CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 janvier 2022

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She is represented before the Court by Mr   F.   Shiels of Madden & Finucane Solicitors, a law firm based in Belfast. 2.     The Government of the United Kingdom (“the Government”) are represented by their Agent, Mr J. Gaughan of the Foreign, Commonwealth &   Development Office. 3.     The Northern Ireland Human Rights Commission has been granted permission to intervene as a third party. The Government of Ireland did not seek to exercise their right to intervene (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court). The circumstances of the case 4.     The facts of the case, as submitted by the parties, may be summarised as follows. The shootings 5.     On 9 October 1990 the applicant’s brother, Martin McCaughey, and Desmond Grew were shot and killed by soldiers from a specialist unit of the British Army who were providing support to the Northern Ireland police force (then the Royal Ulster Constabulary, or “RUC”). The soldiers had been carrying out a night-time surveillance operation near a mushroom shed at a farm complex. At around midnight Mr McCaughey and Mr Grew appeared outside the shed armed with AK47 rifles and wearing gloves and balaclavas. The Irish Republican Army subsequently stated publicly that the deceased were IRA volunteers on active service at the time. 6 .     Nine soldiers were involved directly in the operation. Soldiers A, B, C and D were located in the field and all four fired at the deceased. They fired a total of seventy-two shots. Most of the shots were fired over the course of approximately ten to fifteen seconds, although there was evidence that two to three shots were fired at Mr Grew and possibly also Mr McCaughey at closer range. According to soldier D, when he opened the door of the mushroom shed he thought he heard Mr Grew gasp and saw him move, and fired a further two shots to eliminate the danger. No shots were fired by the deceased. Soldiers E and F were nearby and did not fire any shots. Soldiers G and I were providing mobile support and only arrived at the scene after the shooting. Soldier H, who was in charge of the operation, was located in the headquarters of the RUC Tasking and Coordination Group and was in radio contact with soldier A. 7.     The autopsy of Martin McCaughey described the cause of death as “laceration of the brain due to bullet wounds to the head”, noting that he had been struck by approximately ten high-velocity bullets in all. The autopsy of Desmond Grew described the cause of death as “multiple injuries due to multiple high-velocity bullet wounds of trunk and limbs”, noting that there were approximately forty-eight wounds made by bullets entering and exiting his body. 8.     These shootings were two of several which took place around the same time and which fuelled allegations that the security forces had a “shoot to kill” policy in Northern Ireland. The police investigation and decision not to prosecute (1991-1993) 9.     The RUC initially conducted an investigation into the deaths and interviewed the soldiers involved. 10.     In February 1991 the Director of Public Prosecutions (“DPP”) received the investigation file. Between April 1991 and September 1992 the DPP issued eight directions for, inter alia , further investigative steps. On 2   April 1993 the DPP issued a direction of no prosecution ( nolle prosequi ) in respect of the soldiers involved in the shooting. The decision was not notified directly to the families of the victims. 11.     On 25 July 2011 the Acting Deputy DPP provided the following reasons for the 1993 decision not to prosecute: “Having carefully considered all the evidence and information it was concluded that the Test for Prosecution was not met in respect of any soldier for any offence relating to the deaths of Desmond Grew and Martin McCaughey. All soldiers had raised the defence of self-defence in opening fire. As you will be aware, where the defence of self ‑ defence is raised the burden of negativing the defence rests on the prosecution and it is for the prosecution to prove to the very high standard required in a criminal trial that the person was not acting in self-defence. It was concluded that the available evidence was not sufficient to do so.” The commencement of the inquest proceedings and the first judgment of this Court 12 .     Steps to hold an inquest began in 1994 and the inquest opened on 12   March 2012. The events which occurred between 1994 and the commencement of the inquest are set out in detail in McCaughey and Others v. the United Kingdom (no. 43098/09, §§ 12-63, ECHR 2013). 13.     On 29 July 2009 an application was lodged with the Court by the mother of Martin McCaughey and the father and daughter of Desmond Grew. They made a number of complaints under the substantive and procedural aspects of Articles 2 and 13 of the Convention. 14 .     While that application was pending before the Court, the Supreme Court held that an inquest should comply with Article 2 of the Convention even if the death occurred before the Human Rights Act 1998 came into force in 2000 (see In the matter of an application by Brigid McCaughey and another for Judicial Review [2011] UKSC 20). Following that decision the Coroner confirmed that the inquest would be conducted as an Article 2 inquest and that matters of planning and control would form part of its scope. 15.     In McCaughey and Others (cited above), which was delivered on 16   July 2013, the Court held that there had been a violation of the procedural requirements of Article 2 of the Convention by reason of excessive investigative delay. However, it found the complaints under Article 2 of the Convention which did not concern investigative delay to be inadmissible as being premature and/or on the ground that domestic remedies had not yet been exhausted within the meaning of Article 35 § 1. Although the inquest had by that time concluded, the applicant had made a number of judicial review applications (see below) through which the courts would have the opportunity to review key aspects of the inquest against the procedural guarantees of Article 2. Therefore, pending the outcome of the domestic proceedings, the Court considered that it could not examine whether the inquest had been deprived, by prior investigative shortcomings or delay, of its ability to establish the facts and determine the lawfulness or otherwise of the deaths in question. It acknowledged that in the case of Hugh Jordan v. the United Kingdom (no. 24746/94, 4 May 2001) the Court had identified certain procedural deficiencies before the inquest had even taken place; however, pursuant to the 2011 judgment of the Supreme Court (see paragraph 14 above), the inquest in the present case had to comply with the procedural requirements of Article 2 (see McCaughey and Others , cited above, §§ 40 and 83). 16.     The Court went on (ibid., § 128) to state that “should the applicants be dissatisfied in the future with the progress or outcome of those domestic procedures, it would be open to them to reintroduce these complaints under the substantive and procedural aspects of Article 2 of the Convention.” Events leading up to the opening of the inquest 17 .     In October 2011 solicitors for the next of kin raised concerns with the Coroner that the soldiers involved in the shooting of Mr McCaughey and Mr   Grew had been involved in other fatal shootings. In doing so, they referred to the allegation that this was a “shoot to kill” incident. Further statements prepared by soldiers A, B, C, D, E, G and I were disclosed to the next of kin in or around February 2012. In his statement soldier A referred to an incident involving a Mr B., in which he had opened fire, and a further incident involving a Mr M., in which he had not personally opened fire. Soldiers C, D and G also disclosed that they had each been involved in another incident, but did not disclose whether they had fired in those incidents and did not provide any further details. Soldiers E and I were silent about their involvement in other incidents. Preliminary hearing on disclosure 18 .     The next of kin and the Ministry of Defence made written submissions to the Coroner in advance of a preliminary hearing which took place on 1   March 2012. The next of kin argued that they were entitled to disclosure of information regarding the involvement of the military witnesses in other incidents in which lethal force was used. They considered this material to be relevant to the justification advanced by the soldiers for the recourse to lethal force. Moreover, the existence either of a “shoot to kill” policy or an environment in which soldiers were implicitly encouraged or permitted to have recourse to lethal force was relevant to the question of whether the operation had been planned and controlled so as to minimise recourse to lethal force. In their view, the refusal to disclose details of other such incidents denied them the right to participate meaningfully in the inquest and prevented the jury from subjecting the soldiers’ conduct to appropriate scrutiny. However, the Ministry of Defence contended that the other incidents were irrelevant to the issues to be determined in the inquest and their inclusion would broaden its scope and cause considerable delay. 19 .     At the hearing, the Coroner was not persuaded that he could assess the relevance of the other incidents in the abstract. He therefore required details of the incidents to be produced to him. Having carefully considered this material and the submissions of the parties, and having subjected the personnel files of every soldier scheduled to give evidence to careful scrutiny, he concluded, in a ruling given on 8 March 2012, that there was one incident involving soldier A (concerning the death of Mr B.) that was potentially relevant to the issues to be determined in the inquest because the circumstances were not dissimilar to those which arose in the present case. He therefore directed that the statement made by soldier A at the inquest into the death of Mr B. and the findings of that inquest should be disclosed to the next of kin. He further stated that prior to the evidence of soldier A he would hear further submissions on whether evidence relating to the other incident was relevant and if so whether the material should properly be introduced at the hearing or whether it should be excluded. 20.     As for the remainder of the material, he concluded: “It can confidently be stated that no reasonable avenue of inquiry about those witnesses that might yield material relevant to the issues at this inquest has been left unexplored.” 21.     Nonetheless, he indicated that he would revisit and revaluate the evidence should evidence given during the inquest cast material previously deemed irrelevant in a new light. An application for leave to apply for judicial review by Brigid McCaughey [2012] NIQB 20 22 .     The next of kin sought further information about the incident involving Mr M. and the incidents involving soldiers C, D and G; and statements from soldiers B, E and I, who had thus far remained silent (see paragraph 17 above). The next of kin of Mr McCaughey therefore sought leave to apply for Judicial Review of the Coroner’s decision of 8 March 2012 (see paragraph 19 above). 23 .     The High Court refused the application on 12 March 2012. The judge would have been minded to grant leave in relation to soldiers B, E and I and soldiers C, D and G, had the inquest not already commenced. However, after years of waiting he considered it to be inappropriate that there should be Judicial Review proceedings that might interfere with the inquest’s conduct and progress. Ruling on the questioning of soldier A 24 .     During the inquest, which opened on 12 March 2012, eight of the nine soldiers directly involved in the operation gave evidence. Only soldier B did not attend, and the statement he gave to the RUC in 1990 was read to the jury. Evidence was also heard at the inquest from soldier J about the training of the soldiers in the unit, including firearms training and training on the rules of engagement, and from soldier K, who was the officer commanding the specialist soldiers. Soldier K gave evidence in relation to the concept of military operations and the planning and control of operations involving the use of lethal force. 25 .     Soldier A arrived in Belfast on 22 March 2012 and gave evidence at the inquest from 26 to 28 March 2012. 26.     Counsel for the next of kin wished to question soldier A about the deaths of Mr B. and Mr M. In a ruling dated 23 March 2012 the Coroner held that soldier A’s involvement in the death of Mr B. was potentially relevant to the incident on 9 October 1990. However, the inquest papers relating to that death did not include any express or implied criticism of soldier A’s conduct. In addition, a new inquest had since been ordered into that death leaving the findings of the earlier inquest in limbo. As such, the Coroner considered that there would be a very real danger of unfairness if questions were put to Soldier A regarding his involvement in a contentious and unsettled death. He also noted the risk that the jury might overestimate the significance of a previous, similar incident. He continued: “I have no jurisdiction to conduct a general inquiry into SAS [the specialist unit of the British army] deaths in Northern Ireland. I consider that to admit references to [Mr B.’s] death would have substantial potential to both distract and dilute attention from consideration of the central issues to be addressed by the jury in these inquests.” 27.     The Coroner therefore refused to admit the evidence of soldier A concerning the death of Mr B. 28 .     The Coroner further concluded that the death of Mr M. was not a relevant previous lethal force incident for the purpose of the present inquest. Accordingly the Coroner ruled that soldier A would not be examined about it and the reference to the incident in soldier A’s statement would be deleted. An application for leave to apply for Judicial Review by Brigid McCaughey (No. 2) [2012] NIQB 22 29.     The next of kin of Martin McCaughey applied to the High Court for a declaration that evidence from soldier A concerning his involvement in the operations that led to the deaths of Mr B. and Mr M. was admissible at the inquest. The grounding affidavit stated that a significant number of controversial deaths had occurred as a result of SAS operations in Northern Ireland, giving rise to allegations of a “shoot to kill” policy, defined by the applicant either as an institutional policy within the army to kill those who might otherwise have been arrested; as the operation by individual soldiers of an approach to their task that promoted an outcome that resulted in unnecessary deaths; or the training of soldiers engaged in operations so as to promote an outcome that resulted in unnecessary deaths. 30 .     In a judgment dated 28 March 2012, the High Court held that the question of whether the deaths of Mr McCaughey and Mr Grew were brought about by a “shoot to kill” policy was a central issue in the inquest, and the Mr   B. incident was potentially relevant to a proper inquiry into whether or not such a policy existed. However, it considered that the Coroner had been right to reject the evidence concerning the Mr M. incident as it did not go to the essence or the substance of the present inquest (see paragraph 28 above). Subsequent attempts to secure soldier A’s reattendance 31 .     Although soldier A lived and worked in the Middle East, having since retired from the Armed Forces, the Ministry of Defence had previously informed the Coroner that he would be available for the duration of the week commencing 26 March 2012. However, it appears that soldier A left Northern Ireland on 28 March 2012, the same day the High Court gave its ruling (see paragraph 30 above). The Coroner was informed of this on 29 March when he sought to recall soldier A in light of that ruling. The Ministry of Defence indicated that while soldier A would not be available the following week, he might be available the week commencing 9 April 2012. However, that week followed the Easter weekend, meaning that the first possible sitting would be on Wednesday 11 April. 32.     On 6 April 2012 the Coroner directed that soldier A make himself available in person to the inquest on 11 April 2012 and on subsequent days as deemed necessary by the court. 33 .     On 10 April soldier A notified the Coroner through an English firm of solicitors that, while he did not object to giving further evidence, he would not be in a position to attend the inquest the following day. He had travelled to Northern Ireland to give evidence to the inquest and returned to the Middle East shortly thereafter. He had come back to the United Kingdom on 6 April but was due to leave on a family holiday on 11 April after which he was to return to the Middle East. He further indicated that he had only learned that he had been directed to return to give evidence on 7 April, and only had the opportunity to seek legal advice on 10 April. Given the gravity both of this inquest and the upcoming inquest into the death of Mr B., he wished to have an opportunity to take proper legal advice on his position. Moreover, he was concerned that he would suffer serious prejudice to his future position in the inquest into the death of Mr B., which had occurred more than twenty-six years previously, if he was now required to give evidence about it without a proper opportunity to recall what happened. 34 .     As soldier A had indicated a willingness to give evidence, the next of kin contended that every step should be taken to secure his attendance – by adjourning the inquest, if necessary. However, on 13 April 2012 the Coroner directed the jury that it was not possible to question soldier A about the death of Mr B. He therefore read to the jury soldier A’s statement concerning the earlier incident, together with the ballistics evidence, the pathology evidence and the findings of the first inquest. 35.     The inquest was then adjourned to 25 April to accommodate certain jurors’ holiday commitments. 36.     Prior to the resumption of the inquest, the Coroner sat without the jury to hear further submissions by the participants about the attendance of soldier   A. The English solicitors who had been in communication with the Coroner (see paragraph 33 above) indicated that soldier A was on a cruise on the Pacific Ocean and that they had no instructions to act on his behalf. They had simply attempted to assist the court by forwarding correspondence from him in circumstances where his identity was secret and for security reasons he could not communicate directly with the inquest. 37 .     On 23 April 2012 the Coroner stated that while the death of Mr B. was relevant, it was not the death currently under the scrutiny of the court. He supported the notion that soldier A ought to reattend, but indicated that he was in the dark about his current and future whereabouts and availability and had no means of finding out. He noted that the questions that could be asked of soldier A concerning the death of Mr B. were limited. Similarities between the two incidents were before the jury and in his view soldier A’s non ‑ attendance did not necessarily damage the Article 2 integrity of the inquest. He considered the possibility of a subpoena, but dismissed it as it would have to be served personally on soldier A, who was currently outside the United Kingdom, was habitually resident outside the United Kingdom, and no one knew when he would return. Finally, the Coroner indicated that two jurors had given him notice of holiday plans between 3 May and 15 May. A further adjournment would therefore have involved a break until 16 May at the earliest, and there was no guarantee soldier A would return on that date, or at all. 38 .     The Coroner therefore considered that the value in completing the inquest efficiently with the evidence he had outweighed the value in speculatively trying to seek the attendance of soldier A, which would have required “some kind of open-ended review of his availability”. Such a course would be neither manageable nor desirable in the context of the inquest and it would have incurred further unquantifiable delay. Accordingly, he concluded that the proportional approach would be to allow the participants to comment on soldier A’s absence in their closing submissions and for him to remind the jury in his own address that soldier A had been directed to appear in relation to Mr B. and had failed to do so. It would then be for the jury as to what it made of soldier A’s non-attendance. As such, he concluded the inquest without further evidence from soldier A. The application to discharge a juror 39 .     On 26 March 2012 the next of kin applied to have a juror discharged on the basis that he had been seen to “nod off” in the course of the proceedings, and that – according to both an expert witness and a member of the Press Association – his physical reactions demonstrated hostility to the case explored by the next of kin. 40.     The Coroner refused the application. He indicated that, from his vantage point, he had no concerns about the behaviour of any of the jurors. 41.     A further application was made the following day, in which the next of kin raised concerns about increasing hostility on the part of the juror. The Coroner indicated that he would keep the matter under review, and would have no hesitation discharging the juror if he saw any hint of hostility towards the next of kin. 42 .     Concerns were again raised on 30 March 2012 and the Coroner again declined to discharge the juror. A further application for his discharge was made on 4 April 2012 on the basis of the aforementioned concerns and the fact that he was repeatedly glaring at the next of kin in the public gallery. The Coroner again declined to discharge the juror. He noted that neither the expert witness, nor the member of the Press Association (see paragraph 39 above), nor any other jurors had raised any concerns with him directly. He further indicated that he had been focused intently on the members of the jury from his unique vantage point and could categorically say that he had not witnessed anything. However, he noted that the juror was positioned in direct line with the family members which might have given the impression that he was looking at them. He nevertheless issued a warning to the jury, reminding them to consider the evidence in an impartial and fair manner and to retain their concentration at all times. 43 .     A further application for the juror’s discharge was made on 26 April 2012, as the sister and brother of one of the deceased claimed that on the preceding evening the juror had spat on the footpath in front of them as he passed by. The Coroner refused the application on 27 April 2012. He accepted that the event took place but considered that there were any number of possible interpretations of the juror’s behaviour. The next of kin had interpreted it through the prism of concerns they had previously raised, concerns which he had held to be unfounded. He expressed reluctance about discharging the juror and jeopardising the jury dynamic on the basis of a highly ambiguous act. Moreover, it had been made clear to the jury on numerous occasions that they should bring any concerns to the attention of the Coroner. Although the jury had sent numerous notes in the course of the inquest, no concerns whatsoever had been raised about the juror in question. The Coroner further indicated that he had observed this particular juror carefully and had been impressed by his dedication and enthusiasm. An application for leave to apply for Judicial Review by Brigid McCaughey [2012] NIQB 44.     The next of kin applied for permission to judicially review the Coroner’s decision of 27 April 2012 (see paragraph 43 above). At the time the application was brought the inquest jury had already retired to consider their verdict. 45.     In an affidavit, the Coroner stated that he had not observed the juror sleeping in the course of the inquest, although he acknowledged that there were moments when this juror – and other jurors – had appeared fatigued and closed their eyes. When that had happened, he had intervened to guard against the possibility of jurors loosing focus and, where appropriate, he had afforded the jurors a break. He had not observed any hostility on the part of the juror, despite having observed him keenly. 46 .     The High Court refused the application for leave. In its view, the factual matrix had to be determined by the Coroner; he had observed this particular juror and was impressed by his dedication and enthusiasm. Therefore, an informed and fair-minded observer would not conclude either that the juror was biased or that he had the appearance of bias. The judge indicated that even if he was wrong in that analysis he would in any event have refused leave. The present inquest had commenced after years of waiting and it should not be disrupted unless there were exceptional circumstances. The present circumstances were not exceptional and would not therefore warrant the grant of leave at this late stage. The inquest: questions to the jury 47 .     After hearing the parties’ submission on his draft questions, the Coroner asked the jury the following questions: “1.     What were the medical causes of the death of (a)   Mr McCaughey and (b)   Mr   Grew? 2.     Summarise the scenario in which the deaths occurred, so that if I were a newcomer to the case which no knowledge of it, I could understand the broad background and circumstances. 3.     What role, if any, did the soldiers on the ground have in the deaths of Mr   McCaughey and Mr Grew? In particular: (a)     What was the nature and purpose of the operation in which the soldiers were involved that night? (b)     If you find that the deaths occurred as a result of shots fired by soldiers, then when the soldiers opened fire, what was their state of belief as to the circumstances in which they did so? (c)     After opening fire did the soldiers continue to fire? If so, what was their state of belief as to the circumstances as they did so? (d)     If a shot or shots were fired in the vicinity of the mushroom sheds themselves, how many shots were fired there, in what circumstances were they fired and what was the state of belief of the soldier or soldiers who fired as to the circumstances? (e)     Having regard to your answers above, particularly in relation to the soldiers’ state of belief as to the matters raised, was the force used by each of them, at each point in the incident that force was used, reasonable in the circumstances? (f)     Having regard to your answers above, particularly in relation to the soldiers’ state of belief as to the matters raised, was there another reasonable course of action (or other reasonable courses of action) open to the soldiers as an alternative to (i)   opening fire and (ii)   firing thereafter? (g)     Having regard to the above, was the operation conducted by the soldiers on the ground in such a way as to minimise to the greatest extent possible any recourse to lethal force? (h)     Was there any aspect of the training of, or planning by, any soldier or soldiers on the ground that could account for the deaths? ... 5.     Please identify, if you consider it possible to do so, what wound or wounds caused Mr McCaughey’s death? From whereabouts was that wound or were those wounds inflicted? Where was Mr McCaughey positioned when he sustained that wound or those wounds? Did he receive any injury or injuries in addition to the fatal wound/s? If so, in what circumstances did the other injury or injuries occur? Having regard to all the evidence, including the evidence of the soldiers, the pathologists and the ballistics experts, what other conclusions (if any) can you reach concerning the force used against Mr McCaughey? 6.     Was the operation planned, controlled and supervised in such a way by the RUC and the military as to minimise to the greatest extent possible any recourse to lethal force? Consider in particular: (a)   the purpose of the operation; (b)   the roles and responsibilities of the various personnel involved; (c)   the state of knowledge of police and military personnel involved in the planning of the operation as to the likely presence of the deceased or other persons at the location of the deaths on the night that the deaths occurred; (d)   the state of knowledge of the soldiers involved in the operation on the ground as to the likely presence of the deceased or other persons at the location of the deaths on the night that the deaths occurred; (e)   whether there were other reasonable steps that might have been taken in the course of the planning and control/supervision of the operation. 7.     What part, if any, did Mr McCaughey and Mr Grew have in their deaths? 8.     Beyond any findings you have made on consideration of the above questions, is there any other factor that you would wish to record as having in some (more than minimal) way caused or contributed to the deaths of Mr McCaughey or Mr Grew?” The inquest: the next of kin’s closing and the summation by the coroner 48 .     Counsel for the next of kin, in their final submissions to the jury, drew parallels between the shooting of Mr B. and the shooting of Mr McCaughey and Mr Grew, and reminded the jury that they had been denied the opportunity to question soldier A because he refused to make himself available, despite the direction of the court. 49.     In a lengthy summation to the jury, the Coroner explained that in the course of the inquest they had heard two broad theories about how the deaths occurred. The soldiers described a surveillance operation, in the course of which they were surprised by armed men. They opened fire when the men started to advance towards them with their weapons in the ready position; and they continued to fire because, having misinterpreted sparks and tracer rounds as muzzle flashes, they believed that the two men, and possibly others, were firing back at them. An alternative theory put to them was that it was in actual fact more of an ambush than a defensive action. The Coroner explained that it was for the jury to determine whether either theory was correct or if the truth lay somewhere in between. 50.     It taking the jury through the relevant evidence he referred to question   3(e) and said the following: “What you are being asked here is: Was the force used by each of [the soldiers], so you have to consider each of them, at each point in the incident that force was used, was that reasonable in the circumstances?” 51 .     On the soldiers’ training, the Coroner said: “Now of course, ladies and gentlemen, whenever you are looking at all of this evidence much will depend on our own impressions about the credibility of the soldiers, really just do you believe the soldiers. These men have really been presented to us as professional soldiers, and we have been told that they were well trained. It is open to you to consider, of course, ladies and gentlemen, that even a soldier who is well trained, well, is that soldier not going to be surprised, or not going to be scared whenever this kind of incident takes place? ... So think about this, ladies and gentlemen; these are men who have been presented to us as professional, well trained soldiers. We have also been told that they acted calmly in the events that unfolded. Weigh that, then, ladies and gentlemen, against the scenario that they say they found themselves in, and what you think about that scenario. But if you believe the scenario that the soldiers have placed before you, if they are taken by surprise by this situation, by armed men arriving at the shed, is it reasonable, do you think, that they would have been anxious about that situation? These are all matters of course, ladies and gentlemen, for you to weigh up and consider whenever you are remaking your assessment of this matter.” 52.     With regard to the soldiers’ mistaken belief that flashes and sparks were muzzle rounds (see paragraph 47 above), he said: “Now, was this ... a misapprehension that could be made by experienced soldiers?” 53 .     The Coroner also addressed the soldiers’ apparent belief that bullets were passing over their heads: “There were no bullet fragments recovered from behind the soldiers’ positions. They were experienced soldiers. You have heard evidence of the extensive training that they received in dealing with conflict scenarios, so on the one hand, ladies and gentlemen, you have to weigh the confused picture with which the soldiers say they were confronted, but on the other hand you have to bear in mind that they were professionally trained to deal with situations of this kind or fire fight scenarios ...” 54 .     On the subject of the yellow card, which was carried by the soldiers and which set out the army’s terms of engagement, the Coroner said: “Perhaps it’s worth just rehearsing what the yellow card said at this stage. Under general rules at number 1 it said: ‘In all circumstances you are to use the minimum force necessary. The firearms must only be used as a last resort.’ ... On opening fire then at paragraph 5 it says: ‘You may only open fire against a person: A, if he is committing or likely to commit an act likely to endanger life and there is no other way to prevent the danger. ... At number 6 it then states: ‘If you have to open fire you should A, fire only aimed shots; B, fire no more rounds than are necessary; and C take all reasonable precautions not to injure anyone other than your target.” 55 .     The Coroner also mentioned that soldier A had not reattended the inquest despite having been specifically instructed to do so. He then set out the circumstances of Mr B.’s death while also pointing out that soldier A had a long military history which had included two commendations. He had been involved in many operations in Northern Ireland over a number of years but had only discharged his weapon on two occasions. No criticism was aimed at him in the earlier inquest into the death of Mr B., but the jury was reminded that there was to be a second inquest which would be greater in size and shape. He continued: “Now, whenever you look at the [Mr B.] incident it may, of course, cause you to be more questioning about soldier A’s account of his involvement in the deaths of Mr   McCaughey or Mr Grew. On the other hand, you might regard it as illustrative of the difficult role a solider deployed on operations of this type in Northern Ireland in the 80s and 90s was required to perform. Or, indeed, ladies and gentlemen, it is quite open to you to conclude that the [Mr B.] incident doesn’t really assist you at all in determining the issues to be considered regarding the deaths of Mr McCaughey and Mr Grew. It is a matter entirely for you what to make of it.” 56.     Finally, the Coroner repeatedly reminded the jurors of their need to consider the evidence in an impartial and fair manner, and to report any concerns about the dynamic of the jury or the actions of any other jurors. 57 .     A juror subsequently asked if a shot fired into a corpse could legally be defined as excessive force. After hearing submissions from the parties the Coroner brought the jury back in and said the following: “the principle interest of the inquest is of course how the person came by their death. So technically, ladies and gentlemen, once you are satisfied on the balance of probabilities that somebody is dead, then at that stage you can draw a line underneath it. ... if however, ladies and gentlemen, you feel that in order to properly understand a death you need to comment on a sequence of events, well that is something of course that I will consider in the course of your findings. But it is my view ladies and gentlemen that in a strict legal sense questions of excessive force concern events that lead to the death in the context of the inquest and not events that take place after you are satisfied on the balance of probabilities that the person is dead.” The inquest: narrative verdict 58 .     The inquest ended on 2 May 2012 with a unanimous verdict of “lawful killing”. In addition to this short-form verdict, the jury also returned a narrative verdict in which it made findings regarding the background circumstances and the cause of death. It found that the operation on 8 October 1990 was part of an ongoing surveillance operation by the RUC to continue surveillance of a car in the mushroom shed, arrest anyone involved in terrorist activity and place a camera in the premises. With regard to the state of belief of the soldiers when they opened fire, the jury found that they “opened fire and shot the two men in the belief that their position was compromised and that their lives were in danger. The soldiers believed that radio ‘tones’ may have alerted the men to their position. Mr McCaughey and Mr Grew were approaching the soldiers with their guns in the ready position.” 59.     The jury also found that the soldiers “continued firing believing that they were under sustained fire. They interpreted sparks, rebound flashes and tracer rounds, as they saw them through their night sights, as muzzle flashes.” 60.     The jury considered that in the circumstances the soldiers had used reasonable force. While they were not unanimous about whether, on the balance of probabilities, there had been an opportunity for the soldiers to have arrested Mr McCaughey and Mr Grew before they felt compromised, once they felt compromised the jury agreed that there had been no other reasonable course of action. 61.     As for the planning, control and supervision of the operation, the jury considered that a specialist military unit had been used to minimise the danger to RUC officers; each individual had a specific role and there had been no ambiguity; and while soldier H had overall control of the operation (see paragraph 6 in fine above), soldier A had been in command of the soldiers on the ground and had therefore been in the best position to make decisions and to minimise to the greatest extent possible any recourse to lethal force. 62 .     With regard to the part Mr McCaughey and Mr Grew had in their own deaths, the jury found that they had put their lives in danger by being in the vicinity of a stolen car expected to be used in terrorist activity, and by being armed with guns and wearing gloves and balaclavas.   In the Matter of an Application by Sally Gribben for Judicial Review and in the Matter of Rulings by the Coroner (a)    Permission to apply for judicial review 63 .     The applicant in the present case subsequently brought an application for permission to apply for judicial review. In particular, she sought an order of certiorari to quash the verdicts of the jury of 2 May 2012 (see paragraphs   58-62 above); a declaration that the inquest proceedings did not comply with the State’s investigatory obligation under Article 2 of the Convention; and an order of mandamus directing a fresh inquest into the deaths. In particular, she complained about the refusal to provide the next of kin with disclosure of information relating to the involvement of military witnesses in other lethal force incidents in Northern Ireland, the editing of the statements provided to the jury to remove references to their involvement in such incidents, and the fact that the next of kin were prevented from questioning military witnesses about their involvement in such incidents; the failure to secure the reattendance of soldier A; the decision to conduct the inquest with a jury; the Coroner’s decision not to discharge one juror who appeared to be hostile to the next of kin (see paragraphs 39-43 above); and the nature of the Coroner’s questions, directions and summation to the jury concerning the justification for the use of force (see paragraphs 47-57 above). 64 .     In a judgment of 18 October 2012, the High Court was satisfied that the evidence of soldier A was potentially relevant to the “shoot to kill” issue raised in the present case, and considered it “arguable” that the Coroner should have taken further steps to secure his presence at the inquest. Leave to apply for judicial review was therefore granted on this ground. However, permission was refused on the remaining grounds. Regarding the use of a jury, the High Court noted that this issue was not raised before the Coroner and had only emerged in the application for judicial review. 65 .     The applicant appealed to the Court of Appeal, which, on 3 June 2014, granted leave on the following additional grounds: the Coroner’s failure to disclose to the next of kin potentially relevant material relating to the involvement of military witnesses in other lethal force incidents in Northern Ireland; the Coroner’s refusal to permit the next of kin to cross examine military witnesses as to their involvement in other lethal force incidents in Northern Ireland; and the Coroner’s redaction of the statements of military witnesses to remove references to their involvement in other lethal force incidents in Northern Ireland. 66.     Before the Court of Appeal the applicant had also argued that the anonymity of the jury and the requirement of unanimity was not compliant with Article 2 of the Convention. Shortly beforehand the High Court, In The Matter Of Three Applications By Hugh Jordan For Judicial Review ([2014] NIQB 11), had held that the inquest in that case should not have been held with a jury because there was a real risk of a perverse verdict. As that case was subject to appeal, the Court of Appeal did not grant leave in relation to the jury issue but noted that the applicant might wish to raise it with the judicial review judge once the Court of Appeal judgment in Jordan’s (Hugh) Applications was available. 67 .     Leave was refused on the remaining grounds (see paragraph 63 above) as they were not considered to give rise to any arguable case with a reasonable prospect of success. (b)    Judgment of the High Court 68.     In a judgment of 13 April 2015 ( An Application by Sally Gribben for Judicial Review [2015] NIQB 51) the High Court refused leave for a challenge to be made to the engagement of a jury at the inquest. Pursuant to the judgment of the Court of Appeal in Jordan’s (Hugh) Applications [2014] NICA 76 (see paragraph 88 below) it could not be said that there was inevitably a real risk of a perverse verdict in legacy inquests if the Coroner sat with a jury. The High Court reiterated that in the present case the applicant had not challenged the engagement of a jury before or during the inquest (see paragraph 64 in fine above). In its view, this was an issue that ought to have been dealt with by application to the Coroner prior to the commencement of the inquest. This did not happen, despite the applicant having brought multiple challenges by way of judicial review, before, on the eve of, and during the inquest. She had therefore opted for a jury hearing until the jury had returned its verdict. In any event, the judge noted that in the present case nothing had occurred that called into question the conduct of the jury in reaching a verdict, nor had anything occurred that would warrant quashing the jury’s verdict. 69 .     The judge was further satisfied that there had been an effective examination and investigation of the “shoot to kill” issue for Article 2 purposes. The expression “shoot to kill” could be variously understood. However, in the present case the applicant did not contend that there was a general policy or order issued to shoot all suspected terrorists. Rather, she contended that unnecessary force was used when soldiers confronted armed men by not being prepared to effect arrests. The planning of the operation was also said to have been marked by aggressive positioning so as to promote the use of lethal force, and a culture was said to have developed with the soldiers of taking unnecessarily aggressive action towards suspects. Soldier   K, the officer commanding the unit (see paragraph 24 above), had been questioned about the existence of such a policy in relation to suspects. Soldier H, the officer commanding the operation (see paragraph 6 above), was asked about the appropriate positioning and expert evidence had also been called on this issue. Soldiers A, C and D, who had fired their weapons (soldier B, who had also fired, was unable to attend the inquest – see paragraph 24 above) gave evidence about the culture and manner in which the operation was conducted, and the four support soldiers (soldiers E, F, G and I) were available to be questioned on this issue. The jury had t