Christy Walsh ✍This article is motivated in part by my reading of the Court of Appeal’s judgment in R v McConville and Wootton, back in 2014, which left a lasting impression on me.
The court openly stated (see paras 36 and 144-147) to this effect: “We don’t know what you did, but we know you did it.” That is not guilt beyond reasonable doubt. To my understanding, the two men never appealed that perverse reasoning but have pursued other issues of concern. The Court of Appeal’s conclusion, to my mind, screamed “unsafe conviction.” My own experiences, and cases like this, have shaped how I view the legal system’s handling of Legacy Cases, including the recent claim by Brigid Moss concerning the McGurk’s Bar Massacre.
For over fifty years, families bereaved in the conflict have sought answers and accountability. Yet too often, their legal actions are delayed or swept aside, not because their pain is less real, but because the law does not fit the unique wrongs of the Troubles. After years of oppression, draconian laws, and Diplock Courts, we are still trying to achieve justice while tied to a legal framework they hard‑wired into today’s system. While some judges have genuinely tried to grapple with controversial cases involving serious state abuse, they remain tied to that framework, maybe even inhibited by it. These structures, like the Victims’ Payments Board and the ICRIR, remain weighted in the State’s favour, making sure even new mechanisms carry old biases. Families and victims must revise their approach: reconsider what legal actions might realistically obtain justice, and what will not. Justice will not be freely given; it must be proactively pursued.
The following is a revision of Brigid Moss v Chief Constable of the PSNI & Others ([2025] NIMaster 6) is a stark reminder that new approaches and thinking are urgently needed if justice is to mean more than a closed courtroom door.
Search for Justice
On 4 December 1971, the UVF planted a bomb in McGurk’s Bar, North Belfast, killing fifteen people, including Edward Kane, the husband of Brigid Moss. In the aftermath, Army intelligence and government-linked outlets circulated a false story: that the IRA had caused the explosion themselves (an “own goal”). This narrative, though untrue, took hold in parts of the community, branding the victims with undeserved suspicion. Decades later, Brigid Moss brought a civil case, alleging this disinformation campaign inflicted lasting psychological harm, including complex PTSD.
Her chosen legal path, the tort of deceit, was understandable given the wrong she alleged, but it was a long shot. Not only did the strict legal elements pose obstacles, but success might have opened the floodgates to a wave of claims about state disinformation and propaganda during the Troubles. Much as in McConville and Wootton cases, the court acknowledged serious issues yet chose to close the door on a remedy.
When the Court Defends State Use of Deceit
I myself have pursued the tort of deceit. In my case, the court acknowledged that deceit had been used, but because it was deceit in the service of the State, I was denied any remedy. Even though I suffered its consequences, the Court of Appeal defended the State’s use of deceit. My exchange with Lord Justice Deeny lays it bare:
Evidently, the Judiciary consider State deceit as “lawful,” (acceptable) provided it is not directed at the victim in a way that causes them to act to their detriment. In Brigid Moss’s case, the Judge criticized her attempt to “shoehorn” her claim into the framework of deceit, arguing it was inapplicable because she technically did not act to her own detriment - the court acted to her detriment. The result is a deliberately evasive legal system: a system where judicial recognition of deceit, even by the State, is possible with no remedy for those harmed. This creates a situation akin to transferred deceit, where deceit can be openly acknowledged by the judiciary, yet no action is taken, leaving the victims without recourse. (Note: Making someone act to their detriment in tort of deceit means; causing that person to take an action that causes harm, loss, or a disadvantage to themselves because they were deliberately misled with that intention.)
Perverse contested issues like this will continue to arise for victims. They stem not only from a strict, formalistic reading of the law on deceit but also from the bias and deference ingrained into the legal framework itself, a framework in which the judiciary are expected to avoid confronting State deceit and disinformation campaigns, whether during the conflict or in post‑conflict legal proceedings. Until this bias and deference are dismantled, victims will continue to face the same perverse contests where deceit is admitted yet no remedy is allowed.
After years of oppression, draconian laws, and Diplock Courts, we are still trying to achieve justice while bound to a legal framework they hard‑wired into today’s system. The structures designed in the conflict era to secure convictions and protect the State have not simply vanished; they continue to shape how evidence is weighed, how inferences are drawn, and how difficult it is for victims to secure remedies. If justice for Troubles victims is to be more than symbolic, legal thinking must adapt. Cases like Brigid Moss’s suggest several paths forward, here are my suggestions:
Revive Misfeasance in Public Office
Unlike deceit, misfeasance in public office targets public officials who knowingly abuse their powers. Spreading deliberate disinformation to stigmatise victims squarely fits. Brigid Moss had originally pleaded misfeasance but abandoned it. Keeping it might have been her stronger ground. Here are some suggested areas and ways how misfeasance in public office might apply:
Develop Claims for Psychiatric Injury
Conclusion
Brigid Moss’s case failed not because her suffering was any less real, but because the law as it stands could not stretch to meet it. If we continue to rely on rigid, conflict era frameworks, victims will go on being told their cases are ‘unarguable’. Just as the McConville judgment revealed a system willing to uphold convictions despite admitting it did not know exactly what crime either man was guilty of, Moss’s case exposes a system that openly acknowledges State deceit yet denies any remedy. In the McConville appeals, the Court was willing to “fill in the gaps” to secure convictions; but in Moss’s case, the Courts refused to fill any gaps to do justice, not when the State and its agents are responsible.
While the Legacy Act is designed to shut down access to justice and shield British soldiers from accountability, it does nothing to remove the pain and loss, or the psychiatric injuries, endured by victims and their families. The wounds remain, even as the legal doors are deliberately closed. Nor will it be lost on the families that the State prevaricated and delayed without judicial sanction, only to run down the clock and then introduce its own legislation to avoid accountability.
Yet even under this restrictive regime, cracks remain. Courts in Northern Ireland have declared parts of the Act incompatible with the European Convention on Human Rights, and the Irish government has brought a challenge before the Strasbourg court. The proposed remedial order under the Human Rights Act could re open paths for inquests and civil claims if Parliament acts. Victims may also engage the ICRIR, though its immunity based framework offers little in the way of real accountability. Both the ICRIR and the Victims’ Payments Board, however, remain open to challenge where they fail to carry out their duties, display improper bias, or act in ways that actively help the State rather than the victims they are meant to serve. These avenues are narrow, contested, and uncertain, but they show the fight is not entirely over.
What is needed now is bold legal imagination: reviving misfeasance, expanding human rights arguments, and using judicial review to compel truth telling. Only then can families like Brigid Moss’s find sympathy and justice.
There is still a lingering reluctance among courts to confront state‑sponsored wrongdoing in legacy cases, and this cannot be explained solely by the constraints of legal doctrine; as Brigid Moss’s case shows, in contrast to McConville’s. This tendency is reinforced by the institutional memory of a judiciary that was, at times, complicit, having participated in, or failed to address, cover‑ups and injustices during the conflict. Without reform of these ingrained attitudes and assumptions, through judicial education and open institutional reflection, the judiciary will never fully emerge from the shadows of its own past.
Introduce a statutory cause of action that enables individuals to seek redress for psychological injury resulting from state misconduct. Enact legislation that explicitly strengthens individual rights by imposing clear duties of candour and truth-telling on public officials. Establish independent oversight bodies with effective powers of investigation and redress, specifically to address legacy matters where existing mechanisms, such as the ICRIR and Victims’ Payments Board, may lack sufficient independence from the State or from individuals or entities potentially implicated in historic abuses and are now investigating themselves or former colleagues.
For over fifty years, families bereaved in the conflict have sought answers and accountability. Yet too often, their legal actions are delayed or swept aside, not because their pain is less real, but because the law does not fit the unique wrongs of the Troubles. After years of oppression, draconian laws, and Diplock Courts, we are still trying to achieve justice while tied to a legal framework they hard‑wired into today’s system. While some judges have genuinely tried to grapple with controversial cases involving serious state abuse, they remain tied to that framework, maybe even inhibited by it. These structures, like the Victims’ Payments Board and the ICRIR, remain weighted in the State’s favour, making sure even new mechanisms carry old biases. Families and victims must revise their approach: reconsider what legal actions might realistically obtain justice, and what will not. Justice will not be freely given; it must be proactively pursued.
The following is a revision of Brigid Moss v Chief Constable of the PSNI & Others ([2025] NIMaster 6) is a stark reminder that new approaches and thinking are urgently needed if justice is to mean more than a closed courtroom door.
Search for Justice
On 4 December 1971, the UVF planted a bomb in McGurk’s Bar, North Belfast, killing fifteen people, including Edward Kane, the husband of Brigid Moss. In the aftermath, Army intelligence and government-linked outlets circulated a false story: that the IRA had caused the explosion themselves (an “own goal”). This narrative, though untrue, took hold in parts of the community, branding the victims with undeserved suspicion. Decades later, Brigid Moss brought a civil case, alleging this disinformation campaign inflicted lasting psychological harm, including complex PTSD.
Her chosen legal path, the tort of deceit, was understandable given the wrong she alleged, but it was a long shot. Not only did the strict legal elements pose obstacles, but success might have opened the floodgates to a wave of claims about state disinformation and propaganda during the Troubles. Much as in McConville and Wootton cases, the court acknowledged serious issues yet chose to close the door on a remedy.
When the Court Defends State Use of Deceit
I myself have pursued the tort of deceit. In my case, the court acknowledged that deceit had been used, but because it was deceit in the service of the State, I was denied any remedy. Even though I suffered its consequences, the Court of Appeal defended the State’s use of deceit. My exchange with Lord Justice Deeny lays it bare:
Deeny LJ: Well you didn’t act on it.
Mr Walsh: No I didn’t. But what I am saying is that I shouldn’t suffer the consequences because the court is prepared to take the hit.
Deeny LJ: I understand that on a human basis but I am just saying that it’s not the law, Mr Walsh, it doesn’t appear to be the law. Which is correctly stated there.
Evidently, the Judiciary consider State deceit as “lawful,” (acceptable) provided it is not directed at the victim in a way that causes them to act to their detriment. In Brigid Moss’s case, the Judge criticized her attempt to “shoehorn” her claim into the framework of deceit, arguing it was inapplicable because she technically did not act to her own detriment - the court acted to her detriment. The result is a deliberately evasive legal system: a system where judicial recognition of deceit, even by the State, is possible with no remedy for those harmed. This creates a situation akin to transferred deceit, where deceit can be openly acknowledged by the judiciary, yet no action is taken, leaving the victims without recourse. (Note: Making someone act to their detriment in tort of deceit means; causing that person to take an action that causes harm, loss, or a disadvantage to themselves because they were deliberately misled with that intention.)
Perverse contested issues like this will continue to arise for victims. They stem not only from a strict, formalistic reading of the law on deceit but also from the bias and deference ingrained into the legal framework itself, a framework in which the judiciary are expected to avoid confronting State deceit and disinformation campaigns, whether during the conflict or in post‑conflict legal proceedings. Until this bias and deference are dismantled, victims will continue to face the same perverse contests where deceit is admitted yet no remedy is allowed.
After years of oppression, draconian laws, and Diplock Courts, we are still trying to achieve justice while bound to a legal framework they hard‑wired into today’s system. The structures designed in the conflict era to secure convictions and protect the State have not simply vanished; they continue to shape how evidence is weighed, how inferences are drawn, and how difficult it is for victims to secure remedies. If justice for Troubles victims is to be more than symbolic, legal thinking must adapt. Cases like Brigid Moss’s suggest several paths forward, here are my suggestions:
Revive Misfeasance in Public Office
Unlike deceit, misfeasance in public office targets public officials who knowingly abuse their powers. Spreading deliberate disinformation to stigmatise victims squarely fits. Brigid Moss had originally pleaded misfeasance but abandoned it. Keeping it might have been her stronger ground. Here are some suggested areas and ways how misfeasance in public office might apply:
- If a police officer mishandles crucial evidence in a murder investigation, such as losing documents or failing to send forensic items for testing, it can lead to wrongful convictions or let the true culprit go free. The officer breached their legal duty to properly handle evidence, directly causing harm.
- Officials who knowingly spread false information about victims (as after the McGurk’s Bar bombing), a misfeasance claim could be made if it can be shown that the official(s) acted dishonestly or with reckless indifference to the truth, and that this behavior caused psychological injury or stigma.
- Make government ministers and senior security force personnel liable for any abuse of their authority or breach of their duties, causing harm. For example, during Bloody Sunday in 1972, senior British Army officers such as Lieutenant Colonel Derek Wilford, who disobeyed direct orders and sent troops into the Bogside area, bear responsibility for the actions that led to civilian deaths and injuries. If these officers knowingly or recklessly authorized operations that violated legal or ethical standards, causing wrongful harm, a claim for misfeasance in public office is theoretically available.
Develop Claims for Psychiatric Injury
- From my reading of the Judgment, psychiatric injury appears to have been the injury and not defamation. When a relative is murdered state disinformation is distressing and psychologically damaging … not a defamation.
- This approach recognises the lived experience of victims as a legal wrong. Brigid Moss’s case shows this clearly: the harm was not reputational defamation but the deep psychological trauma of being stigmatised by State disinformation as an aggravating feature to the murder of her husband.
Conclusion
Brigid Moss’s case failed not because her suffering was any less real, but because the law as it stands could not stretch to meet it. If we continue to rely on rigid, conflict era frameworks, victims will go on being told their cases are ‘unarguable’. Just as the McConville judgment revealed a system willing to uphold convictions despite admitting it did not know exactly what crime either man was guilty of, Moss’s case exposes a system that openly acknowledges State deceit yet denies any remedy. In the McConville appeals, the Court was willing to “fill in the gaps” to secure convictions; but in Moss’s case, the Courts refused to fill any gaps to do justice, not when the State and its agents are responsible.
While the Legacy Act is designed to shut down access to justice and shield British soldiers from accountability, it does nothing to remove the pain and loss, or the psychiatric injuries, endured by victims and their families. The wounds remain, even as the legal doors are deliberately closed. Nor will it be lost on the families that the State prevaricated and delayed without judicial sanction, only to run down the clock and then introduce its own legislation to avoid accountability.
Yet even under this restrictive regime, cracks remain. Courts in Northern Ireland have declared parts of the Act incompatible with the European Convention on Human Rights, and the Irish government has brought a challenge before the Strasbourg court. The proposed remedial order under the Human Rights Act could re open paths for inquests and civil claims if Parliament acts. Victims may also engage the ICRIR, though its immunity based framework offers little in the way of real accountability. Both the ICRIR and the Victims’ Payments Board, however, remain open to challenge where they fail to carry out their duties, display improper bias, or act in ways that actively help the State rather than the victims they are meant to serve. These avenues are narrow, contested, and uncertain, but they show the fight is not entirely over.
What is needed now is bold legal imagination: reviving misfeasance, expanding human rights arguments, and using judicial review to compel truth telling. Only then can families like Brigid Moss’s find sympathy and justice.
There is still a lingering reluctance among courts to confront state‑sponsored wrongdoing in legacy cases, and this cannot be explained solely by the constraints of legal doctrine; as Brigid Moss’s case shows, in contrast to McConville’s. This tendency is reinforced by the institutional memory of a judiciary that was, at times, complicit, having participated in, or failed to address, cover‑ups and injustices during the conflict. Without reform of these ingrained attitudes and assumptions, through judicial education and open institutional reflection, the judiciary will never fully emerge from the shadows of its own past.
Introduce a statutory cause of action that enables individuals to seek redress for psychological injury resulting from state misconduct. Enact legislation that explicitly strengthens individual rights by imposing clear duties of candour and truth-telling on public officials. Establish independent oversight bodies with effective powers of investigation and redress, specifically to address legacy matters where existing mechanisms, such as the ICRIR and Victims’ Payments Board, may lack sufficient independence from the State or from individuals or entities potentially implicated in historic abuses and are now investigating themselves or former colleagues.
⏩ 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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