in, it comes in to the TCG. They are going to ask the Orion to be stopped that this man is seen with at the Whiterock Leisure Centre, it would be grossly negligent if the people in the TCG did not inform you of the identity of the driver because there is a prospect in trying to stop him that he might open fire on them; isn’t that right?
Witness: That’s correct, yes, my Lord.
Coroner: So for them not to have informed you would be a dereliction of their duty?
Witness: I wouldn’t have put it as strong but, yes, it wasn’t, it wouldn’t have been good practice, my Lord.
Coroner: They are putting your men in danger?
Witness: That’s correct. We’re better knowing who we are facing yes, my Lord.
Coroner: And you’re, to put it on your version of events, you, having this information disclosed to you know, must be absolutely astounded that that wasn’t provided on the day in question?
Witness: I am yes, my Lord.”
(10 March 2016, File 1, Tab 4, p. 456 line 21 – p. 457 line 11)
278. Not only, are his answers contradictory inasmuch as his initial responses were to the effect that he would not necessarily have expected to have this information communicated to him but, the Coroner will have seen the witnesses demeanour when testifying about this issue and his acceptance of being “astounded” was, it is submitted, demonstrably untrue.
279. It is submitted that as with Officer V, Inspector M is a witness who cannot be regarded as credible or honest, but rather should be regarded as a witness who is prepared to lie, and in particular is prepared to lie in order to protect himself and other Special Branch officers.
280. Inspector M and Officer V were central to the organisation and conduct of the debriefing of HMSU officers after this shooting incident. Both have shown themselves to be dishonest witnesses, in 1982 and again in 2012/2016. The evidence about what occurred in 1982 demonstrates the extent to which HMSU as a unit were prepared to lie to secure the exoneration of colleagues facing accusations of murder. Significantly, those lies commenced with the debriefs that followed the shooting incidents and HMSU officers, to a man, persisted with the lies until exposed.
281. For the reasons outlined above, even disregarding the events of 1982, a debriefing of a suspect along with eye-witnesses should never have occurred. Given that the starting point for creating cover-stories designed to assist in the exculpation of officers in 1982 was the debrief and given the extent to which Officers V, M and A were prepared to lie in 1982 (and in the case of V and M in 2012/16 about what occurred in 1982) the appropriate inference to draw from the decision to conduct a debrief was that it was designed to insulate Sergeant A’s conduct from effective scrutiny. The debrief enabled Sergeant A to give his version of events to his fellow officers ensuring that their accounts corroborated, or at the very least did not undermine, his account and also facilitated the withholding of information from investigators which might undermine Sergeant A, in this case the identification of [name removed], a “known PIRA activist” in connection with the red Ford Orion earlier in the day. The withholding of the earlier portion of the HMSU log was an element in this cover-up.
282. The Court is invited to conclude that the debrief ought not have occurred and that it was conducted with the objective of seeking to exonerate Sergeant A.
III. PLANNING AND CONTROL
a) whether there was a clear line of command within the operations room;
b) whether the TCG exercised any or any adequate control and supervision over the conduct of officers on the ground
c) whether TCG officers or Inspector M gave any advice, guidance or directions to the police officers on the ground in relation to stopping the car and the importance or otherwise of stopping the driver
d) whether the decision to stop the vehicle by way of a casual stop, as opposed to a vehicle check point, and the absence of any clear direction as to what should happen in the event that the driver ran away caused or contributed to the death of Pearse Jordan; an
e) whether, therefore, the planning and control of the police operation was such as to minimise recourse to lethal force.
Planning & Control Introduction
283. In terms of the overall command structure, broadly speaking the evidence was that Officers in the Tasking and Co-ordinating Group (“TCG”) who comprised Superintendent AB and Inspector AA received information from various sources, including military intelligence, police intelligence and surveillance agencies and were responsible for devising the overall strategy for the operation and determining whether steps, such as, stopping a vehicle would be undertaken. HMSU were uniformed Special Branch officers who acted in a support role in the conduct of surveillance operations and would be the unit to act upon intelligence received, whether in conducting searches or arrests, on direction from TCG. A HMSU liaison officer would be stationed in the operations room with TCG and would provide his officers with relevant intelligence received through TCG, who would communicate instructions from TCG to the officers on the ground.
284. The issues identified above, and addressed below, were identified before it was known to the next of kin that [name removed], a known PIRA activist had been seen in the Ford Orion, at the Whiterock Leisure Centre, at 3.40pm. The evidence of AA, addressed above, is to the effect that this is information that would have been communicated to the HMSU liaison officer, Inspector M, and thereafter the men on the ground. Officer V agreed in principle. That the name was communicated, has been disputed by the HMSU officers. For the reasons outlined above, it is submitted that Officer AA’s evidence on this issue is to be preferred. The issue is addressed further below in relation to: the question of whether the TCG exercised any or any adequate control and supervision over the conduct of officers on the ground; and, the question of whether TCG officers or Inspector M gave any advice, guidance or directions to the police officers on the ground in relation to stopping the car and the importance or otherwise of stopping the driver.
Whether there was a clear line of command within the operations room
285. The evidence on this issue comes from primarily from Officers AB and AA, and to a lesser extent Inspector M.
286. Neither Officer AB nor Officer AA, the witnesses from TCG, were prepared to accept primary responsibility for decision-making within the operations room, although Officer AB does accept responsibility for the decision to stop the red Ford Orion and for identifying the methodology of the stop. Whilst Officer AA in 1995 had given unequivocal evidence to the effect that he was in charge of the operation in 1995. (6 January 1995, File 9, Tab 29, p. 2753) He appeared unwilling to accept that role in 2012. When asked whether “there was actually anyone who was designated as the person in charge of the police operation that day” he identified the Superintendent. (26 September 2012, File 9, Tab 29, p. 2791 lines 14 – 16) Earlier on having stated: “it’s like double, both of us were technically in charge. But at the end of the day he (AB) was the Superintendent”. (26 September 2012, File 9, Tab 29, p. 2789 lines 14 – 16) He went on to describe it as “a fluid situation” and accepted the proposition that “responsibility changed during the course of the day depending who was in the room and who was out of the room?” (26 September 2012, File 9, Tab 29, p. 2796 lines 11 – 20)
287. Officer AB’s evidence was to the effect that: “the Detective Inspector (AA) would have been the person in charge of the operation in the actual command room, the operations room. And if there was an ongoing operation there he would be in there permanently . . . he would be in charge of the actual operation”. (3 October 2012, File 1, Tab 1, p. 23 lines 16 – 27) Explaining thereafter that: “I would obviously be in charge of every operation but I would delegate my authority to the Inspector”. (3 October 2012, File 1, Tab 1, p. 24 lines 5 – 10)
288. Inspector M considered that TCG were in charge in the operation room, although not differentiating between Officer AA and AB. He described the division of responsibility as between TCG and HMSU in the following terms: “TCG had the overview of the intelligence and set the strategy and I coordinated the officers and settled the tactics.” (23 February 2016, File 1, Tab 4, p. 344 lines 13 – 18)
289. On the question of who was responsible for the tactic of stopping the vehicle from behind, using the defective light as justification for putting a stop on the Orion. Officer AB confirmed, on more than one occasion, that he had made the decision as to the stop and the methodology. (3 October 2012, File 1, Tab 1, p. 46 lines 18 – 30) Inspector M’s evidence was to the same effect confirming that the method to be used in stopping the vehicle “was highlighted to me by ‘AB’”, identifying it as a strategic, as opposed to a tactical decision. (4 October 2012, File 1, Tab 4, p. 209 lines 21 – 30) Inspector M was also clear that he would not have been aware of TCG’s rationale in deciding to stop the car and it was not something which would have been discussed with him by TCG. (4 October 2012, File 1, Tab 4, p. 201 lines 11 – 23, see also 23 February 2016, File 1, Tab 4, p. 386 line 27 – p. 389 line 29)
290. Officer AA gave evidence that the HMSU officer was there to provide “tactical advice on what’s feasible” and later contended that “I would imagine we (AA and AB) discussed all the comings and goings, the circumstances, and then he would have spoken to the HMSU commander in the Ops room.” This account is not corroborated by Officer AB and is contradicted by Inspector M. On occasion, Officer AA in his evidence in 2016 appeared to imply that TCG simply made the decision to stop the car with the methodology of the stop being a matter for HMSU, (see for example, 7 March 2016, File 9, Tab 29, p. 2947 lines 6 – 13) however the preponderance of evidence on this issue is that Officer AB made the decision that the car should be stopped and that he also determined the ‘tactic’ of stopping the car from behind, by directing that the car should be pulled over on the basis of a defective light.
291. Thus, although the management of the operation was presented in evidence by the officers as TCG having strategic control with HMSU having control over tactics, it appears, as far as this operation is concerned that both the strategic and tactical decisions were being taken by TCG. Certainly, the key decision, both as a matter of strategy and tactics, was the decision to stop the vehicle, which was taken by Officer AB, who had been absent from the Operations Room for much of the day. There is no evidence that this important decision, involving the deployment of HMSU officers, involved any meaningful engagement or discussion with the HMSU liaison officer about: the viability of the tactic; the risks associated with the use of the particular tactic (including the risk that the driver might try to evade police); any risks associated with the question of whether [name removed] might be the driver of the car, or whether someone other than [name removed] might now be driving the car; or, whether alternative tactics would involve lower risks to officers on the ground and to the occupant/s of the vehicle, such as putting in place VCPs. Even if there was discussion with Inspector M, contrary to his evidence and that of Officer AB, it seems apparent that officers failed to contemplate the risk of the vehicle not stopping and what was required to manage the risks involved in that eventuality.
292. On the Officers’ evidence there was no clear division of responsibility, within the operations room, as between Officer AB and AA, with authority apparently moving between them. It seems apparent that AB did not in fact delegate authority to the Officer present throughout the day in a meaningful way, inasmuch as despite his evidence that he was in and out of the operations room during the day and had “numerous other duties during the day” he was nonetheless the person who gave the specific instruction to stop the red Ford Orion and he dictated the methodology whereby that stop would be carried out. In other words deciding, without apparent consultation, both the strategy and the tactics to be used by officers on the ground.
Whether the TCG exercised any or any adequate control and supervision over the conduct of officers on the ground
Whether TCG officers or Inspector M gave any advice, guidance or directions to the police officers on the ground in relation to stopping the car and the importance or otherwise of stopping the driver
293. These issues can be read together and it will be contended that it is abundantly clear from the evidence of both Officers AB and AA (TCG), that they did not regard it as their responsibility, nor did they as a matter of fact, exercise any adequate control or supervision of officers on the ground and when asked about the matter they appeared to consider that this was a matter for the HMSU liaison officer, Inspector M. (26 September 2012, File 9, Tab 29, p. 2833 – 2834)
294. Further, it is submitted that it is clear, that they did not regard it as their responsibility, nor did they as a matter of fact, give any advice, guidance or directions to the police officers on the ground in relation to stopping the car and the importance or otherwise of stopping the driver. Meanwhile, Inspector M, who did not regard it as his responsibility to seek to input into TCG decisions, simply communicated TCG instructions to the officers on the ground, and then effectively washed his hands of the decision, stating that, once the instruction was given “[t]he responsibility passes to the operational commander on the ground.”
295. Officer AA in response to questions on issues surrounding control and supervision, or advice and guidance, made it clear that he did not regard this as a matter in respect of which he had any responsibility and he essentially regarded this as a matter for Inspector M and the officers on the ground. He essentially relied upon their experience and training, rather than regarding himself as having any responsibility to issue directions or give advice in relation to the conduct of the operation. (26 September 2012, File 9, Tab 29, pp. 2833 – 2836 and pp. 2838 – 2840)
296. Thus, in response to the question as to whether he had exercised any kind of supervision or control of the situation as it developed he was unable to assist the Court. (26 September 2012, File 9, Tab 29, p. 2840 lines 1 – 15) Thereafter he expressly accepted that he had not exercised any supervision or control once the instruction was given to stop the car, stating in response to the question
“Q. Do you see how there was actually no real supervision or planning or control of this operation by those officers on the ground once you had given them the instruction just to go and stop the car?
A. Yeah.
Q. But you didn’t exercise any supervision or control once you have that instruction, and what you have just said yourself?
A. Because when you make the decision to have the vehicle checked out, stopped, it’s over to the officers on the ground who are best placed to see what’s happening at the time.”
(26 September 2012, File 9, Tab 29, p. 2844, lines 9 – 23)
297. Officer AB’s evidence was even more unambiguous in disclaiming any responsibility for supervision or control of the officers on the ground, or in identifying the necessity to stop the driver of the vehicle, thus in an exchange which commenced with the following question:
Q. In fact, you don’t actually give any guidance, to the officers on the ground about the importance of stopping this vehicle or the importance indeed of stopping the driver of the vehicle? (3 October 2012, File 1, Tab 1, p. 45 lines 27 – 30)
Officer AB initially stated:
Well the units on the ground had been involved during the day and were in touch with each other via the liaison officers we had in the operations room and they knew everything that was going on, they also knew why they were there searching for the PIRA munitions. (3 October 2012, File 1, Tab 1, p. 46 lines 1 – 5)
And thereafter:
A. No, I can only tell you what happened whenever I walked in late in the afternoon in the operations room, I had numerous other duties during the day.
Q. Yes, and what actually happened here was that you did just walk into the room and say stop that vehicle, check out the ID of the driver?
A. I was being briefed by AA what had happened earlier on during the day and how this vehicle had come into the frame as it were. And was now seen going away and it was suspected to having been involved in the movement of munitions.
Q. That was a possibility?
A. And I ordered them to stop the vehicle, ordinary stop and check out who the driver was.
Q. And no further guidance was given?
A. It’s up to them how they stopped it.
(3 October 2012, File 1, Tab 1, p. 46 line 18 – p. 47 line 2)
. . .
A. . . . once we ordered the vehicle stopped it is up to the uniformed police how they go about stopping it.
Q. Yes, that’s the point really, isn’t it, that they were left, that’s the officers on the ground were left to their own devices to decide what to do with whatever situation may develop?
A. They were all highly trained professional policemen who have done this many times before to have their own methodology for stopping the vehicle.”
(3 October 2012, File 1, Tab 1, p. 47 lines 18 – 26)
298. Thus Officers AA and AB disclaimed responsibility for providing guidance to the officers, considering it, either a matter for Inspector M, or for the officers on the ground. Inspector M also sought to disclaim responsibility indicating that responsibility for decision-making lay, either with TCG, in determining what tasks his officers should carry out, or with the officers on the ground who took over responsibility upon being tasked. Effectively, as he characterised his role, he was no more than a conduit, communicating instructions from TCG to which he had no input and thereafter having no input into how those instructions were given effect on the ground.
299. An aspect of this issue which now arises for consideration relates to the question of what the impact of the presence of [name removed] in the Ford Orion at 3.40pm should have had in terms of any control or supervision of the officers, or any directions to the police officers on the ground in relation to stopping the car and the importance or otherwise of stopping the driver. As outlined above, the next of kin are of the view that the Court should form the view that the officers on the ground were, at or about 3.40, informed that [name removed] had been seen acting suspiciously at the Whiterock Leisure Centre, for all of the reasons already articulated above. The evidence of Officers A and M, to the effect that they were not so advised should be rejected.
300. Clearly, it was proper that officers on the ground should be advised that a known IRA activist had been linked to a vehicle they were being instructed to stop earlier in the day, a failure to do so would have been a dereliction of duty. Equally any potential risk should not have been unduly elevated because there was a likelihood, as was in fact the case, that [name removed] was no longer in the vehicle. Given that it is suggested that the instruction to officers was to establish the identity of the driver it is not possible for the next of kin to suggest that anything more was communicated to the HMSU officers on the ground than the earlier communication that [name removed] had been in the vehicle and the case is not advanced that officers in the Operations Room sought to unduly elevate any risk posed by the occupant of the car. However, the knowledge that [name removed] had been identified as the driver earlier in the day and could therefore still be the driver imposed an added burden on the TCG Officers and Inspector M to plan and control the stop operation in such a way as to reduce and contain any risk. It will be submitted that the obvious method of ensuring that the situation was contained and recourse to lethal force minimised was to set up a vehicle checkpoint rather than simply stopping the vehicle from behind, a method which risked a car chase developing and the matter spiralling out of control, in the way that it ultimately did. This is discussed further below, in the section addressing whether those responsible for the planning and control of the operation ought to have directed HMSU officers to stop the vehicle at a VCP.
301. As a general proposition, it is the next of kin’s case that the officers in the Operations Room, whilst making decisions which had to be implemented on the ground, effectively washed their hands of any responsibility for how those decisions were to be implemented. In the first instance Inspector M, presumably regarded as having specialist training and experience of operations on the ground, with responsibility for directing the men on the ground, appears on the evidence to have been excluded from advising in relation to the key decision, and he himself took no responsibility for giving expert advice in relation to key decisions within his area of expertise. Thus the key decision made, the decision to stop the vehicle, and the methodology whereby that vehicle was stopped, was made by an Officer AB, an officer who was not consistently part of the operation but was “in and out” of the Operations Room all day, and that officer failed to consult with the officer with responsibility for securing the implementation of his decision Inspector M). Also, all of the officers based at TCG essentially took the view that once a decision was communicated, it was a matter for Sergeant A to implement it, and they regarded themselves as having no responsibility, either in terms of: advice and direction; or, control and supervision, as to how the decision was to be implemented. The key flaw in the decision, it will be submitted, was the failure of the officers to contemplate the possibility that the driver would not stop, consequently they failed both to: discuss and consider alternative methods of achieving the objective (which had not been a key priority over the course of the day) of establishing the identity of the driver; or to consider what steps should be taken in the eventuality that the driver failed to stop; and, what advice should be given to officers on the ground in the event that this eventuality was realised.
Whether the decision to stop the vehicle by way of a casual stop, as opposed to a vehicle check point, and the absence of any clear direction as to what should happen in the event that the driver ran away caused or contributed to the death of Pearse Jordan
302. It is submitted on behalf of the next of kin that a vehicle checkpoint (VCP) was an option available to police, albeit one they appear to have failed to consider, in large part because they failed to consider the possibility that the driver might seek to evade being stopped.
303. On this issue the Court is reminded of the conclusions reached by the Police Ombudsman in her investigation into the death of Neil McConville, a police shooting in 2003 which involved both Officers AA and Inspector M. In that case the Ombudsman stated:
14.11 Stopping a vehicle from behind is a high-risk tactic which should only have been used when other options had been excluded. If, as suspected, the suspects were armed, they would be highly unlikely to be compliant with a police command. As they were ordered to overtake the vehicle at speed those officers were exposed extreme danger. They would inevitably be close to, and in the firing range of, the potentially armed occupants of the vehicle. This tactic also inevitably leads to a ‘stop’ at speed, where loss of control of vehicles and collisions are highly likely. In the context of armed occupants of the target vehicle, and the necessity for police to present an armed challenge to them, this created considerable uncertainty as to the outcome. The roads were wet on the night in question which would have exacerbated the risks. There are occasions when such tactics are necessary, but only after careful consideration of other options. There is no evidence in this case that such careful consideration took place. (File 12, Tab C, p. 3794)
304. The next of kin endorse these observations and consider that the concerns identified by the Ombudsman about the strategy deployed in the Neil McConville case are relevant to this case. In particular, the failure of police to anticipate that the driver of the red Ford Orion might not be compliant with a police command in circumstances where it was believed that the vehicle was connected with the movement of munitions and might have munitions on board.
305. Inspector M was questioned about whether a vehicle checkpoint should have been an option used in relation to the red Ford Orion in 2012 and his evidence on this issue is set out below:
“Q. . . . But you had crews actually on the ground outside the station, ready and in a position to set up a vehicle checkpoint, if asked?
A. I had. Yes, I had crews outside the Police Station, sir.
Q. By opting for the stop from behind, you must have known there was always a risk that this vehicle could decline to stop and you could end up in a high speed car chase down the Falls Road, at rush hour, in the dark?
A. Sir, I honestly expected that car to pull in and stop.
Q. Yes. Well we’ve heard about you looking ahead and anticipating events. Is this not an obvious event to anticipate; that the car might not actually comply with the instructions?
A. I was . . . because of the casualness it was relayed, in how to stop this vehicle, my thoughts and my thinking were more for the searches that were going to follow in Arizona Street.
Q. Yes?
A. I could have split my crews in several different directions, but then that would have slowed my reaction time to Arizona Street.
Q. Yes, but just to get back to the pursuit option, the casual stop from behind. Are you seriously suggesting that it didn’t occur to you as one of a range of possibilities that the driver of this vehicle (believed to be a terrorist of some kind possibly) might not want to comply with instructions from the RUC?
A. Yes, that is . . . that was a possibility.
Q. And in that event you would end up with a high speed car chase, possibly down the Falls Road at 5:oo o’clock?
A. Yes, there’s a possibility of several things, yes, and that is one of them.
Q. It’s a very obvious one?
A. Because of the casualness of it, we hoped that the driver would comply.
Q. But are you saying, cause you didn’t actually make that decision, in any event?
A. The direction for the stop and the usage of the lights was given to me by the tasking agency, sir.
Q. And you didn’t query that decision, or question its wisdom?
A. Em at that, no, I did not, sir.
Q. Even thought you anticipated that this could result in a high speed car chase of some kind, down this road?
A. I did not consider that this was going to resolve into a high speed car chase. If that had been the case, then I would have put my vehicles further out, to allow for coverage of VCP’s. VCP’s cannot be set up at the drop of a hat; you need time.
Q. So if you had anticipated the possibility of the driver not complying with the instructions, you would have taken a different option.
A. I would have put the crews in different locations possibly; yes.
Q. Yes. Can you see how you could be regarded as being at fault in failing to anticipate that obvious eventuality?
A. At this point, yes, I can see that now.”
(4 October 2012, File 1, Tab 4, p. 212 line 23 – p. 214 line 18)
306. Inspector M thus accepted that a vehicle checkpoint was a viable option with the number of officers he had on the ground. Although contradicting this position in 2016, Officer AA in 2012 also appears to have accepted that a vehicle checkpoint was a tactic that they had the capacity to carry out. When being questioned on a slightly different issue, the distinction to be made between a single vehicle travelling alone and two vehicles travelling in convoy, he confirmed that had 2 vehicles emerged together then a vehicle checkpoint would have been the preferred method of stopping the vehicle. It was only if the Ford Orion was on its own that stopping the vehicle using the pretext of the defective tail light would have been used. (26 September 2012, File 9, Tab 29, p. 2820A line 18 – p. 2822 line 14)
307. It is moreover apparent that it is not the case that stopping the Ford Orion by means of a VCP (if travelling alone) was a possibility which was considered and discounted. Rather police proceeded on the assumption that the driver would stop and so never turned their minds to what would happen in the event that he did not stop, nor did they consider, given that possibility, whether an alternative method of stopping the car should be considered. This is clear from the evidence of Officer AA in 2012 when he stated:
“Q. Well, did it occur to you that, first of all, that the driver was liable not to stop, it was foreseeable that he might run away?
A. I didn’t think it was.
Q. You didn’t see that possibility?
A. I don’t remember, but I don’t see, I don’t see that could have been thought.
Q. Looking back on it, do you realize now that it was obviously a possibility that the driver would run away and that these officers, one or more of the officers might then fore an automatic weapon in that person’s direction?
A. Why would he run away?
Q. That’s not the question I’m asking you. And you can’t ask me questions. Did you note, did none of that enter your head?
A. Could you rephrase that again?
Q. Did it enter your head or occur to you that this man driving a suspicious vehicle might not want to be stopped and might, therefore, actually run away?
A. There are all sorts of possibilities can happen.
Q. Yes, but you didn’t concern yourself with any of that.
A. I was quite busy. To be perfectly honest, I was more concerned about any dangers to the greater Belfast population.
. . .
Q. Did you make any assessment whatsoever of the risks associated with just telling officers of the HMSU to go and stop a car without any more guidance or instructions about the importance of that car being stopped?
A. I can’t remember at this stage what all . . .
Q. Do you see now how that really was a recipe for disaster?
A. No.
Q. Do you see how there was actually no supervision or planning or control of this operation by those officers on the ground once you had given them the instruction just to go and stop the car?
A. Yeah.
Q. But you didn’t exercise any supervision or control once you gave that instruction, and what you have just said yourself.
A. Because when you make the decision to have the vehicle checked out, stopped, it’s over to the officers on the ground who are best placed to see what’s happening at the time. I mean, I can sit in an Ops room and ask the car to be stopped at a stage and there might be a cycle race going through it, so those officers are trained to see what’s happening.”
(26 September 2012, File 9, Tab 29, p. 2842 line 28 – p. 2844 line 2)
308. It is clear that the possibility of the car not stopping was simply not considered. It followed that as consideration was never given to the possibility of the car not stopping TCG gave no guidance, or direction to the officers on the ground and exercised no control or supervision over HMSU beyond giving them the bare instruction to stop the car using the defective tail light as an excuse.
309. In 2016 both Inspector M and Officer AA did appear to suggest that a VCP was in some way contemplated and they sought to advance reasons as to why this was not the chosen option. It is submitted that, in fact, no consideration was given to setting up a VCP, but the evidence given by them in 2016 on this issue is addressed below.
310. Inspector M at one stage sought to suggest that a reason that a VCP was not put in place was because of the lack of time and manpower. (23 February 2016, File 1, Tab 4, p. 398 lines 9 – 19) That was not an explanation advanced by Inspector M in 2012 when he essentially accepted that there had been no contemplation of the driver seeking to evade police and no discussion about the tactics which were given to him by Officer AB. Interestingly in his evidence to the Court in 2016 on this issue Inspector M, on more than one occasion, sought to justify the casual stop and the failure to anticipate the likelihood of the occupant/s trying to evade police on the basis that the car only held a single occupant. (23 February 2016, File 1, Tab 4, p. 391 lines 20 – 26, and p. 398 line 29 – p. 399 line 2) However, it was not known to anyone at the time the decision was made to stop the vehicle how many occupants would be in the car. Thus Inspector M is essentially inventing a reason that did not, and could not have, informed the decision-making at the time. It was not an explanation advanced in 2012 and it has no basis in reality, but is something which Inspector M felt would assist in justifying the decision having had the opportunity to reflect upon his evidence in the interim period. The Court should not only dismiss this explanation but view it as another example of Inspector M’s willingness to mislead the Court so as to justify his conduct and that of his colleagues.
311. Officer AA, dealing with the issue of VCPs in 2016 suggested that given the number of routes into the city, the vehicle could have avoided the road stop. When questioned by the Coroner on this issue, the following exchange occurred:
“Coroner: Well that’s what I’m looking at. Why did you choose, why did you choose the soft stop rather than the vehicle check point option?
Witness: Well, the casual stop would, if there was explosives on board, if you set up a VCP on that road, it’s quite busy, you could have the situation where the vehicle could have evaded VCP. So really by doing this stop you’re making sure you’re getting the vehicle stopped as such.
Coroner: Are you saying it would have evaded because it would have seen there was a check stop down below and then done a U-turn or something like that.
Witness: Do U-turns and take off side roads.
Coroner: Does that mean you would need another car back from the vehicle check point control to keep an eye open?
Witness: Well there would be surveillance on the vehicle, sir.
Coroner: Yes. Yes. So just so why you choose the option for the soft stop, the stop was that you thought a vehicle check point control at that particular time, in those particular circumstances was less likely to stop the vehicle or what was your answer?
Witness: I think the stops, the casual stop would look more normal. I mean if there was nothing on board that vehicle we were going to then return to Arizona Street, caution the driver for traffic violations. To be honest, if our officers set up a VCP on that road it would be quite obvious to the provisional IRA that we were operating in the area.”
(7 March 2016, File 9, Tab 29, p. 2976 line 13 – p. 2977 line 15)
312. However, firstly as the witness acknowledged, VCPs were routine in areas throughout Belfast at that time. On the issue of resources, the Court is reminded that a VCP was an option that AA considered was available to him if more than one car travelled in convoy from Arizona Street. In any event the evidence is that, at this time, there were 5 call signs in West Belfast in connection with this operation: Call Signs 8 and 12, also Call Sign 9 (comprising Officers J, K and I), Call Sign 3 (comprising Officers G, P and O) and Call Sign 11 (comprising Officers H, L and N). (Statement of Officer R, File 1, Tab 3, p. 150) As to the location of HMSU units, there were 2 police vehicles citywards of Arizona Street (Call Signs 8 and 12) and 2 vehicles available in the event the vehicle turned up the Glen Road and a further call sign at Woodbourne RUC Station. There were clearly sufficient personnel available to prevent the vehicle going: citywards down the Falls Road (the Ford Orion’s actual direction of travel), as a VCP at the junction of the Falls Road and Whiterock Road would have addressed that possibility: up the Glen Road, as a VCP countrywards of Arizona Street on the Glen Road would have dealt with that eventuality; or turning up the Falls Road (at Andersonstown RUC Station) as a VCP at the roundabout stopping traffic going up the Falls Road would have addressed that possibility. Officer AA’s suggestion that the vehicle could evade a VCP is inconsistent with the local geography as he accepted that, between Andersonstown RUC Station and the junction of the Whiterock Road and the Falls Road there were no side streets down which the Orion could have sought to evade capture and make its way to the city centre, as Falls Park and the City Cemetery are located to the left and the road to the right is a dead end. (7 March 2016, File 9, Tab 29, p. 2978 line 29 – p. 2979 line 28)
313. It is submitted that the evidence demonstrates that a vehicle checkpoint was an option available to TCG had they considered it (and in fact a method they proposed to use if 2 vehicles emerged together). However, neither the TCG officers, nor Inspector M, considered this option, because they simply failed to consider the risk that, by stopping the vehicle in the manner directed by Officer AB there was a risk that the vehicle wouldn’t stop, leading to a car chase down the Falls Road and an escalation of the incident in a manner which they could neither control nor supervise.
314. That the vehicle might not stop was a risk which ought to have been contemplated, particularly in circumstances where the officers were alive to the possibility that [name removed] could have been driving the vehicle. [Name removed] was believed to have been quartermaster of the IRA in Ballymurphy, at least a few years prior to this incident, he was also believed to have carried out both gun and bomb attacks on New Barnsley and Whiterock Security Force bases. He was thus a person who may have wished to evade arrest and this is a matter which should have been considered and assessed by police in deciding on the most effective method of establishing the identity of the occupant/s of the vehicle.
Whether, therefore, the planning and control of the police operation was such as to minimise recourse to lethal force
315. It is submitted on behalf of the next of kin that the operation was not planned and controlled so as to minimise recourse to lethal force. It should be observed that the next of kin contend that ultimately the responsibility for the death of Pearse Jordan lies with Sergeant A, whose decision to fire at Pearse Jordan as he fled from police was not justified. Whilst it is contended that there were deficiencies on the part of TCG and Inspector M in terms of their planning and control of the operation and whilst it is believed that they contributed to the situation which unfolded on the Falls Road on 25 November 1992, those flaws did not of themselves lead inevitably to the deployment of lethal force by Sergeant A. Primary responsibility for the death of Pearse Jordan lies with Sergeant A, whose recourse to lethal force was unjustified. Nonetheless it is contended that the planning and control of the operation caused or contributed, more than minimally, to the death of Pearse Jordan.
316. In particular it is submitted:
i) There was no clear line of command within the operation room. Officer AA was the TCG officer based in the operations room who had access to all of the information appears to have been in charge most of the time. However, Officer AB, who had apparently a myriad of other responsibilities and was “in and out” of the room, appears to have taken over whenever he was in the room. This in circumstances where, whatever the nature of Officer AA’s briefing of him, meant he would not have the same overview of the operation as Officer AA. Thus it would appear that Officer AA, on more than one occasion, was of the view that the Ford Orion car could be let run, but Officer AB, on taking over the operation, came to a different conclusion. It is submitted that the failure of Officer AB to properly delegate the operation to Officer AA contributed to a situation where the key decision to stop the vehicle, using the defective light as an excuse, appears to have been arrived at without proper consideration of the risks involved.
ii) It is the next of kin’s case that the tactic of stopping from behind was selected because officers based at TCG simply didn’t contemplate the risk that the driver of the vehicle might not stop. It is also the case, however, that TCG officers and Inspector M, were of the view that they had no responsibility for supervising or controlling the officers on the ground and consequently, having determined the methodology of the stop, did not take alternative steps to ensure that a high speed chase down the Falls Road did not occur. Not regarding themselves as having any responsibility for providing the officers with direction or guidance, they considered that they had no role in providing guidance to HMSU about what should happen in the event the driver sought to evade police. Their failure to consider the obvious risk that the driver might try to evade police custody appears to have been determinative of the tactic identified to officers on the ground, however, the fact that they did were of the opinion that once they gave instruction responsibility shifted to the officers on the ground may have contributed to the failure to assess the risks involved in the tactic. Had they considered that they had a responsibility for controlling and supervising officers on the ground and providing them with advice and guidance about: the importance of stopping the vehicle; the importance of establishing the driver’s identity; the importance of the driver, they may have been more inclined to engage in the exercise of evaluating the risks associated with their decisions in the first instance. It is thus submitted that their failure to take responsibility for controlling and supervising the conduct of officers on the ground contributed to their failure to evaluate the risks associated with their instructions.
iii) The failure to contemplate the possibility that the vehicle might not stop and to assess the risks of a car chase on the Falls Road with a consequent increase in risk meant that no adequate consideration was given to setting up a VCP with the aim of minimising the risk of a car chase. A VCP would have slowed matters down, even had Pearse Jordan sought to evade a VCP positioned at the junction of the Whiterock Road and Falls Road, provided a VCP was also in place at the roundabout at the Andersonstown Road RUC Station, he could not escape in the Ford Orion. Instead of the situation escalating as it did with a car chase followed by Pearse Jordan seeking to evade police by running away it is at least plausible that Pearse Jordan may not have been as panicked, as he obviously was, by a stop specifically directed at the vehicle he was driving and the situation may not have escalated as it did. It is submitted that, the failure to put in place a VCP meant that the operation was not planned and controlled so as to minimise recourse to lethal force.
IV. THE CID INVESTIGATION
317. The Senior Investigating Officer (SIO) was Det. Chief Superintendent McBurney, now deceased. His deputy was Det. Supt Kevin Sheehy, who gave evidence in 2012 but, for health reasons, was unable to do so at this inquest. The Investigating Officer’s Report can be found at File 8, Tab 26 p. 2676(1) et seq.
318. It is submitted on behalf of the next of kin that the police investigation of this incident by the police was inadequate and ineffective in a number of respects. It is noteworthy that whilst CID officers were ultimately charged with investigating this incident, the conduct of HMSU officers in the immediate aftermath of the shooting operated to compromise the CID investigation from the outset.
319. Firstly, there was a failure to preserve the scene. The police car that Pearse Jordan was said to have collided with was simply driven away, on the instructions of the officer who was supposed to be in charge of the scene, an HMSU officer Officer H. As a result, different accounts have been given of the exact location of the car and, therefore, of the exact location of the deceased when he was shot.
320. Secondly, there was no serious attempt to obtain the details of witnesses who may have observed the events under consideration. In particular, there must have been literally dozens of potential witnesses on the bus that apparently was stopped so close to the scene that passengers were looking down at the deceased as he lay on the ground. This bus was directed to drive through the scene, with all the potential that decision had for compromising a forensic examination of the scene. No attempt was made to take details of the passengers or to ask if anyone had witnessed the event. Likewise, there were a number of pedestrians and passing motorists who were moved on without details being taken. Again it was HMSU officers who controlled the scene at the initial stages when these decisions were taken.
321. Thirdly, and most importantly, a full day was allowed to pass before CID officers sought to interview Sergeant A and the other HMSU officers involved. That meant that those officers and their superiors were permitted to conduct a debrief prior to interview by CID officers in exactly the kind of circumstances condemned 10 years earlier by both Stalker and Sampson. None of the officers involved admits to knowing of the Stalker Sampson recommendations that this practice should be discontinued. That may not be any fault of theirs. It can be inferred that the Chief Constable of the day had declined to follow this recommendation. That is reprehensible in itself. However, whether or not the Stalker Sampson recommendation was generally known to the officers concerned, CID must have realised that the effect of not interviewing the officers involved in the incident promptly and ensuring their separation pending interview was that they could collude in their accounts and, indeed, receive instructions from their superior officers.
322. Given the issues identified above the Court is reminded of Mr Stalker’s criticisms of the police investigations following the Stalker Sampson shootings:
“In each of the incidents officers directly involved were removed prematurely from the scenes and ill-advisedly debriefed by Special Branch officers.
The vehicles and weapons used by these officers were also wrongly removed and not subjected to examination until some time after the incidents.
When such shooting incidents occur, there should be no debriefings of officers before interviews with the C.I.D. unless on the explicit instructions of a Chief Officer who will later accept responsibility.” (Sampson, Volume II, p. 92, Part C, Vol. 4(3))
323. Fourthly, it would appear that the investigating officers either did not seek or were not granted access to all relevant intelligence material. Specifically, there is no reference in the Investigating Officer’s Report to the intelligence report that is now Exhibit 10 in the present inquest. A cursory perusal of this intelligence material would have allowed the connection to be made with the press accounts of the “wrong man” being shot in a “botched security operation” resulting from a “radio mix-up”. These press reports do not feature in the investigation report however it is clear that the investigating officers were aware of them and took some steps to examine the matter, such as interviewing the Press Officer, Insp Dunn. Had they seen that the man named in the prior intelligence reports as the driver of the red Orion was the man initially identified as the driver who had been shot, it is reasonable to assume that more searching enquiries would have been made about this at the time, by the ICPC if not the CID. It is not apparent that this decision was necessarily the fault of the CID investigators in that it is assumed that the material in question was held by Special Branch and the question arises whether CID sought relevant intelligence material, or whether Special Branch deliberately withheld same.
324. Fifthly, the Investigating officers were prepared to accept at face value the assertion by Sergeant A that he had believed himself and other officers to be in danger. It is the next of kin’s submission that in circumstances where the deceased was shot in the back and was unarmed when shot and in circumstances where Sergeant A’s conduct had breached the RUC’s own Code of Conduct, this conclusion was not justified on the evidence. In this context it is remarkable that the RUC Code of Conduct does not feature in the Investigating Officer’s report.
V. DISCLOSURE
325. As the Court is aware, Exhibit 10 only came to light as a result of a query raised by the Coroner arising from questions asked about the misidentification of Pearse Jordan and searches carried out on foot of same. The ‘wrong man’ issue had been canvassed in the 2012 inquest in that a number of police witnesses were questioned about the newspaper reports and the military document which suggested that the deceased had been. Despite this, it appears no, or no adequate enquiries were made on foot of the issues raised.
326. The failure to make this intelligence material available to the Coroner hearing this inquest until the inquest was almost complete – and indeed to the PSNI’s own legal representatives – is a failure of major importance, not only in this inquest but more generally. The explanation offered is that they were not in any files related to the Jordan case and the search terms did not cause the documents to be identified as relevant.
327. This can only be regarded as a systemic failure of a kind that means that the PSNI’s document management and retrieval systems are not fit for purpose. These intelligence materials are manifestly of the most obvious relevance to the Jordan case. They concern the car which he was driving and the antecedents of the person who was believed to be driving it earlier (and apparently at the time of the shooting). It was the document that formed the basis of intelligence transmitted to and from TCG during the operation that led to the shooting.
328. The fact that it was not included in any file concerning the case and it could not be identified as relevant during searches gives rise to the concern that (i) other relevant documents may also not have been disclosed in this case and (ii) relevant documents in other cases have likewise remained undisclosed. These are failings that should attract judicial censure.
VI. QUESTIONS
329. At the last inquest, questions for the jury were proposed on behalf of the next of kin. These were rejected by the Coroner, H.H. Judge Sherrard. However, in the subsequent judicial review (Re Jordan’s Applications (2014) NICA 76), the Court of Appeal approved the form and terms of those questions. Morgan LCJ said, at para 62 of the judgment:
“For our own part we consider that in the context of the inquest as conducted the format and sequencing of the questions proposed by counsel for the next of kin had advantages as compared to the open ended and looser questions set out in the Coroner’s questions to the jury. The next of kin proposed 28 questions put forward as straightforward, separate and sequential questions addressed to all the issues raised by the course of the evidence adduced at the inquest. These started with what the nature and purpose of the operation on 25 November 1992 was; whether Sergeant A shouted a warning: “police, halt” or “halt police”; whether he issued any warning before firing; whether the deceased was doing anything which in fact amounted to a threat; whether the deceased was presenting his front or back to Sergeant A; whether the police officer who shot the deceased selected automatic mode deliberately or inadvertently and whether the police officer’s view was obstructed in any way. The questions then proceeded to be focused on the issue of the necessity to fire, the necessity to fire to kill rather to disable and the necessity of using a weapon on automatic. The questions then proceeded to ask whether the police officer actually believed it was necessary to defend himself or his driver, whether that belief was reasonably held and whether the use of the force used was necessary in the circumstances. The remaining questions raised were specifically and sequentially related to the planning and control of the operation. The posing to the jury of short and focussed questions specifically addressed to the issues raised in the course of the inquest might well have assisted the jury in its task of addressing in a logical sequence each of the issues raised in the course of the evidence. The questions to the jury if so formulated might have reduced the risk of the jury being unable to reach agreement on particular matters because the use of broad open-ended questions widened the scope for jurors to fail to reach a consensus on how to formulate and express the answer sought.
330. The questions are attached as Appendix 2 to this submission. It is acknowledged that as this case is being heard by a High Court Judge the questions drafted for the purposes of asking questions of a jury may not be entirely appropriate. Nonetheless and subject to that caveat, we have marked on the attachment what we consider are the answers that ought to be arrived at on the balance of probabilities in this case.
VII. CONCLUSION
331. The first problem for the Coroner in assessing the police case is to decide what exactly it is. Sergeant A has given an account of the shooting that can only be reconciled with that of the other officers present if parts of his evidence are disregarded, specifically his evidence that he did not see the deceased turn away from him after he was shot. The police case is essentially a composite of (i) Sergeant A’s evidence, supported by Officers D, E and F, to the effect that the deceased spun around quickly to face him and (ii) the evidence of Officers D, E and F that, contrary to Sergeant A’s account, the deceased continued to turn around in a clockwise direction.
332. Quite apart from the difficulty of discerning a coherent narrative from conflicting police accounts, those accounts contain a number of inherently implausible, if not bizarre, propositions. The result is that, in order for the Coroner to decide that it was “unavoidably necessary” for Sergeant A to shoot the deceased, the court would have to accept police evidence that, in a number of material respects, beggars belief. In particular, the court would have to accept the following propositions:
i. Neither the TCG officers (specifically AA and AB) nor the Army liaison officer in the Operations Room passed on to Inspector M, the senior HMSU officer in the same room, the intelligence information that [name removed] had been seen driving the Orion car that the HMSU was tasked to stop, moreover despite being co-located with the military liaison officer, who was provided with this intelligence, military surveillance having been directed to check the intelligence out, Inspector M did not even hear this intelligence material being provided to the officer sitting beside him.
ii. Alternatively despite having received this intelligence Inspector M did not tell the HMSU officers on the ground that [name removed] had been seen driving the car. Thus the Court is invited to accept that HMSU officers on the ground were unaware of [name removed] or the suggestion that he was driving the Orion and the subsequent reporting to the press that he was the deceased was just an extraordinary coincidence.
iii. Nothing was entered in the HMSU operations log before 5.03 p.m. despite there being an officer at the desk whose sole purpose was to keep the log.
iv. Pearse Jordan, having sought to escape by running away from Call Sign 8, responds to coming into contact with Call Sign 12 by turning back towards the very officers he had been running away from, rather than turning slightly in an anti-clockwise direction and crossing the road (as the civilian eye-witnesses contend).
v. The deceased was facing Sergeant A when Sergeant A fired but he managed to present his back to Sergeant A by the time the bullets hit him.
vi. Two officers watching from a distance of a few yards saw the deceased being shot in the front when he was shot in the back.
vii. The deceased turned towards Sergeant A in a clockwise direction, yet the later of the wounds sustained by the deceased was to the left of the earlier wound rather than to the right, as one would expect had the deceased been turning in a clockwise direction, particularly as the weapon used also tends to move left to right.
viii. Sergeant A fired the burst of automatic fire in the direction of Call Sign 12, when one officer was inside the car and two other officers had exited the vehicle yet none of the officers either noticed this fact, nor expressed any concern at the threat posed to their lives in the event that this was true.
ix. Sergeant A fired over the roof of the Orion, not between that roof and the roof of his own call sign, despite the location of the spent cartridges, the representation on his own plan, the distance that Pearse Jordan was from the Orion, the level at which the bullets entered his back and the trajectory of the bullets through his body.
x. Officer F did not speak to Sergeant A at the scene and did not know who fired the shots, whilst Officers A, E and F did not speak in any meaningful way about the shooting in the car on the way to Lisnasharragh.
xi. The fact that the Press (and in all probability the Army given the reference to the ‘different’ [name removed] in their reports) were given the name [name removed] as the name of the driver shot by police was simply a coincidence and had nothing to do with the fact that this person had been named in the earlier intelligence report as the driver of the red Ford Orion and in fact the reason why the driver had been named as [name removed] was that the local police (Blues) had misidentified him.
xii. None of the police involved in the operation read any of the press reports about the wrong man being shot or the operation being “botched”, nor did they hear about suggestions that the press were reporting that the operation had been botched at the time or subsequently.
333. Section 31 of The Coroners Act (Northern Ireland) 1959 requires a verdict which identifies who the deceased was and “how, when and where he came to his death.” Rule 16 of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 precludes the coroner rom expressing any opinion on questions of criminal or civil liability. The Rules have been the subject of judicial scrutiny, in this case, and Lord Bingham, giving the judgment of the Court in the House of Lords stated as follows:
“nothing in the 1959 Act or the 1963 Rules prevents a jury finding facts directly relevant to the cause of death which may point very strongly towards a conclusion that criminal liability exists or does not exist. That, as it seems to me with respect, was what the jury did in Re Bradley’s Application. The findings which were attacked (quoted in para 26 above) expressed the jury’s findings based on the evidence they heard, as did the findings which were not attacked. Their tendency, if accepted, was to exonerate the soldiers, but in my opinion the jury were not led into commenting on matters of criminal liability. They were making findings of fact and drawing inferences of fact, the traditional function of a jury. There were clearly procedural features of this inquest which, I do not doubt, justified the decision to quash the inquisition, but I do not with respect think that it was justified by breach of rule 16.” Jordan v Lord Chancellor [2007] 2 AC 226, §39 (Emphasis added)
334. In this respect the Court should note that findings of lawful or unlawful killing do not offend the equivalent provision under the English legislation, although such express findings are precluded in Northern Ireland.
335. The primary question the Coroner is required to consider is how Pearse Jordan met his death. The answer is the obvious one suggested by the objective facts. Pearse Jordan was running away from Call Sign 8 when Sergeant A exited that vehicle and shot him in the back without any justification. Pearse Jordan may have changed course slightly in order to avoid running into Call Sign 12 but he had no reason to, nor did he, turn or spin around towards Sergeant A nor did he do anything to suggest that he posed a threat to Sergeant A or any other officer.
336. It is the next of kin’s case that on arrival at the scene Sergeant A believed that the driver of the car was [name removed], a well-known PIRA activist who was suspected of involvement in previous gun and bomb attacks on the police. He had a round in the breech prior to exiting the vehicle indicating a readiness to fire and he selected, we say deliberately, automatic mode. His actions, putting a round in the breech even prior to leaving the vehicle, the speed at which he exited the vehicle, the decision to select automatic mode, all point to an intention to deploy lethal force. Sergeant A exited the vehicle rapidly and shot Pearse Jordan as soon as he was in a position to do so. It is the next of kin’s case that there was nothing accidental, inadvertent or spontaneous in his actions. He did not panic, over-react or make an error of judgment. His experience and training would have equipped him so as not to do so.
337. It is noteworthy that, despite being a highly trained firearms officer, who was indeed responsible for training others in the use of firearms, Sergeant A evidenced a complete disregard for the RUC Code of Conduct governing his conduct. Equally he evidenced disregard for those who wrote it. Sergeant A had already demonstrated his disdain for the rule of law in 1982 accepting, without demur, that he would have been prepared to tell lies to a court of law if asked to do so. His attitude to the Code of Conduct demonstrates a similar disdain for the rule of law and evidences a belief that he is above the law.
338. Sergeant A has made clear that he does not regret the killing of Pearse Jordan and he has shown no remorse for the killing of an unarmed young man. He regards the killing of Pearse Jordan as morally justified because Pearse Jordan was, as he believed [name removed] to be, a member of the IRA.
339. The killing of Pearse Jordan by Sergeant A was not simply unjustified in the sense that it was not “unavoidably necessary”, when Sergeant A fired he could not have held a belief that he was justified in doing so. These were the actions of a highly trained experienced anti-terrorist officer who, believing that the person fleeing from police was a well known IRA activist who had been involved in attacks on police, considered that without more justified deploying lethal force. The shooting of Pearse Jordan on 25 November 1992 was both unjustified and unjustifiable and the Court should so find.
Pearse Jordan Inquest
Next of Kin Closing Submissions – Appendix 1
Officer V Chronology
13 January 1983 Officer V Caution Statement re Tullygally Road
(This statement states that HMSU does not receive specialist training and was sent out to conduct VCPs. The statement leaves out detail in relation to the briefing which had specifically identified Messrs Toman & Burns as the subject-matter of a planned surveillance and arrest operation)
File 13, Tab A, pp. 3845-3846
13 January 1983 Officer V Interview Notes re Tullygally Road
(As above, the statement of the same date is compiled from this interview)
File 13, Tab A, pp. 3847-3852
17 January 1983 Officer V Witness statement re Ballynerry Road
(This is a general statement about the unit and provides no information about the shooting incident.)
File 13, Tab A, pp. 3853-3855
23 February 1983 Officer V Caution Statement re Mullacreevie Park
(This statement provides details about the briefing of the HMSU it does not include any information about Dominic McGlinchey. It does state that a member of HMSU had been injured when Mr Grew’s car had driven through a VCP prior to the shooting.) File 13, Tab A, pp. 3856-3857
23 February 1983 Officer V Interview Notes re Mullacreevie Park
(As above, the statement of the same date is compiled from this interview)
File 13, Tab A, pp. 3858-3862
25 April 1983 RUC Investigating Officer’s Report & statements forwarded to the DPP in relation to Mullacreevie Park
(By virtue of the date the forwarded statements contain the inaccuracies subsequently identified)
Stalker Report Mullacreevie Park
p. 57 (9.11)
May 1983 Meetings held between DPP, AG and RUC officers about cases. Stalker Report Mullacreevie Park
p. 59 (10.5-10.8)
20 May 1983 Officer V further statement re Mullacreevie Park
(This statement now refers to the fact that Dominic McGlinchey was referred to in the briefing.
The statement does not:
i. Make any reference to military surveillance
ii. Refer to the fact that a SB officer had crossed the border into the RoI in order to locate Mr McGlinchey
iii. Refer to the car crash between military surveillance and HMSU in which P42 had sustained injuries
iv. Correct the misinformation about the manner in which P42 sustained his injuries by advising that Mr Grew’s car had not driven through a VCP injuring P42.
v. Advise that a SB officer had driven the vehicle which gave chase to Mr Grew’s car and had been at the scene of the shooting.
vi. Advise that in order to remove any reference to the SB officers cars and personnel had to be relocated in order to recreate the scene without his being present.
vii. Advise that in order to achieve this change of personnel Const Brannigan, who had been off-duty, was told that she should pretend to have been on duty and should make a claim for overtime and expenses to lend support to that cover-story.
File 13, Tab A, pp. 3863-3864
(Referred to in transcript as M1)
20 May 1983 Officer V further statement re Tullygally Road
(This statement now does include information about the briefing and the fact that Messrs Toman & Burns had been the subject-matter of the briefing)
File 13, Tab A, pp. 3865-66
(Referred to in transcript as M2)
25 May 1983 Chief Constable provides DPP with additional statements of evidence.
This is the ‘secret’ file referred to by Officer V and included Officer V’s statement of 20 May 1983 in relation to Mullacreevie Park.
Additional statements of evidence (including Officer V’s in relation to Tullygally, were also sent) Stalker Report Mullacreevie Park p. 57 (10.8) &
Sampson Report Part I pp.7-9 (2.1 – 2.6, in particular 2.5) & p.84 (1.25)
(File 14, Tab A, pp. 4167 – 4168)
8 July 1983 Interim Direction issued from DPP inviting each officer to be individually given an opportunity to alter or add to his previous statement, it was indicated that nobody would be prosecuted for breach of the Official Secrets Act.
It was this that led to the further statements from Officer V
File 14, Tab A, pp. 4184 – 4185
20 July 1983 Officer V further statement re Tullygally Road
(This statement refers to a statement having been made for a ‘secret file’. It again confirms that the operation was to arrest Messrs Toman & Burns once the surveillance team identified them as being together. It further advises that a D/Chief Supt had advised HMSU officers that they were not at liberty to make disclosures about surveillance team involvement or SB intelligence. (probably P13)
File 13, Tab A, pp. 3867-3868
(Referred to in transcript as J1)
20 July 1983 Officer V further statement re Mullacreevie Park
(This statement refers to the 20 May statement contained in the secret file. The statement further advises that initially, prior to making their first statements to CID, officers were advised about the Official Secrets Act and that they were not permitted to disclose information as a consequence. He describes being informed about the facts of the shooting but gives no detail about the extensive debrief which occurred and which involved relocating vehicles and personnel in order to conceal: the fact that a SB officer had crossed the border; the role of military surveillance; the crash between HMSU and military surveillance etc. Thus as with the statement of 20 May 1983 above, this statement does not correct any of the misinformation given about Mullacreevie Park, and in particular does not correct the misinformation provided by Officer V among others about Mr Grew having crashed through a VCP.
File 13, Tab A, pp. 3869-3870
(Referred to in transcript as J5)
21 July 1983 Officer V further statement re Ballynerry Road
(This statement is a relatively general statement about the background to Ballynerry Road and advises that a debrief occurred afterwards. It refers to a Mr Blank (probably Anderson) having reminded the men about the Official Secrets Act and that they should not disclose matters relating to intelligence.)
File 13, Tab A, pp. 3871 -3872
(Referred to in transcript as J2)
21 July 1983
Officer V further statement re Ballynerry Road
(This statement appears to be identical to the above statement except it specifically states that he went to the scene and that at the scene Sgt P advised him that “whilst passing the barn one of the patrols saw a person acting suspiciously and carrying a rifle” and it was this which caused them to go to the barn. This of course is untrue as it is known that the HMSU went to the barn as a result of a direction by TCG following what the heard as a result of the listening device in the barn. Significantly this statement post-dates the removal of any obligation to withhold information by virtue of the Official Secrets Act. The statement to Mr Blank (understood to be P13) reminding them about the Official Secrets Act.
File 13, Tab A, pp. 3873 -3875
(Referred to in transcript as J3)
12 October 1983 Correspondence from DPP referring to a conference which has been held with senior counsel and stating that “senior counsel and I are concerned that the Director is still not in possession of the full facts in relation to the events of 12 December 1982.” Specifically they express scepticism about “whether or not such a road block existed”. The correspondence also raised queries about Constable Brannigan’s role and directed that a statement be taken from P48 (the Special Branch officer who had been in the Republic of Ireland and who had driven the car in which Mr Robinson and P31 were passengers when they shot and killed Mr Grew and Mr Carroll).
File 14, Tab A, pp. 4209 – 4211
11 January 1983 Letter from Mr McAtamney to DPP, confirming that P48 has made 2 statements and the statement included following information that had not been made available to CID or the DPP before November 1983:
i) P48 had crossed the border in pursuit of Mr McGlinchey.
ii) An HMSU vehicle and military surveillance vehicle were involved in a road traffic accident and that Constable P42 who was alleged to have been injured in the ‘Road Block’ was the front seat passenger in the police car involved in the accident. This is where he received his injuries and not at the alleged ‘Road Block’.
iii) Mr Grew’s car had driven past the road traffic accident, unbeknownst to either HMSU or military surveillance but witnessed by P48.
iv) An officer radioed in the information that Mr Grew’s car had passed the accident and was heading towards Armagh.
v) “[T]here never was a road block” and “also brings into question the role of Constable Brannigan and if he was on duty at all on 12 December 1982.”
Mr McAtamney confirms that he interviewed the seven members of the 2 car crews in relation to the alleged road block and they all “insisted that their statements [were] correct and did not wish to alter or add anything.”
File 14, Tab A, p. 4219 – 4222
11 April 1984 DPP directs a further investigation into the three shooting incidents, the shooting at Tullygally Road, at Ballynerry Road and at Mullacreevie Park and specifically an investigation into whether any person was guilty of an offence of perverting or attempting to pervert the course of justice or of conspiracy to pervert the course of justice. P8 (V) is specifically identified as one of the officers to be investigated.
File 14, Tab A, pp. 4223 – 4224
1 October 1984 Officer V interviewed by Stalker team about Tullygally Road.
He refers to having made 3 statements as outlined above. In relation to the 2nd statement (20 May 1983) he states that this statement was made “under “Secret” cover and was to be submitted separately to the DPP.” He further states that he had been advised that he “could disclose all the facts covering the events of the 11th November, 1982” and that he understood that it was for “the DPP’s eyes only and it would not be submitted in evidence in court.”
He explains that the 3rd statement (20 July 1983) was made to clear up matters raised by the CID investigator.
File 13, Tab A, pp. 3876-3882
2 October 1984 Officer V statement to Stalker team
(As above, the statement of the 2 October is compiled from the interview of the 1 October)
File 13, Tab A, pp. 3883-3887
22 October 1984 Officer V interviewed by Stalker team about Mullacreevie Park.
He refers to having made 3 statements as outlined above. In this interview he details the inaccuracies in his first statement, including inter alia: the switching of crews; the fabricated story about Mr Grew driving through the VCP and injuring P42; the non-disclosure of the crash between military surveillance and HMSU; the presence of SB officer Insp P48 at the scene of the shooting.
File 13, Tab A, pp. 3888-3895
22 October 1984 Officer V statement to Stalker team
(As above, the statement of the same date is compiled from this interview)
File 13, Tab A, pp. 3896-3898
27 November 1984 Officer V further interviewed by Stalker team about Mullacreevie Park.
Questioned about the role he played in the debrief and the suggestion from HMSU members that Officer V made a presentation on the blackboard as to what each man was to do and say & questioned about P42’s account that Officer V directed him to visit the area where the VCP had been set up and to dirty his uniform.
File 13, Tab A, pp. 3899-3900
21 January 1985 Officer V statement to Stalker team about Ballynerry Road
He describes the debrief and provides some information in relation to the cover-story of suspicious activity in the barn. File 13, Tab A, pp. 3900-3901
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