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Showing posts with label Closed Material Procedure. Show all posts
Showing posts with label Closed Material Procedure. Show all posts
Christy Walsh ✍ On 25th November 2024, the Families of Brian Frizzell, Alan Lundy, Katrina Rennie, and Eileen Duffy filed into the Royal Courts of Justice in Belfast hoping for truth, accountability, and justice — only to be asked to leave again, because the proceedings were to be held in secret from them. 

What they got instead was a heavily redacted process, one riddled with secrecy, concealment, and judicial maneuvering. The trial is now over. The judge, Mr Justice Humphreys, has reserved his judgment. This case wasn’t lost at trial, it was lost when the first unlawful CMP was issued without objection. This was, in substance, a mistrial — a process so fundamentally compromised at the structural level that any judgment it produces will be tainted by secrecy and procedural distortion.

The Frizzell and Lundy Families are not alone. Their cases are part of the wider Mid-Ulster series of legacy proceedings, involving allegations that the British State helped Loyalists to import weapons used in over 70 murders. These cases represent a critical test of whether the State will ever be held accountable for collusion in sectarian killings.

At the heart of the case is an allegation that UK authorities allowed, enabled and assisted Loyalists to obtain and distribute weapons among Loyalist murder gangs. But the legal process designed to uncover the truth has instead ensured it remains buried.

Closed Material Procedures (CMPs) let important relevant evidence of collusion be hidden from the Families.  CMPs were introduced under the Justice and Security Act 2013 to protect national security. But under section 6(11) of that Act, CMPs are expressly barred in cases involving a “criminal cause or matter.” The Frizzell and Lundy cases are civil in form, but fundamentally criminal in nature — allegations of murder, conspiracy, and collusion. Despite this, CMPs were unlawfully used to withhold key evidence from the Families.

After I tried to warn the judge that he had made a mistake, the Judge responded on 31st July 2024, declaring he was not. The Judge revealed, [at para.3] that he had made the CMP declarations on his own motions. Even that was highly irregular, no state agency, the police, army or government department applied for the CMPs. Relevant evidence of collusion was otherwise available to the Families but for the Judge's improper obstruction.

The grounds for mistrial first occurred when the CMP declarations were issued by the judge on his own motion, and without:

  • Proper adversarial notice
  • Consideration of the alternative of Public Interest Immunity (PII)
  • A legitimate finding that the proceedings did not involve a criminal cause or matter

If the CMPs were not lawfully invoked, then the apportionment of Special Advocates was defective. Further, the Special Advocates assigned to represent the Families in the secret trial had been denied access to important documents and to a key unnamed witness. The judge’s assurance he would preserve the Families' Article 6 rights [Para. 14] was legal fiction. There has been no equality of arms. There was no meaningful adversarial testing. There was only choreography. The Secret Trial was not a fair hearing. It was a managed process designed to neutralise legal exposure.

Because Mr Justice Humphreys disregarded section 6(11) of the JSA, he now sits on a legal powder keg. Nine months have passed and the judge should have birthed a judgment by now. But whatever shape that takes, it should be a stillbirth. But whatever he decides, the legal legitimacy of the process is already compromised.

The trial of Frizzell and Lundy was procedurally corrupted before it even began. It should never have moved forward under CMP restrictions. The Families should never have been denied access to evidence of collusion that goes to the heart of their cases.

This isn’t justice. It isn’t even a flawed hearing. It is a mistrial — and everyone inside the secrecy courtroom knew it. The Families wait for a an inherently defective judgment. But the public should not wait to recognise what this was: a secret trial, a compromised process, and a verdict undermined and defective long before the the secret trial hearing started on the 25th November 2024.

If KRW Law are correct, the outcome could affect “scores, if not hundreds of” other victims and their Families.


⏩ 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.

Frizzell And Lundy 🪶 A Secret Mistrial - Before It Even Began

Christy Walsh ✍ I’ve taken the extraordinary step and lodged an application to the European Court of Human Rights (ECtHR) flagging the unlawful conduct of the Court in the Frizzell and Lundy Cases.  

Rule 39 of the ECtHR Rules of Court is only available in the most exceptional cases, often used to prevent someone being extradited to a country where they would be at risk of being tortured. But it is also available where the very administration of justice is at risk and the Convention rights of many people could collectively be violated. KRW Law estimate that the outcome of proceedings on 25th November: “will therefore impact scores, if not hundreds of cases”. Mr Justice Humphreys\ handling of the Frizzell and Lundy Cases satisfies the ‘imminent risk of irreparable harm’ requirements. Here is summary of the application:

The Applicant makes this request as ‘any other person concerned’ under Rule 39(1) of the Rules of Court. Those whose Convention rights are in imminent risk of irreparable harm after 25th November, 2024, are not Applicants in this application. But neither is the European Court of Human Rights being asked to make a finding against the United Kingdom on their behalf. The outcome of 25th-30th November Hearings, in Northern Ireland, will be on a scale that could pervert the course of justice for hundreds of Families, causing imminent risk of irreparable harm to their rights under Articles 2 (right to life); 3 (prohibition of torture and inhuman or degrading treatment); 6 (right to a fair trial); and 13 (right to an effective remedy) of the Convention. The Court is asked to exercise its discretionary power, on its own motion under Rule 39(1), and, as an interim measure, remind the United Kingdom to observe the Convention rights of the Plaintiffs by following its own national laws, specifically, sections 6, 7, and 9 of the Justice and Security Act 2013, and Order 126 of the Rules of the Court of Judicature (NI) 1980. Without lawful jurisdiction to do so, the domestic court has effectively afforded immunity to suspected killers as a necessary precursor for the removal of collusion as a probable verdict against the State for its involvement in the murders of its own citizens. 
However, the Applicant's article 6 Convention rights have been violated, and he has exhausted all necessary domestic remedies under Articles 34 (Individual applications) and 35 (Admissibility criteria) of the Convention for this application. 

I had the right to a proper response to the points of law I put before Mr Justice Humphreys in an application to intervene in the Frizzell and Lundy Cases. The Families also had the right to know the answers on the points of law. As intervener, I have no right to appeal or review of Humphreys J’s failure to answer the issues put before him. That meant I had exhausted all domestic remedies and I had a direct path to the ECtHR. The ECtHR cannot make findings on behalf of anyone who is not an applicant (the Families at risk of being victims of the perversion of justice on massive scale). But, under Rule 39(1), the ECtHR can act on its own motion (copied below) and caution the UK to be careful lest these cases apply to the ECtHR after the damage has been done if the NI Courts continue to act unlawfully toward Legacy Families. On 22nd July 2024, I made an application to intervene in the Frizzell and Lundy Cases. Closed Material Procedures are not lawfully available in Legacy Cases. Even though Mr Justice Humphreys arbitrarily refused my application, my attempted intervention resulted in His Honour disclosing 2 valuable pieces of information on 31st July 2024:

  1. Humphreys J revealed that he issued CMPs declarations on his own unsolicited motions. Despite not being lawfully entitled to do so, His Honour did not give the required statutory notice under Section 6(10) of the JSA and Rule 126, Order 21(1)(a) of the RsCJ 1980 (SF, p.15) so the Families could have challenged the impropriety.
  2. Collusion in murder is a criminal act that ought to result in prosecution. For example, Alan Oliver is considered a prolific serial killer of many innocent Nationalists and is not participating in the proceedings, as is his right, to protect himself from self-incrimination. The evidence of his involvment in at least 3 murders is overwhelming but Humphreys J, figuratively speaking, has his back. On 26th April 2021, default judgment was entered against Oliver for his part in the murders of; Brian Frizzell, Katrina Rennie and Eileen Duffy. Without lawful jurisdiction to do so, His Honour has prejudged the outcome of the Hearings by effectively giving Oliver and the other Defendants immunity from criminal liability in the future: “No such jeopardy exists as the direct effect of these civil actions.” Oliver has already been found liable for 3 murders in ‘these civil actions’ and Humphreys J has no lawful basis to guarantee he will not be prosecuted afterwards. And whatever word formulae Humphreys J comes up with could then affect hundreds of other Legacy Cases. Logically, a verdict of collusion has been removed as a possible outcome of the Hearings with probable intention that it will apply to hundreds of other Legacy Cases.

Without getting bogged down in the legal technicalities and complexities that about sums up my Rule 39 application to the ECtHR. The following is the text of Rule 39(1):

Rule 39(1). The Court may, in exceptional circumstances, whether at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted. Such measures, applicable in cases of imminent risk of irreparable harm to a Convention right, which, on account of its nature, would not be susceptible to reparation, restoration or adequate compensation, may be adopted where necessary in the interests of the parties or the proper conduct of the proceedings. (emphasis added)

See.
 
⏩ 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.

Urgent 🪶 Hundreds Of Legacy Families Could Be Cheated Out Of Justice

Christy Walsh ✍ Open Letter To The Pat Finucane Centre And Relatives For Justice.🪶

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. 

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:

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.  

  1. KRW Law Press Release: Hearing Listed To Determine State Liability For 1988 Loyalist Weapons Importation | KRW Law-LLP - Human Rights Lawyers.
  2. Humphreys J’s Judgment on Frizzell Intervention Application. 
  3. The Pensive Quill, 12th October 2024. 
  4. 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.

Collusion 🪶 Time Is Running Out

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.

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

Law Society Gazette ✒ Written by Paul Rogerson 
and Charlie Molone. Recommended by Christy Walsh.

The MoJ has been accused of dragging its feet over implementing the Ouseley recommendations on closed material procedure. And its belated response has done little to pacify alienated special advocates.

It is doubly ironic that the government dropped its response to concerns about the UK’s controversial ‘secret justice’ system into a political vacuum. ‘Least said the better’ would seem to have been Whitehall’s default mode here. Remarkably (or perhaps not so remarkably), six years have elapsed since a statutory review was first scheduled to begin.

The Ministry of Justice published its verdict on the 2022 Ouseley report on closed material procedure (CMP) on 29 May, the day before parliament dissolved. This came after a group of 25 practising special advocates, including 16 KCs, told the attorney general in April that they would not accept any new appointments while current defects with the system remain unaddressed. Special advocates are the security-cleared lawyers appointed to represent the interests of those excluded from viewing material rated national security-sensitive.

Under the Justice and Security Act 2013, a review of the CMP was required to commence ‘as soon as practicable’ after June 2018. 

Continue reading @ Law Society Gazette.

In Depth ❥ ‘Secret Justice’ Response Dropped Into Political Vacuum

Law Society Gazette ✒ Written by Charlie Moloney. Recommended by Christy Walsh.

The government has finally responded to concerns about the UK’s controversial 'secret justice' system - nearly six years after a statutory review was first scheduled to begin.

A response from the Ministry of Justice to the 2022 Ouseley report on closed material procedure (CMP) was published yesterday, ahead of the dissolution of parliament. The response comes after a group of 25 practising special advocates (SAs), including 16 KCs, told the attorney general last month that they would not accept any new appointments while current defects with the system remain unaddressed.

One area of controversy is resourcing for special advocates, encompassing staffing levels and training. Special advocates are the security-cleared lawyers appointed to represent the interests of those excluded from viewing material rated national security-sensitive.

Under the Justice and Security Act 2013, a review of the CMP was required to commence ‘as soon as practicable’ after June 2018. The review was not commissioned until February 2021, under former High Court judge Sir Duncan Ouseley. The judge completed the review in December 2021 and made 20 recommendations.

The MoJ said this week it will be taking forward seven of Ouseley’s recommendations. On resourcing, the MoJ will work with the Special Advocates’ Support Office (SASO) to ‘understand what would be required, in terms of resourcing, to deliver an increased training offer to SAs, to ensure that regular training is available to both new and existing SAs.


‘We will continue to engage with GLD [Government Legal Department] and SASO to ensure that the system has sufficient resilience.’





MoJ says it will take forward seven of Ouseley’s recommendations

Source: Jonathan Goldberg

The government also pledged to create an accessible, searchable, closed judgment summaries database, and a secure electronic full closed judgments database. The response adds: ‘It is important to note, however, that this is not a straightforward task and will take some time to establish. There are a number of security considerations that will need to be taken in to account when dealing with material of such a sensitive nature.’

Experienced special advocate Angus McCullough KC, of 1 Crown Office Row, has been highly critical of the government’s inertia in a series of blogposts. McCullough has been instructed as the special advocate in some of the most high-profile cases of recent years, including Shamima Begum’s appeal against deprivation of British citizenship.


Explaining his decision not to accept new appointments, he wrote last October: 'The structural unfairness of that system is one thing, but it is quite another for that unfairness to be heightened by a failure to provide proper resourcing and support for special advocates. That aggravated unfairness of CMPs is a price paid by the excluded parties, even though they may be unaware of it. The system depends on special advocates being able to discharge our role effectively.'

Continue reading @ Law Society Gazette.

'Secret Justice' Review ✤ MoJ's Long-Delayed Response 'Profoundly Disappointing'

UK Human Rights Blog ⚖  Written by Angus McCullough KC. Recommended by Christy Walsh.

A substantial majority of Special Advocates has felt driven to decline to accept new appointments to the role. This is a result of the Government’s continuing failure to provide proper support for the controversial system for secret evidence and closed proceedings, avoidably heightening the unfairness that is inherent in such cases. Special Advocates are the security-cleared lawyers appointed to represent the interests of those excluded from closed proceedings and they are central to the functioning of the system.

On 15 April 2024 a group of 25 practising Special Advocates, including 16 King’s Counsel, informed the Attorney General (who is also the Advocate General in Northern Ireland) that they had each formed the view that they could not, in good professional conscience, accept any new appointments as Special Advocates whilst current defects in the system remain unaddressed. This group consists of most practising Special Advocates in England and Wales, and Northern Ireland. They highlight the Government’s failure to provide the necessary support for the system to function effectively, including the continuing lack of any response to the recommendations of the Ouseley review published in November 2022 – let alone implementation of those recommendations.

Continue reading @ UKHRB.

Secret Justice ⚖ The System For Closed Proceedings Is In Melt-Down

Christy Walsh ✍ UK Intelligence and Security Forces colluded with Loyalists in the importation of weapons into Northern Ireland.

Some of these weapons were used to kill at least 132 people in what are collectively referred to as the mid-Ulster series of murder cases. The murders were carried out by Loyalist paramilitaries in collusion with British intelligence and security agencies. The Courts have directed that, of the 132 murders, 3 mid-Ulster cases should progress as the Vanguard cases: (these involve the murders of Mr Brian Frizzell, Mr Seamus Dillon and Messrs. Kevin and Jack McKearney). The Courts also directed the Vanguard legal representatives to co-operate and share evidence with the non-Vanguard Plaintiffs, as per Patrick Frizzell -v- PSNI [2019] NIQB 90.

This article will address the unlawful use of closed material procedures (CMPs) to conceal evidence of State collusion in the murders. The term ‘unlawful’ is used because the Justice and Security Act 2013 (JSA) specifically prohibits the use of CMPs in non-criminal cases where their outcome could result in criminal prosecutions. Secrecy surrounds the identity of who applied for 2 CMP certificates to withhold crucial evidence (material) from the Vanguard and non-Vanguard Plaintiffs in the murder cases. On 26th January 2023 the Court granted 2 CMP applications, RE: Frizzell (2017 No. 44663) and Lundy (2016 No. 27847). Mr Brian Frizzell was murdered by Loyalist on 28th March 1991 and Mr Alan Lundy was murdered on 1st May 1993.

CMPs are specifically intended to conceal the work of State intelligence and security agencies. The CMPs let the State conceal relevant evidence and exclude members of the public from all or part of legal proceedings in the alleged interest of national security. The exclusion also applies to the legal representatives of the excluded party. A government liaison lawyer, known as ‘Special Advocates (SA)’ is instructed to liaise with the excluded parties and their legal representatives to provide the ‘gist’ of information, only in so far as their instructing State client allows them to.

Criminal Cause in non-Criminal Proceedings

Both Section 6 of the JSA, and Rule 82.13(1)(b) of the Civil Procedure Rules (CPR), require that the evidence must “be damaging to the interests of national security”, and “The relevant person” must apply for the CMP. Paragraph 7 of the Court’s judgment does not identify who applied for both CMPs? CMP certificates are not available in all civil cases as per Section 6(11) of the JSA, “relevant civil proceedings means any proceedings (other than proceedings in a criminal cause or matter).” This means no Government Department; ie. Department of Justice (DoJ) or Ministry of Defence (MoD); or state agencies - Prosecution or Police Services, could apply for CMPs in the mid-Ulster series of murder cases because they all involve ‘criminal cause’ allegations of collusion in murder. If the State cannot apply for CMPs in non-criminal cases involving criminal cause, then who can?

A ‘criminal cause or matter’ includes non-criminal proceedings, where an ancillary outcome can lead to criminal proceedings. ‘Criminal cause or matters’ are determined by a 2 part test[1]; first, could the underlying civil proceedings afterwards place an individual in jeopardy of criminal proceedings or punishment? Second, is an investigation and potential prosecution a possible and foreseeable outcome of the non-criminal proceedings? Someone must be in possible and foreseeable jeopardy[2] of criminal investigation and prosecution as a direct outcome of the non-criminal proceedings. In the mid-Ulster cases it is alleged that members of the security forces colluded in numerous murders carried out by Loyalists, hence, criminal proceedings could reasonably follow the non-criminal proceedings. Section 6(11) of the JSA would make any CMPs issued to deny the mid-Ulster Plaintiffs access to crucial evidence of collusion unlawful.

Note: The Court’s recent Judgment in the inquest into the Loyalist murder of Mr Sean Brown on 19th May 1997 relates to non-criminal proceedings that could result in criminal proceedings. In Mr Brown’s case, the MoD, the Security Service and PSNI made applications to withhold evidence “which would otherwise fall to be disclosed during the inquest on the grounds of public interest immunity” (PII)[3]. They applied for PIIs and not CMPs. There is an important distinction why PIIs are different; evidence not disclosed to Mr Brown’s representatives in the non-criminal proceedings can also not be used by the State in those same proceedings. 

The use of PIIs in non-criminal proceedings do not undermine the integrity of any ancillary criminal proceedings that might result from Mr Brown’s inquest if there is evidence the security forces colluded with his killers. Whereas, the withheld evidence in CMP non-criminal proceedings is used by the State without the excluded party, or their lawyers, knowing what that evidence is. The use of CMPs would undermine the integrity of ancillary criminal proceedings and the proper administration of justice where PIIs do not. The State and its agencies show awareness that they could only lawfully apply for PIIs in Mr Brown non-criminal proceedings. In fact, the State has applied for PIIs in another mid-Ulster case because there is the potential of criminal proceedings following the outcome. But who applied for the 2 CMPs in the mid-Ulster murder cases if the State did not?

On 26th January 2023, Mr Justice Humphries delivered a closed judgment on the foot of an application for 2 CMPs: Re: Frizzell (2016 No. 44663) and Lundy (2016 No. 37847) (Appendix, page 37). The gateway to CMPs is through the JSA, Section 6, and Section 6(11)(d) defines ‘sensitive material’ as “material the disclosure of which would be damaging to the interests of national security.”. In the open Frizzell/Lundy Judgments[4] (9th Oct 2023) the Court does not identify who applied for the CMPs but only that it granted the requests (Paragraph 7). The CMPs give the appearance of a legitimate legal framework to withhold crucial evidence of state collusion in the mid-Ulster series of murder cases but that does not make them lawful. Once the CMPs were granted, the Court explains how the State agencies, and their 3 Loyalist agents[5], only 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” (Paragraph 9). But who applied for and obtained the original 2 CMP certificates referenced in paragraph 7? And why is their identity secret? The identity of the applicant of CMPs is not secret because it is the State or an agency of the state making the application in the interests of national security. But in the mid-Ulster cases it is secret without explanation or provision set out in the JSA.

The open Judgment does not mention the roles played by the Loyalist/State Agents, Alan Oliver; Anthony McNeill, and; Thomas Harper? Probably because it involves State collusion with them. The unlawful use of CMPs in the mid-Ulster cases means the Court, to satisfy the requirement of section 6(11)(d) of the JSA 2013, need only be persuaded to accept the rational that collusion with these men was an integral necessary evil in the interests of national security. That is, logically, the argument probably made in the closed proceedings the Plaintiffs and their lawyers were excluded from. The CMPs go directly to State collusion and are matters of criminal cause for which no CMP is lawfully available.

The unlawful use of CMPs means there is no way of knowing if the same closed material or named Loyalists are common throughout all 132 murder cases? Or if the secret evidence reveals more avenues, or individuals, used to arm, organize or direct the Loyalist killers responsible for the murders. The State or its agents cannot lawfully obtain CMPs in the mid-Ulster series of murder cases because they involve ‘criminal cause’ allegations of collusion in murder. Whose identity is being protected in paragraph 7 of the Judgment? Did that person apply for the CMPs to prevent the Plaintiffs from seeing crucial evidence in the murders of their loved ones?

References

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

[2] Re McGuinness No 1 [2020] UKSC 6, paras.42-45, 48-49, 93.

[3] Brown’s Application [2024] NI Coroner 18, 4th March 2024.

[4] https://www.judiciaryni.uk/judicial-decisions/2023-nikb-97.

[5] Alan Oliver; Anthony McNeill, and; Thomas Harper.

⏩ 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.

Is The Withholding Of Crucial Evidence In The Mid-Ulster Series Of Murder Cases Lawful?

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