About this case:

• Citation:
  [2025] NIKB 54
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice McAlinden

Delivering judgment for the High Court, Mr Justice Gerry McAlinden remarked that “it is somewhat ironic that the only soldier whose actions were challenged in this unmeritorious judicial review was the soldier who exercised by far the greatest degree of restraint in the use of firearms during this incident”.

Karen Quinlivan KC and Stuart McTaggart appeared for the applicant, instructed by Ó Muirigh Solicitors. Paul McLaughlin KC and Bobbie-Leigh Herdman appeared for the coroner, instructed by the Coroners Service for Northern Ireland. Peter Coll KC, Andrew McGuinness and Michael McCartan appeared for the Ministry of Defence, instructed by the Crown Solicitor for Northern Ireland. Ian Skelt KC and Ben Thompson appeared for Soldier B, instructed by McCartan Turkington Breen Solicitors. Des Fahy KC and Karl McGuckin appeared for an anonymised party, instructed by Mallon & Mallon Solicitors. 

Background

The applicant was the daughter of Anthony Patrick Doris, a man who was shot dead on 3 June 1991 by Soldier B, who was part of a specialist military unit in County Tyrone.

The deceased was, at the time of his death, a member of a Provisional IRA (PIRA) team which was on an active service operation to murder an off-duty UDR soldier in the village of Coagh. The other two members of the PIRA team were also killed.

An inquest into the death of the deceased and the other members of the PIRA team was conducted in 2022–2023 by Mr Justice Humphreys sitting as a coroner, with the court’s findings being delivered in April 2024.

The issues

Mr Justice McAlinden was satisfied that the challenge could be condensed to four core issues, noting that the applicable standard was one of “anxious scrutiny”:

• whether Soldier B subjectively had a genuine and honest belief as to the need to open fire;
• whether in addressing that issue, the coroner adopted the correct test and provided adequate reasons for his conclusions;
• whether the amount of force was proportionate in the circumstances; the relevant circumstances being as Soldier B genuinely understood them to be; and
• whether in addressing that issue, the coroner adopted the correct test and provided adequate reasons for his conclusions.

The High Court

Having considered the evidence which was before the coroner, Mr Justice McAlinden considered the applicant’s contention that the coroner failed to engage with the evidence given by Soldier B as to why he fired and failed to give an adequately reasoned decision as to why each of the eight shots fired by Soldier B were justified.

Noting the “ludicrous nature of this challenge”, the judge found that the applicant’s grounds of challenge were “utterly divorced from the reality of the circumstances and challenges faced by Soldier B and the other soldiers”, in circumstances where Soldier B had a “split second” to take action to stop what he honestly believed to be a PIRA active service unit from committing murder and made the decision to fire eight shots upon the driver and stopped firing when the driver was no longer in his field of vision.

Pointing out that less than two seconds elapsed “from start to finish”, Mr Justice McAlinden opined:

As to the contention that the coroner was not entitled to conclude that Soldier B honestly and genuinely believed that the unarmed driver of the car which was travelling away from the soldiers posed a threat to his life or the life of any other person, the court highlighted that no challenge had been made to Soldier B’s honesty or genuineness and that there was “ample, cogent, compelling, evidence which had stood the test of rigorous cross-examination” to allow the coroner to conclude that Soldier B honestly and genuinely believed that the driver Mr Doris was an integral part of a PIRA active service unit that continued to pose a threat to the lives of others in the less than two second period that elapsed during which he decided to open fire.

In that regard, the judge noted that “on the basis of the evidence, I would have felt compelled to reach the same conclusion as the coroner reached in this case”.

In respect of the argument that the coroner was not entitled to conclude that the force used was proportionate to any perceived threat posed by the unarmed driver, in circumstances where the car was travelling away from soldiers, the court distinguished between being unarmed on the one hand and being armed but not actually holding a firearm in the clear view of an observer, noting that Soldier B was being criticised for not concluding that the driver was unarmed from what he observed in a split-second period of time.

The court explained that this criticism was “unfair, naive, and demonstrates a detachment from reality which can only be explained by being motivated by a desire to re-write events rather to uncover the truth”.

Mr Justice McAlinden stressed that the proportionality assessment required on part of the coroner involved an assessment of whether the force used was reasonable having regard to the circumstances as Soldier B honestly and genuinely believed then to be.

Finding that the coroner’s reasoning in this regard was “clear, comprehensive and flawless” and that he neither missed any relevant evidence nor included any irrelevant matters in his assessment, the court concluded that the coroner engaged in a common-sense analysis of the issue of reasonableness and proportionality.

As to the applicant’s argument that the coroner failed to explain how Soldier B’s actions were compliant with the relevant version of the Yellow Card, which mandated that a soldier could only open fire against a person if he was committing or was about to commit an act likely to endanger life and there was no other way to prevent this danger, Mr Justice McAlinden stated that this complaint was “utterly groundless”, that the coroner’s finding dealt “at length” with the issues of training and the Yellow Card and that “To argue that the coroner did not explain why he concluded that Soldier B had complied with the Yellow Card is to argue that a black crow was white”.

Having considered the applicant’s remaining arguments, the court emphasised: “Just because Soldier B opened fire on Mr Doris, does not mean that Soldier B did not comply with the high standards expected of him.”

Mr Justice McAlinden concluded: “The coroner conducted a thorough, diligent and detailed examination of the facts and circumstances surrounding the deaths of Mr Doris and the other deceased and he provided detailed findings which in every way complied with the state’s duties under Article 2 ECHR.”

Conclusion

Accordingly, the High Court dismissed the application.

In the Matter of an Application by Roisin Nugent for Leave to Apply for Judicial Review [2025] NIKB 54