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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2024] CSIH 8
P985/23
Lord Justice Clerk
Lord Matthews
Lord Beckett
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in the Reclaiming Motion
by
THE PRESIDING CORONER OF NORTHERN IRELAND
Petitioner & Respondent:
against
SOLDIER F
Respondent & Reclaimer:
Petitioner & Respondent: M Ross, KC; D Welsh (Balfour+Manson LLP)
Respondent & Reclaimer: D Findlay, KC; B Ross (Burnett Christie Knowles McCourts)
____________________
24 April 2024
Introduction
[1]
For the purpose of this opinion we will continue to refer to the parties using the
terminology of the petition, as applied in the Outer House. The respondent, known by his
cipher Soldier F, reclaims (appeals) the Lord Ordinary's interlocutor of 26 February 2024, in
which she ordered that he be imprisoned for 6 months for contempt of court. The
2
respondent was found to be in contempt of court on 9 February 2024 for failing to comply
with a subpoena issued by the High Court of Northern Ireland. The finding of contempt is
not challenged. Rather, the respondent contends that the Lord Ordinary erred in imposing a
custodial penalty, which was excessive in the circumstances of the case.
Background
[2]
The background to the case is set out at length in the Lord Ordinary's opinion (see
[2024] CSOH 11). What follows is a brief summary of the facts insofar as relevant to the
issues that arise in this reclaiming motion.
[3]
The petitioner is the Presiding Coroner of Northern Ireland, who led an inquest into
the deaths of three Provisional IRA members who were killed during military operations in
Coagh, County Tyrone in June 1991 when British soldiers opened fire on their vehicle. The
respondent was part of a group of soldiers known as "the arrest group" in the inquest,
whose identities are protected by Public Interest Immunity Certificates.
[4]
On 5 September 2022 the respondent applied to be excused from giving oral evidence
at the inquest on medical grounds. On 10 November he submitted a witness statement, after
which his application ultimately came to be one for special measures. He asked that any
issues arising from his statement be dealt with only by way of written questions and
answers. The petitioner noted that the respondent was an important witness whose
evidence was directly relevant to a number of issues for determination at the inquest.
Having heard evidence, including medical and psychiatric evidence, he refused the
application for written evidence only. He ruled that the respondent should give oral
evidence, albeit subject to various special measures including conditions of anonymity, use
of a live link from outside the jurisdiction and screening from public view.
3
[5]
On 22 June 2023 the petitioner received a further application by the respondent
seeking to excuse him from giving evidence to the inquest altogether. That application was
refused. The petitioner was scathing about the evidence of the medical experts, who had
failed to reflect on the special measures which were in place, and had entirely failed to
grapple with the extent to which these might mitigate any adverse effect of giving evidence.
The petitioner was satisfied that the correct balance could be struck by the respondent
giving evidence orally with the benefit of the special measures outlined.
[6]
Shortly before the respondent was due to give evidence to the inquest on 29 June
2023, his solicitor wrote to the solicitor to the Coroner Service and advised that he would not
be attending. On 30 June 2023 a subpoena ad testificandum was issued by the High Court of
Northern Ireland requiring the respondent to appear at the inquest on 31 July. The
respondent's representatives again communicated his intention not to comply with the
subpoena. An application to have the subpoena set aside, relying on his mental health
issues, was heard and dismissed on 28 July. The respondent did not appeal. His solicitor
then wrote to the solicitor to the Coroner Service advising that he would not attend to give
evidence.
[7]
The petitioner applied to the High Court of Northern Ireland seeking transmission of
a certificate of default, advising of the respondent's failure to appear at the inquest on
31 July 2023, to the Court of Session in terms of section 67(5) of the Judicature (Northern
Ireland) Act 1978.
[8]
The petitioner thereafter raised a petition and complaint in the Court of Session,
requesting that the court
"proceed against and punish Soldier F in like manner as if that
person had neglected or refused to appear in obedience to process issued" by the Court of
Session.
4
[9]
The petitioner has issued his provisional findings that the deceased were shot by
Soldiers B and G, but that the use of lethal force was justified as the soldiers had an honest
belief that it was necessary in order to prevent loss of life. Although he concluded that there
was no real prospect of the respondent giving evidence the petitioner has afforded him an
opportunity up until 30 April to give evidence.
Proceedings before the Court of Session
[10]
After sundry proceedings in which the petition was found to be competent and the
petitioner to have title and interest, the Lord Ordinary found the respondent to be in
contempt of court, a finding which, as we have noted, is not challenged.
[11]
The Lord Ordinary heard senior counsel for the respondent on mitigation on
19 February. The details are recorded in the Lord Ordinary's opinion of 26 February 2024,
and need not be repeated in detail. Essentially he relied on the respondent's distinguished
and highly decorated military service, the mental health issues from which he suffered as a
result of past deployments, and factors which were said to mitigate the otherwise serious
character of the contempt. The Lord Ordinary ordered that the respondent be imprisoned
for 6 months. She made practical arrangements for the respondent's reception into custody,
including a period of grace within which to hand himself in. The reclaiming period was
marked in the interim and the operation of the warrant suspended in the meantime.
The reclaiming motion
[12]
The crux of the respondent's position is that the sentence imposed was excessive,
that a non-custodial disposal was sufficient and appropriate in the circumstances, and that
the respondent is in a position to pay a financial penalty. These arguments proceed on two
grounds.
5
1.
The Lord Ordinary failed to recognise or attach appropriate weight to the
respondent's mental health issues. He suffered from PTSD and depressive illness, which
were a direct consequence of his military experiences. He rarely left the house due to fears
for his personal safety. Speaking about experiences in Northern Ireland triggered his
symptoms. The prospect of giving evidence at the inquest exacerbated his fears. The
Lord Ordinary failed to understand the direct relationship between the respondent's mental
health issues and his failure to comply with the subpoena, leading to the contempt. The
medical reports were relevant in assessing the respondent's culpability and the gravity of
the contempt, and did not, as the Lord Ordinary put it, merely reflect "his own subjective
view that he should not be required to give evidence" (para 23). The Lord Ordinary had
underestimated the impact on the respondent, if required to give evidence, as mere distress
(para 23). It was submitted that a recent medical report by Dr Gray vouched a deterioration
in his condition, meaning that he was medically unable to purge his contempt. It should
therefore have been attributed more than the "relatively little weight" given to it by the Lord
Ordinary (para 27).
It was also unclear whether the Lord Ordinary had attached any weight to the
respondent's endeavours to co-operate with the inquest. The coroner had been able to
conclude the inquest and the respondent's failure had no adverse impact on the conduct of
the inquest.
Given the medical evidence, the Lord Ordinary should have considered that a period
of imprisonment would have a significantly greater impact than for other prisoners. Special
arrangements to protect his identity would be required throughout, to avoid a serious risk of
harm, as the Lord Ordinary accepted. He would live in constant fear of its being revealed.
There was a risk of jigsaw identification. A less severe penalty was justified either due to
6
this greater impact or as a matter of generally expressed mercy in the individual
circumstances of the case (RC v HM Advocate 2020 SCCR 20, para 41). The penalty was also
excessive when compared with sentences imposed in more serious contempt cases with
significantly less compelling mitigating factors (HM Advocate v Murray 2021 SCCR 158).
There was a clear alternative to prison, in that he could meet a fine.
2.
The court could not pass a sentence which would bring with it an inevitable breach
of Articles 2 and 3 ECHR (Edwards v UK (2002) 35 EHRR 19; R v Hall [2013] 2 Cr App R (S)
identified and subjected to violent retribution or attack created such a risk. It was not clear
that a comprehensive risk assessment had been carried out to facilitate his reception into
custody. There would be significant practical difficulties in ensuring adequate protection of
his identity. In this regard several exceptional measures had been required during the court
proceedings, including excusal from attendance, reporting restrictions and the closure of the
court to both public and press. Enquiries should have been made prior to the sentence being
passed. Sentence should have been deferred for the prison authorities to (i) be put on notice,
and (ii) confirm that suitable arrangements could be made (RC v HM Advocate, paras 33-36).
The arrangements proposed in the interlocutor of a grace period and surrender to officers
with security clearance were insufficient.
The petitioner's position
[13]
The petitioner made no substantive submissions. Senior counsel observed that the
Lord Ordinary's decision was a discretionary one and that the sentence imposed lay within
the boundaries of her discretion.
7
Analysis
Ground 1
[14]
Mr Findlay sought to persuade us that the respondent's decision not to comply with
the subpoena had no adverse impact on the conduct of the inquest. We recognise that the
written evidence of the respondent was before the inquest and indeed taken into account by
the coroner (see paras 134, 135 and 332). However, had he given oral evidence it is likely
that he would have been asked further questions relating to the planning of the operation,
the circumstances on the ground, and the evidence of other witnesses including other
servicemen, especially that of Soldier M referred to within the inquest report. The mere fact
that his written evidence was taken into account in a limited way does not justify the
inference that there was no impact on the conduct of the inquest. On the contrary, the
findings confirm the comments of the coroner at the outset that the respondent was an
important witness whose evidence was, and remains, directly relevant to a number of issues
for determination at the inquest.
[15]
In considering the weight to be given to the medical reports placed before the
Lord Ordinary it is important to identify the matters which were relevant to consideration of
the issues properly before her and those which were not. The Lord Ordinary had heard
detailed submissions as to, and reached a concluded (and now unchallenged) view as to the
scope of the inquiry before her. She concluded, rightly, that the issue whether the
respondent was fit to give evidence at the time the subpoena was issued, or when the
application to set it aside was dismissed, had been conclusively determined as a matter of
fact in the proceedings in Northern Ireland. The decision had been made that his condition
would not prevent him from being able to give oral evidence, subject to detailed special
measures being put in place. The Lord Ordinary had to proceed on the basis that these were
8
valid decisions in law which were not open for reconsideration by her. Her decisions that
averments on these issues were irrelevant, that inquiry thereanent should not be permitted
and would be inconsistent with the respect which this court owes to orders of courts of
competent jurisdiction in other parts of the United Kingdom were thus not only entirely
appropriate, they had consequences for the extent to which the medical reports relied on in
submissions as to fitness to appear remained relevant. The Lord Ordinary required to
proceed on the basis that the respondent had been fit to give evidence. She recognised that
the reports remained relevant in indicating the condition or conditions from which the
respondent suffered, and that they would be relevant in mitigation. The issue of a
deterioration which prevented the contempt being purged might also be relevant.
[16]
This provides the context for the Lord Ordinary's analysis of the relevance of the
various reports before her.
[17]
Dr Gray's report was relied on to suggest that there has been further deterioration of
the respondent's condition, and it is true that there is reference to the flashbacks intensifying
and a worsening of anger and irritability, but it is equally clear that the underlying premise
of Dr Gray's report is that his condition has all along rendered him unfit to give evidence,
and that this remains the case. It is not therefore evidence that even if fit at the time of the
subpoena he no longer is, and that he could not purge his contempt. The underlying
premise is thus one upon which the Lord Ordinary was unable to proceed. Her comment
that she could attach "relatively little weight" to the report is clearly made in the context of
the submission that he was medically unable to purge his contempt. The comment has to be
viewed in the light of the respondent's submission in his plea-in-mitigation that he had not
complied with a lawful order because he followed medical advice, thus seeking to
undermine the conclusions as to fitness already made. Again, that is not something which
9
the Lord Ordinary could accept, nor can we to the extent that this was repeated in
submissions in this reclaiming motion. The Lord Ordinary proceeded (para 23) on the basis
that:
"[T]he respondent suffered from post-traumatic stress disorder and other mental
health problems, and that he also had physical health problems. I accepted that he
had experienced traumatic incidents in the course of his service that were of a
significant and distressing nature".
[18]
The real question in all of this is whether the Lord Ordinary gave sufficient weight in
mitigation to the serious and disabling mental condition from which the respondent suffers,
and the other factors relied on in mitigation, such as his military service, his good character,
his attempts to co-operate with the inquest and so on.
[19]
It seems clear that there was indeed a direct relationship between the significant
mental health difficulties from which the respondent suffers and the circumstances which
led to the contempt of court. His condition has been consistently diagnosed as PTSD, severe
depression and anxiety, characterised inter alia by regular and intrusive flashbacks and
nightmares of a highly distressing nature, hypervigilance against potential sources of danger
(he refers to sitting in an alcove at home, where he has a clear view of the street), an inability
to socialise and living a reclusive lifestyle, in constant fear of reprisals. The Lord Ordinary
of course had to proceed on the basis that the special measures which could be put in place
were such as could mitigate the risk to the respondent from giving oral evidence, and that
he could not be regarded as unfit to give evidence in person subject to these special
measures. However, it is clear that his own assessment, and his apprehension of the
potential exacerbation of his symptoms from having to give evidence in person, fed into his
decision not to comply with the subpoena. Thus whilst it was a deliberate decision, it was
made according to a subjective assessment by someone undoubtedly suffering from a
10
serious and disabling illness caused by his military service, and in circumstances where he
had made attempts to find another means of co-operating with the inquest. Whilst he was
not entitled to decline to comply with the subpoena, his reasons for deciding not to do so,
although deliberate, were influenced by his apprehension of his condition and not by an
intention to undermine the proceedings, or to refuse entirely to engage. Of course, he was
not entitled to seek to impose terms for his involvement, but there are aspects of his
reasoning which mitigate what is otherwise a very serious contempt. This was not, for
example, the calculated and deliberate challenge to the authority of the court, intentionally
designed to circumvent both the reporting restrictions imposed and normal journalistic
conventions, which characterised the decision in Murray.
[20]
It is not clear that these were factors which were adequately taken into account by
the Lord Ordinary. It was something of a disservice to the respondent to suggest that he
would merely be "distressed" by giving evidence. Although she refers to his subjective
view that he should not give evidence, she appears to have given this little, if any, weight as
a mitigatory factor. At para 28 she refers to his "wilful failure ... to give evidence", which
suggests that she has not taken account of the fact that he did indeed supply some evidence
to the inquest.
[21]
The remaining question is whether the Lord Ordinary adequately took into account
the possibility that the effect of imprisonment might be more significant on someone in the
position of the respondent, than on another without his medical condition, (R v Bernard
[1997] 1 Cr App R (S) 135; RC v HM Advocate). It is not apparent that this was the subject
of any submission to the Lord Ordinary, which no doubt explains why it did not feature in
her reasoning. In RC v HMA the court, in a criminal context, recognised that in selecting a
custodial penalty, and deciding on its length, the court should recognise that in some cases
11
the impact upon the individual may be significantly greater than on a prisoner without the
relevant disability, which may justify the imposition of a shorter period of imprisonment
than might otherwise have been selected. The effect of a disability or condition will not
always have this result, and in most cases of depression, anxiety and PTSD will not do so.
However there are features of the respondent's illness, which are directly linked with his
military service, which give rise to the real possibility that a period of imprisonment would
be more punitive for him than for others: specifically these are the flashbacks and
nightmares; his hypervigilance; and his fear of reprisals consequent upon his service in
Northern Ireland. On their own these might have little effect but they are relevant factors,
particularly in light of the broader mitigation.
[22]
We do accept the submission from Mr Findlay that it is as relevant in a case such as
this as in a criminal case to ask whether a custodial sentence is the only reasonable means of
marking the behaviour in question, recognising that in this type of case the only options are
imprisonment, fine or no action. In most cases of contempt the court will clearly treat the
possibility of imprisonment as a primary option, and whether it is one which must follow
will generally be determined according to whether there is any mitigation and the extent
thereof.
[23]
In this case, there is substantial mitigation in the form of the respondent's hitherto
good character, his distinguished and decorated military service, the fact that his mental
health difficulties appear to have resulted from that service, the direct relationship between
his mental health difficulties and the contempt of court, his original willingness, albeit
limited, to engage with the inquest via special measures and the effect on him of
imprisonment being potentially greater than the norm. Taking these factors into account,
and comparing the respondent's case with other cases of contempt such as Murray, a non-
12
custodial penalty was appropriate. We were advised by Mr Findlay that the respondent's
financial circumstances had not changed from those which were put before the Lord
Ordinary. We will allow the reclaiming motion, recall the Lord Ordinary's interlocutor of
26 February 2024 and, of new, impose a fine of £5,000 in respect of the contempt of court.
We will put the case out by order to discuss arrangements for payment.
Ground 2
[24]
In these circumstances, ground two does not arise for consideration. Had it done so
we would not have been able to conclude that the circumstances met the required threshold
for such a ground to succeed. The overarching approach in respect of the principle
underlying this ground of appeal is that the court is entitled to proceed on the basis that the
prison authorities will comply with their obligations under the Convention. While there
would doubtless have been a number of practical difficulties, there is no reason for us to
conclude that they would not have been overcome.
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