CLONOE CORONER’S FINDINGS DISSECTED

Malone House Group Critique of Coroner’s findings

A Shorter version was published in the News Letter over two pages on 24 March 2025

The Facts

On 6 February 2025, Mr Justice Michael Humphreys, published his 59-page findings on the inquest into the 1992 deaths of Kevin Barry O'Donnell, Patrick Vincent, Peter Clancy and Sean O'Farrell at Clonoe, Co Tyrone.

The IRA shooting on the night of 16 February 1992 started at 10.40 p.m. with an attack by machine gun on Coalisland police station from the nearby chapel car park. The gunfire could clearly be heard, and green tracers, seen in the sky by the soldiers at Clonoe chapel car park a couple of miles away.

The lorry on which the machine gun was mounted proceeded from the RUC station towards that car park. A few minutes later, en route, further shots were discharged in a salute to Tony Doris at his nearby house. He had been killed at Coagh in June 1991, nine months earlier.

There were twelve soldiers in the Clonoe car park and at least ten IRA operatives, six of whom were not killed. Three of these escaped across the border and were not charged or extradited. Three others were either arrested on the spot or later. Four of the six were wounded. Two of the dead had dismounted from the lorry with their rifles and were shot on the ground but not at close range. That the machine gun’s safety lever was set in the ‘safe’ position and “was not in a ready state of firing” is an almost prejudicial statement by the coroner if unqualified by the obvious fact that the soldiers could not possibly have known it.

The Russian machine gun on the lorry’s tailgate was a DShK – a Degtyaryova-Shpagina Krupnokaliberny. The coroner uses the term “heavy machine gun” many times but never indicates that its fire was armour piercing. He frequently mentions soldiers’ bullets as being armour piercing. The three or possibly four Romanian rifles were AKMs - Avtomat Kalashnikova Modernizirovanny.

There was apparently a full moon. The weather was not mentioned in the coroner’s findings so one assumes it was dry. The soldiers had been hiding to one side of the chapel car park behind a straggly hedge since 7.40 p.m. Some five cars suspiciously came and went during the three hour wait. They were reckoned to be on dicking circuits.

The lorry arrived in the car park preceded by a blue car. This made four vehicles in all present, two of which managed to drive off. The shooting was over by 10.48 p.m., eight minutes after the first rounds were fired at the police station.

Soldier A was the leader of a sub-unit of the army’s Specialist Military Unit (SMU). All twelve soldiers opened fire. Four Soldiers B, C, D, and F are specified as persons who may have shot three of the deceased but it was judged unclear which. In one case only, a single Soldier (H) is identified as having shot a particular man dead although Soldier L is identified as having wounded the same man.

Eleven of the twelve soldiers who opened fire at the car park gave evidence to the inquest. One, Soldier H, absented himself and could not be located. [90] That soldier “had a bullet wound to the face” [167] whose friendly fire origin, the coroner implies, must have been recognised at the time as, at most, the IRA unit fired one round. In the findings, H is later stated, definitively, to have been “struck by a ricocheted bullet fired by one of his colleagues.” [239]

Some fifty paragraphs of the findings are devoted to modern evidence from ballistics and pathology experts designed largely to detect which soldier shot which person and how. They effectively confirmed that lethal force had been used and that the IRA unit had not engaged the soldiers. It was indeed shoot to kill, something permitted to the police in London.

There were twenty-one barristers at the inquest including nine silks. The Ministry of Defence (MoD) and the former soldiers had nine barristers between them. Their major line of defence seems to have been assertions of IRA firing in the car park which the coroner fiercely discounted. The next of kin of one of the dead, Sean O’Farrell, was not represented.

Doug Beattie MLA, an army veteran, on Radio Ulster’s The Nolan Show on 7 February did explain, forcefully, “The military are a blunt instrument. They are not taught to shoot to wound. They are taught to aim at the visible mass and shoot until the threat is eliminated. Once the decision to engage was taken, that was it.” Such realities on how armies operate were absent from the findings.

The same judge, Michael Humphreys, presided over the Coagh inquest whose findings were published in April 2024. It related to the deaths of three IRA men at 7.30 a.m. on 3 June 1991 in very similar circumstances to Clonoe. However the coroner’s verdict then was that, “In each case, 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. The use of force by the soldiers was, in the circumstances they believed them to be, reasonable. The operation was not planned and controlled in such a way as to minimise to the greatest extent possible the need for recourse to lethal force.”

This planning failure was hinged to his assessment that an arrest was not really possible or seriously contemplated and thus lethal force was inevitable in order to protect an army decoy. As a result, the coroner passed his planning failure finding to the PPS later that month for consideration of charges against army commanders and RUC Special Branch. No prosecution decision has yet been made public.

The coroner did give context to the earlier event when he wrote, “In order to understand the background to the events leading up to the deaths at Coagh on 3 June 1991, it was necessary for the inquest to consider the threat posed by terrorist organisations at that time and how this was addressed by the security forces” After listing some thirty killings involving the IRA’s East Tyrone Brigade, he concluded, “This bloody recent history provides the backdrop to the events at Coagh.” [21-22] No such context appeared in his Clonoe findings. Some have described East Tyrone at this time as a warzone.

On Coagh, the judge also stated, “The fact that several of the soldiers were labouring under a misapprehension that they were engaged in a ‘fire fight’ does not detract from the conclusion that, subjectively, they believed an immediate threat to life existed but rather reinforces it.” [313]

There are cases of soldiers being killed in similar circumstances where it is likely insufficient fire power was brought to play early. The coroner did not consider a possibility of military casualties at Clonoe should arrests of the ten men have been attempted when the armed lorry appeared.

In one of two examples, Lance Corporal David Jones was shot dead on 16 March 1978 after he and another soldier challenged two suspects in the dark during a stake out. Francis Hughes was convicted of the murder. He, the second hunger striker to die, was injured in the exchange.

Sergeant Alistair Slater of the SAS was shot dead on 2 December 1984 in Kesh on the Fermanagh border by an Irish Defence Forces deserter. The IRA unit had been intercepted in a stake out after laying a massive bomb to kill police. It failed to explode when triggered. Slater was then killed in a fire fight while a Maze escaper drowned trying to get back across the border. Three others got clean away.

The Law

The first 26 paragraphs (of 344) in the coroner’s findings concern legal principles around inquests and the European Convention on Human Rights (ECHR). What constitutes permissible or defensible lethal force was covered although the precedent cases reveal there is a fine line on the issue. Indeed some judgments are at odds with others. The findings opened with an ominous statement: “All the Properly Interested Parties, including the Ministry of Defence (MOD) and the Former Military Witnesses agreed that the procedural requirements of article 2 of the European Convention on Human Rights applied to the inquest.” [2]

The next key paragraph spoke of how Article 2 imposes three discrete duties on states, the third, the procedural one, being: “An investigative duty to inquire into the circumstances of death…where there is reason to believe there may have been a breach of the state’s substantive article 2 obligations.” [5] Oddly, the word ‘substantive’ never appears again and goes unremarked upon even though the verdict was a substantive breach.

This meant that the MoD lawyers conceded at the outset that the scope of the inquest would be governed by Article 2-procedural. This is a contested area subject to changing Supreme Court decisions and an expansive view of what form and level of investigation a state must undertake after a death. The Northern Ireland judiciary has essentially defined a Troubles inquest as a public inquiry using Article 2-procedural even though the Human Rights Act putting the ECHR into domestic law did not commence until 2000.

However, because of Lord Kerr’s Supreme Court judgment in Finucane, deaths after 1 October 1988 are within the Act’s ambit. Also Judge Humphreys previously stated in 2024: in Bradley, “Whether or not article 2 applies may have an impact on some or all of these questions. However, it may be observed that the difference might not be all that pronounced.”

It was also agreed “by all” in relation to how the deceased came by their deaths (the key public inquiry element of an inquest nowadays) to scope thirteen aspects, all but one of which involved the security forces. The exception was “the circumstances in which the deceased came to be at location”. This was hardly touched on nor was the IRA’s planning and purpose which is a serious and bizarre omission.

No witnesses were called to explain the recent history of conflict in the area nor of the psychology of those involved. That the youthful IRA unit was behaving in a pumped-up manner, as illustrated by the Doris salute, and the stated fact it was to be a “show of strength”, ultimately involving rifles being waved in the air at the car park, went without analysis by the coroner. The agreed scope also prevented any assessment of whether future lives were saved by the elimination of the unit and the seizure of their guns.

The Northern Ireland Coroners 1963 Rules rule 16 provides, “Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability” [16]. Judge Humphreys as coroner then quoted a series of judicial decisions that effectively turned that rule upside down, concluding “this restriction does not prevent findings of fact that, by inference, point strongly to such liability” [17]. This was based on Lord Bingham’s 2007 statement in Jordan that “a jury may find facts, either as primary facts or as inferences from primary facts, directly relevant to the cause of death which may point very strongly towards a conclusion that criminal liability exists or does not exist.”

The lethal force issue

Judge Humphreys described a coroner’s inquest as not being a criminal trial nor a civil action but an inquisitorial process intended to arrive at findings of fact and answer the “statutory questions” (especially ‘how’) where lethal force has been inflicted by state actors:

“(i) Did the person opening fire have an honest and genuine belief that it was necessary to use lethal force?

(ii) Was the force used reasonable for the purpose of defending himself or others from unlawful violence, having regard to the circumstances which he believed existed at the time?

(iii) Was the military operation planned and controlled so as to minimise, to the greatest extent possible, the need to have recourse to lethal force?” [25]

These are the ECHR Gibraltar tests on which the coroner relies almost entirely to the exclusion of other case law quoted including ECHR Da Silva (de Menezes) and to the exceptions in Article 2.2.

In the event, Humphreys, as he carefully went about it, did find facts from which an inference of guilt could be drawn although using something of a reverse telescope methodology. He topped it with a definitive opinion or belief that the use of lethal force was not justified [343] The first two questions on force, which are essentially the same, were answered in the negative although he left out the word ‘genuine’, one he had earlier required. The method of finding facts, however, can be perverse and irrational and become grounds for appeal on top of points of law.

Either way – adjudicating or simply fact finding – he properly passed his assessment to the Public Prosecution Service (PPS) although without specifying what crime(s) may have been committed. Why not, and will it be murder or will the soldiers face a lesser charge like joint enterprise manslaughter or even assault?

In a significant, related 2011 civil case, a wounded Clonoe getaway driver was awarded £75,000 damages by Mr Justice Treacy – oddly with no reduction for culpable negligence – after alleging assault by the soldiers. He and two other accomplices in the car park, initially charged with attempted murder were, in 1995, sentenced to three years’ imprisonment, suspended for three years after pleading guilty to a lesser charge of assisting offenders.

Two other witnesses, CC1 and CC2, left the car park that night and drove to Monaghan where a month later they were arrested by Garda. They and CC3 refused to answer questions at the inquest about the events or about their going on the run. The coroner drew no inferences on criminal liability from their evidence (or lack of same), yet he recorded earlier, “In civil proceedings, it is recognised that the invocation of the privilege may lead to a court drawing an adverse inference against a witness.” [20] None the less, he reported nothing of a criminal nature to the PPS.

In contradistinction, he also quoted ‘Jervis on Coroners’, “Since it is the right of a person asked an incriminating question to decline to answer, neither the coroner nor any jury is entitled to draw any inference adverse to the witness from the exercise of the right.” He added, “Had the legislature intended that coroners could draw such inferences in the event of a Rule 9 refusal to answer a particular question, it could have said so.” Which of course is precisely the opposite of what the Northern Ireland judiciary has recently done on Rule 16 given no legislative back-up.

The Coroners (Practice and Procedure) Rules (Northern Ireland) are now a dead letter when it comes to Rule 16 whose intent has been reversed. It must surely be re-introduced or amended.

None of the eleven soldiers in the car park (the twelfth, Soldier H, “absented himself”) answered questions at the inquest about the period of the shooting as they were entitled to under Rule 9 although their 1992 police interview notes and statements were extensively drawn upon, and relied upon by the coroner as having “undoubted evidential value” although the assertions and comments made therein “were not subjected to any testing by way of cross-examination.”

That judicial reversal of the intention in the 1963 Rules, which was deliberately particular to Northern Ireland, to stop statements of criminal liability gives a coroner free rein. It is disturbing, if one believes in the rule of law but of a part with turning inquests into public inquiries by the back door although that is not permitted in England.

The costs of reopened inquests are also seen as irrelevant to Northern Ireland judges although not to those in England. We know that the Clonoe inquest which involved twenty daily sittings has so far run up legal fees alone of £1.25 million. That excludes PSNI and MoD expenditure and the ordinary expenses of the Legacy Inquest Unit.

Army planning and control

The third leg of the findings and of the effective determination of criminal liability is the question whether the military planned and controlled the operation “so as to minimise, to the greatest extent possible, the need to have recourse to lethal force”. The coroner’s answer, relying on the Gibraltar precedent, was again negative. This was the 1995 ECHR decision in McCann when the Strasbourg Court determined whether there was a violation of Article 2 in relation to the killings of three IRA members engaged in a plan to explode a bomb in Gibraltar.

It observed, “In determining whether the force used was compatible with Article 2, the Court must carefully scrutinise, as noted above, not only whether the force used by the soldiers was strictly proportionate to the aim of protecting persons against unlawful violence but also whether the anti-terrorist operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force.” [10] By a slim majority Strasbourg found the UK had so breached the European Convention but only on this second planning ground, not because of the soldiers’ use of lethal force.

The issue of the confusion around whether the IRA unit was to form up in the car park or conclude there to disassemble the machine gun and then disperse was paramount to the coroner. The RUC Special Branch memo of that day “contained a specific reference to the chapel car park being used, after the event, to enable vehicles to collect the weapons and personnel and take them to a safe house. It also appears in an undated report prepared by [the RUC’s] Frank Murray in the aftermath of the shootings.” [273] “In the event, and for whatever reason, this information was not shared…That alone constitutes a serious flaw in the planning of the operation.” [326]

If that flaw was based on confusion, it falls as a component part of criminal liability. Nobody at the inquest suggested a reason for the mix-up. Many of the soldiers did not know the locality while there were two nearby chapel car parks involved. This combination may have the source of the error. Information received just the day before did state that a “heavily armed gun team, armed with a 12.7 heavy machine gun and 3 AKM rifles, will attack Coalisland RUC station from the grounds of the chapel opposite the station.” [49] Certainly no malign reason for the mistake sprang to the coroner’s mind. Who provided the key information goes unmentioned, as you would expect.

The other aspects of control failure were that the lack of cover in the car park made arrests difficult as soldiers, if standing up, might be ‘skylined’ by headlights, while there was no alternative plan to surprising the suspects as they assembled the gun. The finding seems remarkably weak. Few any army operations in hindsight would not be judged as failing should death occur.

There is not the slightest suggestion or hint by the coroner of how arrests might have been effected, in the dark, in either scenario, but particularly when the lorry arrived tooled-up, just minutes after the attack on the barracks. After a crouching wait of three hours, the chances of soldiers engaging without gunfire was minimal or of contrary instructions being issued to a dozen men without being heard. Inability to break radio silence went unmentioned while shouting by Soldier A to his unit would have alerted those waiting in the car park. The unlikely assumption made is that the ten would have gone quietly. That three of the men would be carrying AKMs is not taken account of.

How many alternative arrest plans should an SMU have? In his Coagh findings, Humphreys stated, “It is not the role of this inquest to seek to devise alternative plans which could have been put in place by the SMU.” [324] However if you believe viable or feasible arrest alternatives were possible, they surely must be outlined and indeed one was proffered over Clonoe by the coroner.

“The actions of Soldier A are therefore of significance. There is nothing on the radio logs to indicate that he gave instructions to the unit to act in a particular manner once the unanticipated had occurred. Instead, when the lorry arrived at the car park, he stood up, thereby breaking cover. This had the inevitable effect of significantly increasing the likelihood of engagement and therefore the use of lethal force. It should have been obvious to him, as the ground commander, that the PIRA unit would have to dismount the DShK from the lorry and place it into another vehicle in order to secure it and move it away from the scene. He could therefore have ordered his men to wait until these steps were being taken, which would have reflected the intention of the original plan. Instead, he and others stood up and opened fire on the lorry. [329]”

Mary Wakefield in The Spectator [1 March 2025] disputed that option, “I can’t think of a more certain way for a soldier to endanger the lives of his men than by cheerily announcing their presence to armed terrorists with a burning hatred of the British Army and a heavy machine gun.”

The tone and content of later army statements is seen by the judge as further evidence of guilt because of the use of the words ‘success' and ‘dead bravos’, and a fussy analysis of a contradiction by Colonel A on the use of the word ‘ambush’. That ‘false justifications’ were spun by the army about an exchange of gunfire and simultaneous firing [332-335] is determined as yet more proof, after the event, of control failure.

Judicial review

A judicial review of the coroner’s findings was urgently sought by a large number of public figures – in the Commons by James Cartlidge MP, the Conservative Shadow Defence Minister, Gavin Robinson MP, David Davis MP at Prime Minister’s questions, in the Lords by Baroness Arlene Foster and Lady Hoey, and several retired service chiefs in a letter, including Lord Dannatt, Lord West and Col Tim Collins. This would have involved the MoD unusually taking a judicial review along with the provision of legal assistance to former soldiers.

A House of Lords Ministerial answer hinted the matter was under consideration and on 21 March 2025 the news of a review came through. Indeed the news in the form of a reply from the Veterans Minister, Alistair Carns MP, to James Cartlidge was of two judicial reviews, one being taken by the MoD with a pre-action protocol letter already issued to the coroner and one by the “Specialist Military Unit veterans”. Whether the Attorney General, Lord Hermer, advised on and endorsed the decision or recused himself, as might be expected given both his views and his previous representation of Gerry Adams, will remain unknown. The review will hinge particularly on the law as opposed to contested facts, on issues such as delegated discretion, that is whether or not to arrest.

Baroness Kate Hoey in a Lords legacy debate on 26 February spoke of a comparison with London, “We have had the same issue of police responses to terrorism in London. The Metropolitan Police have a policy, first enunciated by Sir John Stevens, now the noble Lord, Lord Stevens that armed officers must shoot to kill if they believe that someone is trying to detonate explosives on their body or in a vehicle. I know that this can lead to horrible mistakes, as with Jean Charles de Menezes, a Brazilian electrician mistaken for a suspected Islamist terrorist, who was shot dead by armed police officers on a tube train at Stockwell station in my former constituency.

That was a terrible tragedy. None the less, there was never a suggestion that the officers concerned or the commanders—who included, ironically, Jon Boutcher, now the Chief Constable of the PSNI—should be charged with murder” She then asked if the government would assist “in a judicial review of this judge’s shocking decision, as a matter of urgency”.

Finally she said, “It is very sad that this kind of thing is on social media, but there is a meme doing the rounds that depicts Sir Keir Starmer speaking to British troops as they board an aircraft. He says to them, “I need you to get on this plane and go to Ukraine to fight. If you live and come back, I will make sure you are jailed for war crimes. Just like we do in Northern Ireland, we will hunt you down”.

Is that really what we want to do to our brave soldiers? Because that is what will happen. It will not be IRA killers who took part in bombings who will face this—many have had their get-out-of-jail cards and royal pardons and gone off to America; it will be the soldiers and police who did their best under incredibly difficult circumstances.”

The judicial review by the MoD, is essential to clarify the law and pre-empt a prolonged and costly legal operation. Otherwise we would have to, and may yet if the judicial reviews fail, go through the process of the PPS considering the coroner’s views as submitted, and probably finding insufficient evidence from a police re-investigation to mount a case. The PPS would then be subject to a judicial review which after bringing in a different KC who would recommend prosecutions would oblige a change of mind. Of course “a direction not to prosecute any of the soldiers concerned issued from the office of the DPP on 15 October 1992” so this would reverse an earlier decision made over 30 years ago.

Some five years from now, prosecutions against Colonel A and Captain A, the RUC officers and the 12 soldiers would in all likelihood fail, 40 years after the event. Could these judicial reviews be the turning point for Hilary Benn and the Labour government? This far and no further in concession to legacy lawfare against the state. It is time to begin to curb the separatist judicial power exercised by so many Northern Ireland judges in our semi-detached jurisdiction.

Jeffrey Dudgeon (Convenor of the Malone House Legacy Group)

LINKS TO ARTICLES AND DEBATES –

6 February 2025, Clonoe inquest full findings NI Coroner Humphreys J

https://www.judiciaryni.uk/files/judiciaryni/2025-02/In%20the%20matter%20of%20an%20inquest%20into%20the%20deaths%20of%20Kevin%20Barry%20O%27Donnell%2C%20Patrick%20Vincent%2C%20Peter%20Clancy%20and%20Sean%20O%27Farrell.pdf

6 February 2025, Clonoe inquest summary of findings

Summary of findings - Clonoe Inquest (O'Donnell, Vincent, Clancy and O'Farrell)

11 April 2024, Coagh inquest full findings NI Coroner Humphreys J

https://www.judiciaryni.uk/files/judiciaryni/2024-05/In%20the%20matter%20of%20an%20Inquest%20into%20the%20deaths%20of%20McNally%2C%20Doris%20and%20Ryan%20%28Coagh%20Inquest%29.pdf

11 April 2024 Coagh inquest summary

https://www.judiciaryni.uk/files/judiciaryni/2024-04/Summary%20of%20findings%20-%20Coagh%20inquest%20%28Lawrence%20Joseph%20McNally%2C%20Anthony%20Patrick%20Doris%20and%20Michael%20James%20Ryan%29_0.pdf

24 October 2024, Francis Bradley (d. 1986), inquest full findings Judge Irvine

https://www.judiciaryni.uk/judicial-decisions/2024-nicoroner-30

7 February 2025, Doug Beattie MLA BBC Nolan Show interview https://www.bbc.co.uk/sounds/play/p0kpsv1r?partner=uk.co.bbc&origin=share-mobile

11 February 2025, David Davis MP urgent question on Clonoe inquest debate

https://hansard.parliament.uk/commons/2025-02-11/debates/7261914A-2F85-428A-98B6-1034567AF95E/ClonoeInquest

12 February 2025, Lords debate on Clonoe and MoD; L Caine and Bs Foster’s mention of JR https://hansard.parliament.uk/lords/2025-02-12/debates/9E45DFFC-234C-4B02-85FA-B61D8EDF9DB2/ClonoeInquest

21 February 2025 NI Veterans Commissioner David Johnstone statement

https://www.nivco.co.uk/clonoe-file-sent-to-public-prosecution-service-a-statement-from-northern-ireland-veterans-commissioner-david-johnstone/

26 February 2025, Baroness Hoey Lords legacy speech

https://hansard.parliament.uk/Lords/2025-02-26/debates/EE62397B-50C8-424C-BB5F-79F627974EC3/NorthernIrelandTroubles(LegacyAndReconciliation)Act2023(Remedial)Order2024#contribution-BD711B83-50FD-4108-AA60-2EA496E020E2

26 February 2025, full Lords legacy debate on Remedial Order

https://hansard.parliament.uk/Lords/2025-02-26/debates/EE62397B-50C8-424C-BB5F-79F627974EC3/NorthernIrelandTroubles(LegacyAndReconciliation)Act2023(Remedial)Order2024

1 March 2025, Mary Wakefield article, Spectator ‘Who’d be a soldier now’

https://www.spectator.co.uk/article/whod-dare-join-the-sas-now/

5 March 2025, James Heale, Spectator, ‘The Special Forces scandal is not going away’ https://www.spectator.co.uk/article/the-special-forces-scandal-is-not-going-away/

21 March 2025 (on X) @jcartlidgemp Clonoe update: I’m delighted to confirm that, after I wrote to the Defence Secretary on 12th February urging him to judicially review the NI Coroner’s Clonoe verdict of ‘unlawful killing’ by British soldiers, the MoD will now be taking action. Very welcome news for our veterans.

Alistair Carns Veterans Minister letter to James Cartlidge MP announcing two judicial reviews https://x.com/jcartlidgemp/status/1903110822198489250/photo/1

22 March 2024 BBC NI report of JRs https://www.bbc.co.uk/news/articles/c1kj1d0y2y9o