The Court of Appeal today allowed an appeal by Martin McCauley against his conviction in 1985. The appeal was brought by the Criminal Cases Review Commission.
Martin McCauley (“the appellant”) and Michael Tighe were shot by the police in a hay shed near Lurgan on 24 November 1982. The appellant was injured and Michael Tighe was killed. It was not disputed that the police found three rifles lying on bales of hay in the shed, there was no ammunition found in the rifles or in the shed, and the rifles were old and heavily corroded with rust. It was also not disputed that there was no gunfire directed at the police from inside the shed.
The Crown case at the trial was that a RUC mobile patrol was operating in the Lurgan/Portadown area when they received information that caused them to go the shed. They said they heard a noise like a rifle being cocked and called out “Police – throw out your weapon”. There was no reply and one of the officers looked inside and saw a man moving in their direction pointing a rifle. Two of the officers fired almost simultaneously at the man, who was the appellant. The officers claimed they then saw Michael Tighe high up among the bales of hay, again pointing a rifle, and they shot at him.
The trial judge was aware that each of the police officers had knowingly given a false account in their first written statements after receiving a briefing from superior officers in Special Branch. Their account was intended to disguise the fact that the patrol had been directed to the hay shed on Special Branch information. It was claimed that the disclosure of the truth would have put the source of the information at risk. The trial judge was concerned about the credibility of the police officers. He was also concerned about the inconsistency between the forensic evidence dealing with the firing of the shots and the location of the officers. He expressed considerable doubt about the allegation that Tighe and the appellant each held and pointed a rifle in the direction of the officers. The trial judge concluded that in light of the unreliability he should exclude the evidence of the police officers. He then considered the evidence given by the appellant and indicated that he did not believe a word of his explanation as to how he and Tighe came to enter the hay shed. The judge was satisfied beyond reasonable doubt that they were there for the purpose of handling or working at the rifles and that they were at all material times in their joint possession. He convicted the appellant of possession of the rifles and sentenced him to two years imprisonment suspended for three years.
The CCRC had access to sensitive material held by the PPS and the Security Service as well as the Stalker/Sampson report. These materials disclosed that there was an eavesdropping operation at the hay shed prior to and during the shooting which was conducted by RUC Special Branch with the technical assistance of the Security Service. The CCRC discovered that the fact that the operation took place was revealed to the DPP but not to the trial judge or the defence.
They also found that the DPP was not told that the eavesdropping operation produced audio tape recordings of events immediately before and during the RUC raid. The recording revealed that no warnings were shouted by the RUC officers before they first opened fire. The CCRC discovered a memo dated 25 November 1982 from an officer who said that he had learnt that the RUC officers had exceeded their orders and shot the terrorists without giving them a chance to surrender. The Deputy Head of Special Branch had had the tape and monitor logs destroyed because of the deep embarrassment this might cause. An unauthorised copy of the relevant tape had been made by the army and eventually came into the possession of the Security Service. This copy was retained by the Security Service until the summer of 1985 when it was destroyed. This means that a copy of the tape was held by the Security Service at the time of the appellant’s trial. Transcripts of the audio recordings were also made to which the Security Service had access.
The CCRC established that on 21 June 1983 the Deputy Head of Special Branch attended a meeting at the DPP’s office at which he indicated that police had responded to general intelligence information that PIRA were active in the area. The minute of the meeting suggests that he deliberately misled the DPP’s office by concealing the eavesdropping operation. This minute was sent to the Security Service advising them that the full intelligence background had not been disclosed because DPP staff had no need to know. The DPP’s office was dissatisfied with the information provided and issued further detailed directions including a request for radio transmissions relating to the incident and directing the examination and retention of all logs and records made concerning the incident. On 12 August 1983 the DPP was informed by the Security Service that there had been an eavesdropping device but was not told that any recording or transcription had been prepared.
The DPP formally initiated a request for an independent investigation of the events at the hay shed which was carried out by John Stalker. He made enquiries in relation to any recordings and/or transcripts from the eavesdropping device. The report, eventually prepared by Sir Colin Sampson, indicated that it was clear that the RUC had no intention of volunteering the device. The Security Service agreed that it would co-operate fully but stated that the actual product of the device was the property of the Chief Constable of the RUC. The senior legal adviser to the Security Service failed to inform Mr Stalker that the Security Service had retained its own copy of the tape recording. Mr Stalker was also highly critical of the manner in which the police investigation was conducted. The Detective Chief Superintendent in charge of the investigation did not arrive at the scene until about one and a half hours after the incident occurred and at that time members of Special Branch were busy at the scene. It was suggested that this was to ensure that the Security Service eavesdropping device could be removed. Mr Stalker also noted that senior officers appeared unwilling to follow natural lines of enquiry which would have identified the involvement of Special Branch. He noted that the Senior Investigating Officer did not attend the post mortem where information should have been gleaned about the trajectories of the bullets. Neither the officers who fired the shots nor their weapons were made immediately available to members of the CID. The officers were debriefed by Special Branch before any interviews were conducted by the CID. Mr Stalker considered that, in his experience, the instruction to the officers to make false statements was “unprecedented and without justification”. He also drew the conclusion that the lack of recovery of cartridge cases from the scene was because they had been located and removed by police officers who were not from the CID team.
Consideration by the Court of Appeal
The appellant submitted that his prosecution and conviction constituted an abuse of process and the Court of Appeal should find his conviction unsafe. The PPS did not resist the appeal in light of the cumulative effect of the misconduct in the case.
The Lord Chief Justice, delivering the judgment of the Court, said that the first question to be considered was whether the misconduct of the police in destroying their copy of the eavesdropping tape and the Security Service in not disclosing their copy when they knew the appellant was facing trial rendered the appellant’s trial unfair. He said that the eavesdropping device may not have given much direct evidence about how the appellant entered the shed or what precisely he did when he was there but it seemed likely that it would have provided information in relation to what if anything was said after the shooting:
“It is not possible now to determine what if anything was recorded in relation to the events immediately after the shooting but the misconduct of the police in deliberately destroying this source of evidence deprived the appellant of the opportunity to examine the product of the device for the purpose of assisting his defence on that issue. In those circumstances the deliberate destruction of the first tape and the withholding of the copy tape by the Security Service in our view rendered the appellant’s trial unfair. On that ground alone, the conviction is unsafe.”
The second question for the Court of Appeal was whether the conviction undermined public confidence in the criminal justice system and brought it into disrepute. The Lord Chief Justice said this was a case where the police officers involved in the shooting lied to the investigating officers when providing their original statements at the direction of senior officers. The tape, which was relevant evidence, was deliberately destroyed and the Lord Chief Justice said that it was “at least arguable that this amounted to a perversion of the course of justice”. He added that the police had initially misled the DPP as to whether there was an eavesdropping device and said even when its existence was disclosed by the Security Service the police failed to disclose that there had been an audio recording of the events and a transcript despite a clear direction from the DPP requesting that material. The Lord Chief Justice commented that the failure of the Security Service to disclose the tape to Mr Stalker and to provide it to the prosecution was “reprehensible”.
“In our view these matters amounted cumulatively to grave misconduct. In considering the balance it is at least some mitigation that the police officers did not attempt to stand over their initial untrue account by the time they came to give evidence. The offence with which the appellant was charged was relatively serious but the learned trial judge acquitted the appellant of the more serious offence of possession with intent to endanger life having regard to the state of the weapons and imposed a suspended sentence. For the reasons already given we consider that the appellant was prejudiced.”
The Court of Appeal concluded that this was a case where the misconduct was such that it would be contrary to the public interest in the integrity of the criminal justice system to uphold the conviction. For the reasons given, the Court of Appeal allowed the appeal.