Time is running out and this letter comes as a public challenge to the PFC and RFJ to say if I am wrong about Mr Justice Humphreys’ unlawful use of CMPs in the Frizzell and Lundy Cases?
I understood your initial concern about re-traumatising Families. Re-traumatisation is a valid consideration but, I believe, most Families would prefer to know the truth than to have their Cases sabotaged after decades of legal struggles.
Families are being failed and misled but have a right to make informed decisions. I think it reasonable for the PFC and RFJ to state publicly if I am wrong and help remove any confusion or upset my assertions may have caused any Family. But if you agree with my assessment then you ought to do what is within your power to help prevent the potential for one of the biggest perversions of justice in NI history.
The PFC and RFJ have the capacity to give the Families independent assessment on whether my assertions are correct. Given the proximity of the Trials, it would be inexcusable and unforgivable if PFC and RFJ's continued silence contributed to the unlawful removal of collusion as a potential verdict in hundreds of Legacy Cases.
Expert legal opinion from KRW Law is that the outcome from the Frizzell and Lundy Cases “will therefore impact scores, if not hundreds of cases”[1] Logically, the only consistent common denominator for hundreds of murder cases separated not only by geography, but decades, is the role 'collusion' played in the murders.
The PFC and RFJ have the capacity to give the Families independent assessment on whether my assertions are correct. Given the proximity of the Trials, it would be inexcusable and unforgivable if PFC and RFJ's continued silence contributed to the unlawful removal of collusion as a potential verdict in hundreds of Legacy Cases.
Expert legal opinion from KRW Law is that the outcome from the Frizzell and Lundy Cases “will therefore impact scores, if not hundreds of cases”[1] Logically, the only consistent common denominator for hundreds of murder cases separated not only by geography, but decades, is the role 'collusion' played in the murders.
Many Legacy Cases involve security force collusion with loyalists to obtain, transport and distribute guns from South Africa. Even if we accept the plausibility of Security Forces' claims they lost track of the weapons at a convenient juncture, at issue in these proceedings is what steps were taken to try re-locate the shipments and prevent their bulk distribution or individual use in any murders. The Security Forces endeavoured to help arm Loyalist Paramilitaries and losing track of the shipments is still consistent with the overall plan. It looks like nothing more than an attempted built in deniability clause – the start and end objectives are achieved; Loyalists got, and used, their weapons with Security Force assistance. It is easy to see the value to the State of a verdict of collusion being removed as a possible outcome in November, with consequential knock-on effect in hundreds of other Legacy Cases.
You are aware I have been voicing my concerns about the unlawful use of CMPs in Legacy Cases for some time. So much so I gave up on both your inaction to, singlehandedly, take the extraordinary step of lodging an application to intervene in the interests of justice. You will be aware, Humphreys J did not address my legal arguments but was dismissive and misleading in his written decision.[2] His avoidance should have motivated you both. My arguments remain relevant and available; they are re-set out here in a Pensive Quill article: ‘Stop The Removal of Collusion As A Verdict In Legacy Cases’[3])
You are aware, inquests and civil proceeding are prohibited from making findings of criminal culpability but ought to be cognisant of any criminal cause or matters. Mr Justice Humphreys has already ruled out any possibility of criminal accountability for the Defendants even if they are responsible for the 4 murders: “No such jeopardy exists as the direct effect of these civil actions”. That is a highly irregular and improper conclusion for Mr Justice Humphreys to make - worse still, he has done so months before actually presiding over the scheduled 5 day civil trials this coming November. Justice for the Families depends on observance of the rule of law and Mr Justice Humphreys is disregarding it, it appears, to ensure the Families are denied justice. It should also be noted how Mr Justice Humphreys was not helpful toward the Special Advocates when they informed His Honour that they did not have access to all the withheld evidence. And I would not trust a Special Advocate to act in my interests to begin with when they are not my legal representative and their fiduciary duty is to the state agency from where they take their instructions.
You will be aware several NI Judges have recently discontinued legacy cases on recommendation of public inquiries being more suitable venues. Those recommendations were probably influenced by Baroness Hallett’s views on how to handle sensitive material where Closed Material Procedures and excluding grieving families is not a legal option. Baroness Hallett had been appointed to conduct an inquest into the death of Dawn Sturgess after she sprayed herself with military-grade nerve agent Novichok in mistaken belief it was perfume. Because sensitive national intelligence was involved the Baroness recommended that the government convert the inquest into a public inquiry:
Even in civil proceedings, Mr Justice Humphreys may have been motivated to use CMP declaration to unlawfully get around Public Interest Immunity provisions out of the same concerns expressed to the Home Secretary by Baroness Hallett:
You are aware I have been voicing my concerns about the unlawful use of CMPs in Legacy Cases for some time. So much so I gave up on both your inaction to, singlehandedly, take the extraordinary step of lodging an application to intervene in the interests of justice. You will be aware, Humphreys J did not address my legal arguments but was dismissive and misleading in his written decision.[2] His avoidance should have motivated you both. My arguments remain relevant and available; they are re-set out here in a Pensive Quill article: ‘Stop The Removal of Collusion As A Verdict In Legacy Cases’[3])
You are aware, inquests and civil proceeding are prohibited from making findings of criminal culpability but ought to be cognisant of any criminal cause or matters. Mr Justice Humphreys has already ruled out any possibility of criminal accountability for the Defendants even if they are responsible for the 4 murders: “No such jeopardy exists as the direct effect of these civil actions”. That is a highly irregular and improper conclusion for Mr Justice Humphreys to make - worse still, he has done so months before actually presiding over the scheduled 5 day civil trials this coming November. Justice for the Families depends on observance of the rule of law and Mr Justice Humphreys is disregarding it, it appears, to ensure the Families are denied justice. It should also be noted how Mr Justice Humphreys was not helpful toward the Special Advocates when they informed His Honour that they did not have access to all the withheld evidence. And I would not trust a Special Advocate to act in my interests to begin with when they are not my legal representative and their fiduciary duty is to the state agency from where they take their instructions.
You will be aware several NI Judges have recently discontinued legacy cases on recommendation of public inquiries being more suitable venues. Those recommendations were probably influenced by Baroness Hallett’s views on how to handle sensitive material where Closed Material Procedures and excluding grieving families is not a legal option. Baroness Hallett had been appointed to conduct an inquest into the death of Dawn Sturgess after she sprayed herself with military-grade nerve agent Novichok in mistaken belief it was perfume. Because sensitive national intelligence was involved the Baroness recommended that the government convert the inquest into a public inquiry:
A statutory inquiry would permit me to allow some evidence to be heard in closed session from which members of the public and core participants may be excluded. Although such a closed hearing would, in usual circumstances, be undesirable, the national security concerns in this case mean that the sensitive evidence is likely only be able to be examined and tested in a closed hearing, or not at all.[4]
Even in civil proceedings, Mr Justice Humphreys may have been motivated to use CMP declaration to unlawfully get around Public Interest Immunity provisions out of the same concerns expressed to the Home Secretary by Baroness Hallett:
If these proceedings remain as an inquest, most of the content of the documents will have to be excluded by operation of Public Interest Immunity.
Use of CMPs illicitly lets secret evidence be underhandedly used against the Families in secret proceedings His Honour has 1) excluded the Families from; and, 2) improperly absolved the Defendants of any criminal culpability in the murders.
I understand your initial reluctance to become involved but the clock is ticking and the consequences of Mr Justice Humphreys mishandling of the Frizzell and Lindy Cases could be catastrophic for so many Families. I feel you each have a moral responsibility to Families who trust your advice involving matters of collusion and legacy cases.
I trust the PFC and RFJ will soon make the right decision.
I understand your initial reluctance to become involved but the clock is ticking and the consequences of Mr Justice Humphreys mishandling of the Frizzell and Lindy Cases could be catastrophic for so many Families. I feel you each have a moral responsibility to Families who trust your advice involving matters of collusion and legacy cases.
I trust the PFC and RFJ will soon make the right decision.
- KRW Law Press Release: Hearing Listed To Determine State Liability For 1988 Loyalist Weapons Importation | KRW Law-LLP - Human Rights Lawyers.
- Humphreys J’s Judgment on Frizzell Intervention Application.
- The Pensive Quill, 12th October 2024.
- Baroness Heather Hallettt letter to Home Secretary Priti Patel MP, 29 July 2021.
⏩ Christy Walsh was stitched up by the British Ministry of Defence in a no jury trial and spent many years in prison as a result.
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