Stop The Unlawful Removal Of Collusion As A Verdict In Legacy Cases

Christy Walsh ✍ When I learned about Closed Material Procedures (CMPs) being used in Legacy Cases I assumed Mr Justice Humphreys had made a mistake.

The only way I could bring the legal errors to the Judge’s attention was through formal intervention in the ongoing legal proceedings he was, and is, presiding over. I followed the strict Rules of Court by setting out the law and the reasons my intervention was necessary.

The value of my intervention

1. involves no replication of any party arguments, and;

2. introduces material information and legal arguments the Court would otherwise be deprived of, and;

3. raises issues of consequence which cannot be adequately dealt with by Counsel for any party to the proceedings, and;

4. promotes the interests of justice by safeguarding the Plaintiffs Article 6 Convention rights, and, it prevents the perversion of justice to “scores, if not hundreds of cases”.

His Honour’s written response was full of inaccuracies and ad hominin. In no way did the Judge address the legal issues I will repeat below which remain relevant, pertinent and in abeyance. Although, Humphreys J made disclosures he has never made before. At paragraph 3, taken on its face, Mr Justice Humphreys reveals that he, unsolicited, started the applications for the Closed Material Procedures, specifically, on ‘the court’s own motions’.

[3] On 10 December 2021 the court, of its own motion, made declarations pursuant to section 6 of the Justice and Security Act 2013 (‘the 2013 Act’), that closed material procedure applications may be made to the court in these proceedings.[1]

If we look at Humphreys J’s 2023 open Judgment justifying the use of CMPs we see that he tactfully omits identifying who applied for the CMPs despite being under statutory requirement by law to do so. Paragraphs 7 and 9 reveal a lot, where one can see that only after Mr Justice Humphries issued the CMP declarations did the Ministry of Defence (MoD), Police Service of Northern Ireland (PSNI) and Secretary of State for NI (SoS) make section 8 applications asking for evidence to be kept secret.

[7] In each case, the court made a declaration pursuant to section 6 of the Justice and Security Act 2013 (‘JSA)…

[9] The defendants then applied, under section 8 of JSA, to the court for permission not to disclose material otherwise than to the court, the special advocates and the Secretary of State. [2] (Bold font emphasis added)

For legal reasons, CMPs have never been used in any legacy case before but Mr Justice Humphreys took it upon himself to make an exception and issue declarations with no state party asking him to do so. Mr Justice Humphreys issued the CMP declarations (para 7) before the MoD, PSNI, and SoS hinted or suggested they had any evidence to be kept secret (para. 9). His Honour provided no explanation why he was departing from the statutory requirements of the law with these cases.

It must be emphasized that no state agency, not the MoD, PSNI, or MI5 have ever applied for CMPs in legacy cases, including the Frizzell and Lundy cases because they are not lawfully available in civil cases involving murder. Although, State Agencies have applied for Public Interest Immunity certificates (PIIs) in Legacy Cases to withhold sensitive evidence from the Families on grounds of ‘national security’. Those who apply for PIIs must be identified by the court. This is supported by all cases where PIIs have been issued and judgments published. The withheld evidence is set aside or otherwise neutralized and State Agencies cannot rely on it. In-camera rules apply to the proceedings, so the public and journalists are excluded from the courtroom and only the parties involved in the proceedings are present.

The former Lord Chief Justice, Sir Declan Morgan, citing Mr Justice Weatherup, provides succinct reasoning behind inquests:

The purpose of the inquest is to allay rumour and suspicion and to investigate fully and explore publicly the facts pertaining to a death occurring in suspicious, unnatural or violent circumstances.[3]

Mr Justice Humphreys is doing the opposite, by removing transparency and reasoned decisions. This article revolves around His Honour’s handling of the Frizzell and Lundy Cases due to be heard by him on 25th November 2024. A KRW Law press release estimates the outcome of the Hearings “will therefore impact scores, if not hundreds of cases”[4] This means that Mr Justice Humphreys unlawful use of CMPs has the potential to undermine hundreds of other legacy cases.

Section 6 of the Justice and Security Act 2013 (JSA) allows the use of CMPs in the interests of national security but not in all civil cases. For example, closed material procedures are not available if Public Interest Immunity certificates can be used. CMPs differ from PIIs in 2 respects, the withheld evidence can be used secretly against the Plaintiff’s, and the Plaintiffs will be excluded from the proceedings along with the public and journalists. However, closed material procedures are not lawfully available in legacy cases because they would undermine the integrity or safety of future criminal proceedings or investigations. Mr Justice Humphreys’ unlawful use of CMPs means he has improperly and prematurely ruled out the possibility of accountability of State Agents or Loyalists for alleged collusion in the murders of Brian Frizzell, Alan Lundy, Katrina Rennie and Eileen Duffy. Loyalists: Alan Oliver, Anthony McNeill and, Thomas Harper have refused to participate in the proceedings, as is their right, out of concern they might incriminate themselves. There is no specific offence of collusion but Loyalist/Security Force collusion in murder is a prosecutable criminal act.

In his 2023 Judgment, Mr Justice Humphreys did not give the required statutory notice under Section 6(10) of the JSA, for his own unsolicited motions. His Honour provided no transparency or gave any explanation why he ruled out Public Interest Immunity certificates as an option. If Mr Justice Humphreys thinks collusion was a necessary evil, then that satisfies the threshold of his own unlawful motions. His Honour has set the bar extremely low and any evidence of collusion can be kept secret. Mr Justice Humphreys has gifted Loyalists and State parties an unconscionable unfair advantage to defeat any allegations of collusion. The Families had the right to the secret evidence. But for His Honour’s unsolicited invitation to the State Agencies to come up with evidence they wanted him to hide from the Families, The MoD, PSNI and SoS would otherwise have had to disclose the withheld evidence had Mr Justice Humphreys not acted unlawfully.

Mr Justice Humphreys stated: [12] “These are civil proceedings before the High Court and the use of closed material procedures under the 2013 Act is entirely permissible.”[5] A judge can issue CMPs on his/her own motion But, not in Legacy Cases. Two grounds make CMPs unlawful:

1. Under Sections 6(3) plus (4)(b)(i) of the JSA, Mr Justice Humphreys was not lawfully entitled to issue CMPs if there was a "possibility of a claim for public interest immunity in relation to the material". Mr Justice Humphreys did not make that consideration in his 2023 Judgment or give the required statutory notice to let the Families challenge him on this ground. I understand from lawyers representing other Families, that they had no idea that the CMPs were based on Mr Justice Humphreys own motions. No one knew until the Judge revealed it in his written response to my application to intervene in the proceedings.

2. Section 6(11) of the JSA clarifies that CMPs can be used only in ‘relevant civil proceedings’. The Act specifies that: “relevant civil proceedings” means any proceedings (other than proceedings in a criminal cause or matter)”. All Legacy Cases involve ‘criminal cause’ because murder is a crime. CMPs would complicate and undermine the integrity and safety of any future criminal proceedings.

‘Criminal cause or matters’ is a term that applies to all non-criminal cases (inquests and civil) wherein an ancillary outcome could lead to criminal accountability. A two part test[6] establishes if a civil case involves criminal cause; First) could the underlying civil proceedings afterwards place any person in jeopardy of criminal proceedings or accountability? Second) is an investigation and potential prosecution a possible and foreseeable outcome? Mr Justice Humphreys has already ruled out that any of the Respondents will be in jeopardy from future accountability after he delivers his decision in November. If murder and collusion in murder are prosecutable criminal acts then Mr Justice Humphreys has determined that none of the Respondents carried out, or colluded in, the 4 murders. On that basis, the scheduled Hearings in November are a sham if Mr Justice Humphreys has already ruled out the possibility of a verdict of collusion. His Honour has prematurely concluded that none of the 6 Respondents are “in jeopardy of criminal punishment by the proceedings. No such jeopardy exists as the direct effect of these civil actions.[7] Humphreys J has no evidential basis to conclude that none of the Respondents were involved in the 4 murders. Mr Justice Humphreys will put the Families through the trauma of stating how the Respondents colluded in the murders of their loved ones even though Humphreys J has prematurely decided the Respondents alleged collusion in the murders is off the table.

Paragraph 12 of Mr Justice Humphreys response to my application to intervene is misleading. His Honour erroneously states:

[12]… The judgment of the UK Supreme Court in Re McGuinness’s Application [2020] UKSC 6 and the interpretation of section 41(1)(a) of the Judicature (NI) Act 1978 is to the effect that the applicant must be put directly in jeopardy of criminal punishment by the proceedings. No such jeopardy exists as the direct effect of these civil actions.[8]

The ratio of the Supreme Court’s decision in the McGuinness case revolved around the proper avenue of appeal for civil cases that involve a criminal cause or matter, specifically, should an appeal from the Divisional Court go to the Appeal Court or directly to the Supreme Court? Section 41(1)(a) of the Judicature (NI) Act, as amended, reads:

41 Appeals to Supreme Court in other criminal matters

(1)Subject to the provisions of this section, an appeal shall lie to the Supreme Court, at the instance of the defendant or the prosecutor,—

(a )from any decision of the High Court in a criminal cause or matter;

Section 41 (6)(b) specifically includes civil appeal applications involving a criminal cause or matter. The Supreme Court did not rule that civil proceedings involving murder, or collusion in murder, do not involve criminal cause or matters. Humphreys J’s definitive statement “No such jeopardy exists as the direct effect of these civil actions.” improperly absolves the Respondents, including the 3 notorious Loyalists of the allegations that they carried out, or, colluded in the 4 murders of the deceased.

The unlawful application of Section 6 also means that Section 6(9) has also been unlawfully applied. Section 6(9) provides for independent Barristers with security vetting to act as government instructed lawyers called Special Advocates. They are tasked to liaise between the Families and the government’s full-time lawyers based within the Government’s Legal Department. As Special Advocates they are supposed to act in the interests of the excluded Families but they did not. Mr Gregory Berry KC, and Mr Joseph Kennedy, did not advise Humphreys J that their appointments in these legacy cases were unlawful under the Justice and Security Act.

Further, Mr Justice Humphreys 2023 Judgement reveals that Mr Berry KC and Mr Kennedy were not treated much better than the excluded Families. They were also excluded from seeing withheld evidence. Humphreys J did not order all the withheld evidence to be given to Mr Berry and Mr Kennedy (had the law been properly applied). At paragraph 18 of his Judgment, Humphreys J acknowledges that the Special Advocates did not examine evidence “they expected to see”. At paragraph 21, Humphreys J indicates the SAs were also denied access to an “unnamed but better informed witness”. At paragraph 23, His Honour concluded they could cross-examine the “unnamed but better informed witness”, during the November 2024 Hearings about the “missing or unavailable documentation”.[9] As an experienced Jurist, Humphreys J knows any cross-examination of a secret witness without advance access to relevant evidence would have little meaningful probative value because the witness’ testimony is effectively unchallengeable. Mr Justice Humphreys’ denial of access to evidence and an important secret witness only adds to his already unfair and unjust treatment of the Families’ rights to a fair trial.

On 7th September 2019, Mr Justice Maguire directed that three cases, Frizzell, Dillon and McKearney should progress as the Vanguard cases separate from the approximate 50 cases known as the mid-Ulster series of murder cases.[10] This meant that the State parties only had to provide disclosure in the Vanguard cases and not the non-Vanguard cases. The reasoning was for efficiency given the number of cases in the group. However, the Vanguard parties were to share any evidence with the non-Vanguard Families because it was recognized that the same evidence of collusion might be common throughout all 50 cases. Undermining the Frizzell and Lundy civil actions with unlawful CMP declarations will negatively impact on the rest of the mid-Ulster cases - and other unrelated Legacy Cases. Hence, KRW Law assertion that the outcome “will therefore impact scores, if not hundreds of cases”[11]

At paragraph 14 of Mr Justice Humphreys written response to my application to intervene, His Honour states: “At the trial in November 2024, the article 6 rights of the plaintiffs will be fully preserved. There is, and will be, no injustice to the plaintiffs or to the relatives of the deceased.”[12] Mr Justice Humphreys has been blatantly disregarding the Families Article 6 Convention rights all along. All Legacy Cases not unfairly discontinued by the Legacy Act are also in peril from the strategic and consequential outcome in the Frizzell and Lundy Cases this coming November. A verdict of collusion will be removed as a possible outcome in any Legacy Cases thereafter.

Mr Justice Humphreys’ unlawful declarations should be revoked. Rule 126, Order 27(1), of the Rules of the Court of Judicature (Northern Ireland) 1980, and Section 7 (2) of the Justice and Security Act 2013, provide the Court the mechanism to revoke CMP certificates “in the interests of the fair and effective administration of justice in the proceedings”. The unfolding injustices to the Frizzell, Lundy, Rennie and Duffy Families means it is of utmost public importance that the Court revoke the unlawful CMP declarations. The public interest is even greater because the unlawful declarations will adversely affect ‘scores or hundreds’ of other controversial legacy murder cases.

Mr Justice Humphreys should recuse himself.

Video Presentation – excuse my bad presentation

[1] Judgment Refusing Application To Intervene, 31st July 2024, also para. 13.

[2] Open Judgment On Closed Material Procedure Applications [2023] NIKB 97.

[3] Re Gribben [2017] NICA 16, citing Weatherup J at paragraph 42.

[4] KRW Law Press Release: Hearing Listed To Determine State Liability For 1988 Loyalist Weapons Importation | KRW Law-LLP - Human Rights Lawyers

[5] Judgment Refusing Application To Intervene, 31st July 2024, also para. 13.

[6] Amand v Secretary of State for the Home Department [1943] A.C. 147 (1942), p.156.

[7] Judgment Refusing Application To Intervene, 31st July 2024, also para. 13.

[8] Judgment Refusing Application To Intervene, 31st July 2024, also para. 13.

[9] Open Judgment On Closed Material Procedure Applications [2023] NIKB 97.

[10] Patrick Frizzell v PSNI [2019] NIQB 90, para. 2.

[11] KRW Law Press Release: Hearing Listed To Determine State Liability For 1988 Loyalist Weapons Importation | KRW Law-LLP - Human Rights Lawyers.

[12] Judgment Refusing Application To Intervene, 31st July 2024, also para. 13.

⏩ 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.