Relatives of one of two IRA men shot dead by the SAS have lost a new legal battle to have the inquest verdicts quashed.
Appeal judges rejected claims that the scope of the tribunal into the deaths of Martin McCaughey and Dessie Grew was too narrow to properly deal with suspicions of a shoot-to-kill policy.
They also dismissed arguments that the coroner’s failure to recall the platoon commander who first opened fire on the pair in Co Armagh 27 years ago rendered the process unlawful.
Lord Chief Justice Sir Declan Morgan ruled that the soldier’s absence did not mean the inquest failed to comply with human rights legislation.
Outside court the two families’ solicitor, Fearghal Shiels of Madden and Finucane, expressed disappointment at the ruling and confirmed plans to appeal to the Supreme Court in London.
McCaughey and Grew died after an SAS unit opened fire on them at farm buildings near Loughgall, County Armagh in October 1990.
Although both men were armed neither of them fired any shots, provoking claims that they could have been arrested.
But in May 2012 an inquest jury found the killings were justified.
It ruled that the soldiers had used reasonable force during the operation and that the IRA men’s own actions contributed to their deaths.
They put their own lives in danger by being in the area close to a stolen car which was expected to be used in terrorist activity, according to the findings.
McCaughey’s sister, Sally Gribben, appealed following a previous failed attempt to have inquest verdict quashed.
Her legal team contended that the tribunal did not comply with Article 2 of the European Convention on Human Rights, with two main grounds advanced:
The failure to disclose to next of kin the SAS unit members’ roles in other lethal force incidents, and the consequent inability to deploy that information at the inquest.
The failure to secure the re-attendance of Soldier A to answer questions about his suspected link to the fatal shooting of Francis Bradley by special forces near Toomebridge in February 1986.
Counsel argued that relatives of the IRA men were denied the right to participate to the extent necessary to protect their legitimate interests.
The Court of Appeal heard claims the coroner limited the scope of the inquest by confining exploration of the shoot to kill issue to soldiers who fired at McCaughey and Grew, and also discharged their weapons in another incident.
But Sir Declan, sitting with Lord Justices Gillen and Weir, said: “The next of kin did not seek to make this inquest a forum for a public enquiry in relation to the activities of the SAS in Northern Ireland during the period from 1980 to 1992 in order to prove that there was a shoot-to-kill policy.”
Material disclosed during the hearing did not provide a justifiable basis for extending the scope of the inquest, with a consequent impact on its ability to proceed, he held.
Soldier A, the troop commander, gave evidence at the inquest before leaving the jurisdiction.
Sir Declan said the coroner had been presented with a “fait accompli” where it was impossible to know whether the military witness would ever return voluntarily to the tribunal or when he would next be in the UK for a subpoena to be served on him’
“This court considers that the coroner carefully weighed the competing factors and arrived at a decision to proceed to a conclusion that cannot be criticised.”
Ruling that everything possible was done to explain the situation to the jury, Sir Declan confirmed: “The absence of A to be questioned about the Bradley incident did not render the inquest non-compliant with the requirements of Article 2 and we reject this ground of appeal.”