Court of Appeal in Northern Ireland Decisions

Attempted murder, contrary to Article 3 (1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and Common Law.

Gary Jones, on the 21st day of July 1998, in the County Court Division of Armagh and South Down, attempted to murder a member or members of the security forces.

Causing an explosion, contrary to section 2 of the Explosive Substances Act 1883.

Gary Jones, on the 21st day of July 1998, in the County Court Division of Armagh and South Down, unlawfully and maliciously caused by a certain explosive substance, namely an improvised mortar system an explosion of a nature likely to endanger life or to cause serious injury to property.

Possession of an explosive substance with intent to endanger life, contrary to section 3(1) (b) of the Explosive Substances Act 1883.

Gary Jones, on the 21st day of July 1998, in the County Court Division of Armagh and South Down, unlawfully and maliciously had in his possession or under his control a certain explosive substance, namely an improvised mortar system, with intent by means thereof to endanger life or cause serious injury to property in the United Kingdom, or to enable some other person so to do."

"1. The learned trial judge erred in rejecting the Appellant's application that there was no case to answer on the count of causing an explosion the nature of which was likely to endanger life or to cause serious injury, contrary to Section 2 of the Explosive Substances Act 1883, by reason of there having been no evidence capable of establishing a prima facie case that an explosion had been caused.

2. Without prejudice to 1 above, the learned trial judge erred in rejecting the Appellant's application that there was no case to answer on the said count, by reason of there having been no evidence capable of establishing a prima facie case that an explosion, the nature of which was likely to endanger life or to cause serious injury to property, had been caused.

3. Further and without prejudice to the foregoing, the learned trial judge erred in rejecting the Appellant's application that there was no case to answer on the said count, by reason of there having been no evidence capable of establishing a prima facie case that the Appellant had caused an explosion, the nature of which was likely to endanger life or to cause serious injury to property.

Entirely without prejudice to the foregoing:

4. There was no, or no sufficiency of evidence, upon which the learned trial judge could properly have concluded beyond a reasonable doubt that an explosion had been caused, as required under Section 2 of the Explosive Substances Act 1883.

5. Without prejudice to 4 above, there was no, or no sufficiency of evidence, upon which the learned trial judge could properly have concluded beyond a reasonable doubt that an explosion, the nature of which was likely to endanger life or to cause serious injury to property, had been caused.

6. Further, and without prejudice to the foregoing, there was no, or no sufficiency of evidence, upon which the learned trial judge could properly have concluded beyond a reasonable doubt that the Appellant had caused an explosion the nature of which was likely to endanger life or to cause serious injury to property.

7. The learned trial judge erred in concluding that the necessary sine qua non "fact" required under Article 3(1) of the Criminal Evidence (Northern Ireland) Order 1988 to permit the proper drawing of inferences under Paragraph (2) thereof was, in the circumstances existing at the time, a fact which the Appellant could reasonably then have been expected to mention when questioned.

8. The learned trial judge erred in adjudging the inferences, and each of them, drawn by him pursuant to Article 3(2) of the said Order as set out at paragraph [27] of his judgment, to be properly deducible, and further erred in concluding that both were or either was proper in the circumstances.

9. The learned trial judge wrongly exercised his power under the said Article 3(2) in that the said inferred findings were, and each was, unsustainable, contrary to logic, unwarranted and overreaching.

10. The learned trial judge further erred in integrating the above referred to unwarranted inferences into the circumstantial matrix referred to at paragraph [28] of his judgment, and further and without prejudice to this point, erred, in any event, in arriving at the conclusions which he did, as to use, ownership and wearing of the jumper therein referred to on the afternoon of 21 July 1998, in that the said conclusions were in and of themselves unwarranted and overreaching.

11. The learned trial judge erred in concluding that the Appellant was guilty in reliance on circumstances the cumulative effect of which did not properly eliminate the reasonable inferable conclusion that the blood trace found had been deposited on the jumper at some unknown earlier occasion, such as during his work at the Orana Centre.

12. The learned trial judge failed to give consideration to, or apply, the principles required to be considered in a circumstantial case.

13. The learned trial judge, in evaluating the circumstantial evidence herein, failed to give any or adequate consideration to the existence of other coexisting circumstances which weakened or destroyed the inference of guilt, namely:

a. The Lennon description which did not match the Appellant

b. The absence of any forensic evidence connecting the Appellant to the van, its contents, the hat and other clothing.

c. The fact that the fingerprints found on the hat did not match the Appellant.

14. The learned trial judge erred, this being a circumstantial case, in failing to give adequate weight to the description given by Mr. Lennon, which description did not match the Appellant, and in concluding, without any evidential foundation (the evidence of Mr. Lennon being agreed) that this evidence was inherently unreliable.

15. The learned trial judge erred in failing to consider the defendant's good character in relation to propensity."

At paragraph 24 of his judgment the learned trial judge said –

"There is no doubt that the white jumper had a small spot of blood in the inside left collar area and the DNA analysis showed that there was a one in a billion chance that the blood did not belong to the accused or someone related to him. The accused declined to give any explanation for this in his interviews when he was asked about the blood on the jumper and when invited to give some explanation for the presence of the jumper at the scene he declined to say anything. In his defence evidence was called from Sister McClory to establish that the accused had worked in the Orana Centre on Fridays between 1990 and 1998 and that he had placed new and used clothing in boxes and bags for distribution to charity shops in the course of that work. The accused did not give evidence at the trial."

"[26] I accept entirely the submissions of Mr Macdonald about the reliability of Sister McClory's evidence. That evidence is put forward by the accused to raise the possibility that the spot of blood on the collar of the jumper was caused as a result of the handling of the jumper by the accused in the course of his work. In support of that possibility the accused also pointed to the evidence of Ms Boyce that the jumper was an absorbent item and that such a spot would remain on the jumper until removed. It is, of course, inherent in that possibility being put forward as the full explanation that the jumper did not belong to the accused and that he had not to his knowledge worn it. When arrested and at the start of each interview the defendant was cautioned and told that the need not say anything and that it was, therefore, his right to remain silent. He was also told that it may harm his defence if he did not mention when questioned something which he later relied on in court. In circumstances where the accused was being asked about blood on a jumper that he did not recognise I consider that the accused could reasonably have been expected to mention when questioned that he had carried out work of the sort described by Sister McClory. I have also briefly considered the possibility that the jumper was worn by the accused but that it was donated to the Orana Centre at some stage prior to the mortar incident. In those circumstances the expectation that he would have mentioned his work at the Centre when questioned is, if anything, greater. I find, therefore, that the requirements of article 3(1) of the 1988 Order are satisfied.

[27] By virtue of article 3(2) of the 1988 Order the court "may draw such inferences from the failure as appear proper". That article clearly allows the court to consider not only the inference that the fact upon which the accused relies is not true or the evidence about it unreliable but also permits the court to draw inferences about other matters if it is proper to do so. I recognise that I am not obliged to draw any inference from such a failure but in this case I am satisfied beyond reasonable doubt that the inference that I should draw from the failure of the accused to mention the nature of his work at the Orana Centre is that he knew that the spot of blood on the jumper was not caused by or contributed to by that work and I am further satisfied beyond reasonable doubt that the reason for his having that knowledge was that at all relevant times he was aware of the location of the jumper."

"[28] The spot of blood on the jumper was located on its inside collar. That spot was made either on the day in question or at some earlier stage. That satisfies me beyond reasonable doubt that he was connected to the jumper in the sense of using it. That conclusion coupled with my conclusion that he was aware of the location of the jumper at all relevant times leaves me satisfied beyond reasonable doubt that this was his jumper and that he was wearing it on the afternoon of 21 July 1998 before it was removed from him by Mr Lennon. I have taken into account the fact that there was no forensic link between the accused and the interior of the van but I find this of no assistance. A person engaged on a venture such as this is likely to take care not to leave a forensic trail. I find the hair evidence of very little assistance."

i. the power of the court under Article 3 of the Criminal Evidence (NI) Order 1988 to draw an inference from the accused's silence at interview was wrongly exercised and/or incorrect inferences were drawn;

ii. that in evaluating the circumstantial evidence, inadequate consideration was given to other co-existing circumstances and/or evidence which weakened or destroyed the evidence of guilt;

iii. there was a failure to consider the appellant's previous good character in relation to propensity;

iv. and there was no or insufficient evidence that any explosion or any explosion likely to endanger life or cause serious injury to property had occurred.

I will deal with each in turn.

i. Article 3 of the Criminal Evidence (NI) Order 1988.

"……. I am going to make you aware of your rights. You do not have to say anything but I must caution you that if you do not mention when questioned something which you later rely on I court it may harm your defence. If you do say anything it may be given in evidence."

"You've a right not to say anything if you do not want to. Anything you do say can be given in evidence. This means if you go to court the court can be told what you've said. If there is something you do not tell us now when we ask you questions and later you decide to tell the courts then the court may be less willing to believe you."

"3(1) Where, in any proceedings against a person for an offence, evidence is given that the accused—

(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies.

(2) Where this paragraph applies—

(a) the court, in determining whether to commit the accused for trial or whether there is a case to answer;

(b) a judge, in deciding whether to grant an application made by the accused under;  

(i) Article 5 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (application for dismissal of charge where a case of fraud has been transferred from a magistrates' court to the Crown Court under Article 3 of that Order); or

(ii)  paragraph 4 of Schedule 1 to the Children's Evidence (Northern Ireland) Order 1995 (application for dismissal of charge of violent or sexual offence involving child in respect of which notice of transfer has been given under Article 4 of that Order); and

(c) the court or jury, in determining whether the accused is guilty of the offence charged,

may—

(i) draw such inferences from the failure as appear proper."

ii. that in evaluating the circumstantial evidence, inadequate consideration was given to other co-existing circumstances and/or evidence which weakened or destroyed the evidence of guilt.

"Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. Joseph commanded the steward of his house, 'put my cup, the silver cup, in the sack's mouth of the youngest', and when the cup was found there Benjamin's brethren too hastily assumed that he must have stolen it. It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference."

i. the fact there was no supportive fingerprint or DNA evidence connecting the appellant to the van, the contents of the van, the jacket, the helmet or the items found in the jacket;

ii. the fact that the description given by Mr Lennon did not match that of the appellant.

iii. the alleged failure to consider the appellant's previous good character in relation to propensity.

"While on the subject I might say a word on the duty of the judge when giving judgment in a trial under the 1973 Act. He has no jury to charge and therefore will not err if he does not state every relevant legal proposition and review every fact and argument on either side. His duty is not as in a jury trial to instruct laymen as to every relevant aspect of the law or to give (perhaps at the end of a long trial) a full and balanced picture of the facts for decision by others. His task is to reach conclusions and give reasons to support his view and, preferably, to notice any difficult or unusual points of law in order that if there is an appeal, it may be seen how his view of the law informed his approach to the facts."

iv. there was no or insufficient evidence that any explosion or any explosion likely to endanger life or cause serious injury to property had occurred.

"….that he caused a certain explosive substance, namely, an improvised mortar system to explode and clearly something did explode in order to launch it from the vehicle. So there was an explosion caused. The intent of that was that it was likely to endanger life because of the make up. Your lordship has seen the evidence about the make up of the device and the weight of explosives it was carrying and therefore the intent was to endanger life or cause damage to property and that that explosion it itself, we say, ground Count 2. The intent was there and the act took place. The fact that it was a damp squib, we say, is neither here nor there."

Thus Count 2 was alleged to be the explosion that launched the mortar device from the rear of the van and through the roof. This was achieved through a propellant which was contained in the launching tube and according to the forensic scientist it functioned. There was no evidence as to the nature of the propellant, but when it functioned it did cause an explosion and it did propel the mortar device from the van, which did not explode on impact.

"[29] I now turn to look at the counts on which he is charged. It is convenient to begin with count 2 being the causing of an explosion contrary to section 2 of the Explosive Substances Act 1883. For the reasons set out above I am satisfied beyond reasonable doubt that the defendant was engaged in the conveying of the improvised mortar device described by Mr McMillen and Staff Sergeant Saunders. I am further satisfied beyond reasonable doubt that the propellant charge functioned but that the impact type initiation fuse did not operate because the mortar was received as separated components. I am satisfied beyond reasonable doubt that the mortar would otherwise have exploded on impact causing a crater of 3 to 4 metres on the ground and potentially causing fatal injuries within an area of 100 metres. As a matter of fact I am satisfied beyond reasonable doubt that the accused contributed to the functioning of the propellant charge in the yard/car park by conveying the van into the yard/ car park and that the functioning of that charge was likely to endanger life because of the likelihood of the devastating consequences on impact of the mortar in this urban setting. The fact that those consequences were fortuitously avoided because the mortar was received as separated components does not affect that conclusion. For those reasons I find the defendant guilty on count 2. I do not have to consider count 3."