It didn’t take long for a judge to deliver his withering verdict on a judicial review application into the use of SAS force in an IRA ambush. The legal challenge over the killing of three Provisional IRA (PIRA) men in June 1991 was described as ‘utterly divorced from reality’ by Mr Justice McAlinden. At the High Court in Belfast, McAlinden pulled no punches:
Three PIRA terrorists drove a stolen car from Moneymore, County Londonderry, to Coagh in order to murder a soldier
‘This Court is being asked to slow the passage of time down, to analyse events in freeze-frame and to address the issue of absolute necessity in slow-motion… It is ludicrous to suggest that this court should analyse the events of the day in question in that manner.’
It is a refreshing change to read of a senior judge executing his office with brisk common sense which brooks no mealy-mouthed opposition. It’s also about time: Soldier B, an ex-special forces soldier at the centre of the case, has been through hell, despite having already been cleared of wrongdoing on a previous occasion.
Roisin Nugent sought a re-examination of the killing of her father, Tony Doris, by soldiers of the SAS at Coagh in County Tyrone in June 1991. Concluding that Nugent’s case ‘fails to get off the ground’, the judge refused the application for judicial review. He added, sharply, ‘I cannot conclude this judgment without expressing my surprise that legal aid funding was made available to mount such a challenge’.
The circumstances of that fateful day, thirty years ago, make it clear why this is a case that should never have got as far as it did.
Briefly, what happened that day in Coagh is as follows. Three PIRA terrorists drove a stolen car from Moneymore, County Londonderry, to Coagh in order to murder a part-time soldier of the Ulster Defence Regiment who was a contractor to the security forces in his civilian life. British intelligence was forewarned of the attack and a detachment of the SAS had prepared an ambush, one trooper posing as the intended victim.
When the stolen car came within range, the SAS began sustained automatic fire, immediately hitting Doris, who was driving. The car, out of control, crashed into two others parked nearby and caught fire; the three PIRA men, all shot dead, were badly burned in the blaze. In Republican mythology, these ‘Volunteers’, on ‘active service’, were ‘brutally slain’ while fighting ‘a war of liberation’.
The coroner’s verdict was more prosaic. In relation to Soldier B, one of the SAS personnel involved who fired at Tony Doris, Mr Justice McAlinden recorded that the coroner had found ‘the use of force was reasonable or proportionate in the circumstances’. Moreover, noted the judge, the coroner’s ‘reasoning is clear, comprehensive and flawless. He has not missed out on any piece of relevant evidence.’
This is good news for British heroes who served in Northern Ireland. The joint framework for dealing with the ‘legacy’ of the Troubles, agreed between the British and Irish governments and announced last month, has given rise to considerable anxiety that ex-members of the security forces will be subject to vexatious claims and malign persecution for their actions while doing their job: protecting the public, defending the realm and upholding law and order.
While former soldiers and police officers should never be given carte blanche, there has been a sustained attempt to create a ghastly and pernicious moral equivalence between those maintaining law and order, and those carrying out killings, maimings and intimidation.
Mr Justice McAlinden’s robust judgment is heartening, because it demonstrates that judges are not strait-jacketed by political agreements, compromises and considerations. It is open to them to see objective facts as any rational observer would, and to shut down egregious legal exploits accordingly.
But there is a warning for judges, too. This week’s case in Belfast proves that those who do reach judgements which are muddle-headed, topsy-turvy and founded on fundamentally mistaken priorities do so actively and of their own volition. They are not mere cogs in a machine but independent actors.
Blaming the judiciary is both wrong and simplistic. And, like any concentration on a group rather than its members, it absolves individual judges from responsibility. They are not prisoners of an inescapable machine. They make their own decisions. Mr Justice McAlinden demonstrated this week that those decisions can be clear-eyed and commonsensical. He has done us all a great service.
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