Crown Court for Northern Ireland Decisions

Neutral Citation no. (1999) 1908	Ref:	KERF2771
Judgment: approved by the Court for handing down	Delivered:	11/03/99
(subject to editorial corrections)

 

IN THE CROWN COURT OF NORTHERN IRELAND

_________

THE QUEEN

-v-

LEE WILLIAM CLEGG

________

 

KERR J

The indictment

            On a bill of indictment dated 24 April 1998, Lee William Clegg was charged, in the first count, with the murder of Karen Marie McGrillen (known as Reilly) and, in the second count, with attempting to wound Martin Declan Peter Peake contrary to Article 3 of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and section 18 of the Offences against the Person Act 1861.

Clegg had been convicted on 4 June 1993 of the murder of Miss Reilly and attempting to wound Martin Peake with intent to do him grievous bodily harm.  He appealed against both convictions to the Court of Appeal which on 30 May 1994 dismissed his appeal.  He then appealed to the House of Lords.  On 19 January 1995 that appeal was also dismissed. Following representations made on Clegg's behalf the Secretary of State for Northern Ireland referred the case to the Court of Appeal which on 27 February 1998 quashed both convictions and ordered a new trial on the two counts on which he had been convicted.  The retrial took place between 6 November 1998 and 3 February 1999.

Background

The factual statements contained in the narrative which follows either were not the subject of dispute on the trial of the accused or they represent conclusions which I have reached on the evidence.  Where I have arrived at and express conclusions on disputed evidence I am satisfied beyond reasonable doubt of the truth and accuracy of the evidence which supports those conclusions.

In September 1990 Ronald William Gibson was a neighbourhood constable in the Royal Ulster Constabulary stationed at Woodbourne.  At that time a neighbourhood constable could not carry out his normal policing duties unless he was accompanied by a military patrol.  Usually, therefore, when a constable was required to perform such duties he would do so with a patrol of sixteen soldiers divided into four teams known as 'bricks'.  The police officer was in charge in the sense that he was responsible for deciding which duties were to be carried out during the patrol.  He liaised with the military commander, usually a junior officer or a senior non commissioned officer.  The military commander was in direct control of the troops and deployed them as requested by the police officer.  If a terrorist incident was encountered, control of the entire patrol would pass to the military commander.  Most of the duties of a neighbourhood officer were carried out on a joint army/police patrol, therefore.  Such a patrol would normally last between one and a half and two hours.

On the evening of Sunday 30 September 1990 Constable Gibson came on duty at about 9.30pm.  The patrol which he was due to undertake that evening was to have been in the Upper Dunmurry Lane/Glengoland area of Belfast.  For security reasons that patrol was cancelled. Constable Gibson decided to go on an 'anti joyriding' patrol instead.  He spoke to the officer in charge of military operations, Captain Bullivant of the Parachute Regiment, and secured his agreement to this.  He also obtained authorisation from Chief Inspector Brown of the Royal Ulster Constabulary. Normally he would have sought permission from his inspector, Mr. McRorie, but that evening Constable Gibson was unable to find this officer and so he spoke to the senior officer instead.  He explained that complaints had been recorded in the station Occurrences Book about joyriding.  While he discussed the matter the sound of joyriding was clearly audible within the police station and the chief inspector readily agreed that Constable Gibson should lead a patrol to the Lenadoon estate to try to deter joyriding in that area.

The constable then discussed the matter with another police colleague, Constable Gorman, and it was agreed that the latter should enter the Lenadoon estate with a patrol, attempt to 'flush out' joyriders from the estate and encourage them to travel towards the Glen Road where Constable Gibson's patrol would intercept them.  He also informed Lieutenant Oliver of A Company, the Parachute Regiment (who was to be the military commander of the patrol) and Captain Bullivant of his plans.  These included that the patrol should be dropped off in the Glen Road first, and, after operating a vehicle checkpoint (VCP) there for some time, that they should then proceed on foot to the Lenadoon estate where they would be picked up by military vehicles. Instead of returning to Woodbourne as would be customary, however, Constable Gibson planned that the patrol would be dropped off again later in another part of Lenadoon.  This was proposed as a surprise tactic for the joyriders who, in the estimation of Constable Gibson, would not expect the patrol to redeploy in the estate.

Some little time after speaking to Constable Gorman, Constable Gibson realised that the type of VCP usually operated by a patrol (i.e. a 'rolling' VCP) would not be satisfactory. At this time various types of VCP were commonly used. These included a 'snap' VCP (which would be set up suddenly in the course of a patrol), a  static VCP (a fixed and planned checkpoint at a chosen location with or without the use of military vehicles) and a rolling VCP where the patrol stopped vehicles on an ad hoc basis while patrolling. It was the experience of the security forces that joyriders would not stop at VCPs unless forced to do so. Effectively, therefore, the only way to stop them was to have a VCP consisting of vehicles which would block their path.  It was not usual to undertake this type of VCP during a foot patrol.

Constable Gibson, having realised that military vehicles would be required, spoke again to Lieutenant Oliver, this time in the car park outside the police station as the patrol was about to begin. .He asked the lieutenant if army vehicles might be used to form a VCP for joyriders.  The lieutenant agreed and spoke to the drivers of the military vehicles about positioning their vehicles at the drop off point.

Earlier Lieutenant Oliver had briefed his men, including Private Clegg. There is disagreement between Clegg and Oliver as to whether a NCO also addressed the assembled patrol during the briefing.  Clegg claimed that this took place; Oliver said that he believed that it did not. I am satisfied that the meeting at which the men were briefed did not include any contribution from an intelligence NCO.

Lieutenant Oliver claimed that he informed the men that there was a heightened security alert for that evening.  I am not satisfied that this was truthful evidence.  He also claimed that he did not brief the men that the patrol would involve the detection and deterrence of joyriders.  I did not believe that evidence nor the reasons given by Oliver for his decision not to inform the men under his command that this was to be an anti joyriding patrol.

The members of the patrol were dropped off on the Glen Road sometime between 11.15 and 11.30pm.. The drop off point was a bridge over a small river which ran under the road.  The army vehicles were positioned so as to form a chicane.  Each of the bricks had a separate callsign and each took up separate duties when they alighted from the vehicles.. The bricks with callsigns Victor 12 and Victor 14 (V12 and V14) set off patrolling towards the Lenadoon estate. i.e in a citywards direction.  Victor 11 (V11) moved countrywards from the bridge. It was to have primary responsibility for the operation of the VCP. Victor 10 Alpha (V10A) was under the command of Lieutenant Oliver and it remained in the vicinity of the bridge.  Constable Gibson was most directly associated with this brick because of his liaison role with Mr. Oliver.  The brick consisted of Lieutenant Oliver, Corporal Boustead, Private Clegg and Private Aindow.

While the VCP was being set up a Vauxhall Cavalier car approached from the countrywards direction.  It may have stopped briefly in response to a signal; if it did, it did not remain stationary for long.  It was driven at speed through the chicane. I am satisfied that members of V11 called after the car to stop and that some members of the patrol, including Constable Gibson, had to jump from its path.  I am further satisfied that some of the bricks V12 and V14 raised their rifles and took aim at the car as it passed.  They did not fire, however.

A short time later another car approached the VCP, again from a countrywards direction. Constable Gibson spoke to the occupants and established that they were in pursuit of the Cavalier which had been stolen from their friend.  He permitted the car to proceed.  After that a few other cars were stopped and checked at the VCP and allowed to continue their journey.

After the VCP had been in operation for about ten minutes Constable Gibson decided that it would be pointless to continue since the occupants of the Cavalier (who were almost certainly joyriders) would have alerted other joyriders to the presence of the VCP.  The constable told Mr. Oliver that he thought that the military vehicles should be allowed to return to Woodbourne and Lieutenant Oliver duly gave the necessary instruction.  Constable Gibson radioed through to Constable Gorman to tell him that they were discontinuing the VCP and that they would proceed to the Lenadoon estate as earlier planned. V10A then set off intending to conduct a rolling VCP en route to Lenadoon.

When patrolling along a road, a brick would normally adopt a staggered formation.  The front man would be on one side of the road; the next man followed on the opposite side some twenty to twenty five feet behind the first with the third on the same side as the first a similar distance behind the second and the last man on the same side as the second, again some twenty to twenty five feet behind the third.  On this occasion the normal formation was not followed by V10A. Corporal Boustead was the leading man and he was on the left.  The second man was Lieutenant Oliver; instead of being on the right, however, he was also on the left directly behind Boustead.  Clegg was behind Oliver, again on the left.  The last man, Private Aindow, was the only member of the brick who was on the right.

Clegg claimed in evidence that when he heard the signal to move off - (a whistle from Oliver) - he turned round to look for Aindow but could not see him.  He claimed that he had to call for him twice before Aindow began to follow, having emerged from the area of the VCP  By this time, Clegg suggested, he was some distance ahead of Aindow who then had to catch up. For reasons which I will give later I concluded that this evidence was untruthful.  I do not believe that Aindow was any significant distance behind Clegg when the brick began to move off.

V11 remained on the countrywards side of V10A as the latter moved off down the Glen Road towards Lenadoon.  At least one member of V11 was positioned in the centre of the road ready to stop traffic approaching from a countrywards direction.  Constable Gibson was also in the centre of the road in the vicinity of the other members of V10A and some fifty metres ahead of V11 in the direction of the City.  The intention was that V11 would follow V10A along the Glen Road maintaining a distance between the two bricks of at least fifty metres but remaining within sight of each other.

I am satisfied that as V10A moved along the Glen Road their positions were as described by Constable Gibson in evidence i.e. Corporal Boustead in front on the left as one looks citywards and roughly opposite the constable's own position in the middle of the road; Lieutenant Oliver some five or six feet behind Boustead, also on the left; Clegg again on the left approximately ten to fifteen feet behind Oliver; Aindow on the right almost directly opposite Clegg. All soldiers were walking, if not on the footpath, close to the edge of the carriageway where it meets the kerb.

The members of the brick were in this position when a Vauxhall Astra car approached from the countrywards direction.  It was displaying headlights.  It was signalled to stop by a member of V11.  It stopped abruptly on the correct side of the road.  It was approached by a soldier but before he reached the car it was driven off at high speed.  Members of V11 shouted words to the effect, "Stop" or "Stop that car".  The car continued at speed towards the area where V10A were patrolling. Constable Gibson stepped briskly out of its path.

All four members of V10A opened fire on the car.  It is not possible to say who started firing but it is clear that both Aindow and Clegg opened fire as the car was approaching; shots were fired into the car as it passed some of the soldiers in V10A and it is beyond doubt that it was fired on by members of V10A after it had passed.  The car did not strike any member of the patrol.  In particular, it did not strike Aindow.  I am satisfied that Oliver's claim that the car collided with Aindow is untruthful.  I am also satisfied that Clegg was lying when he gave evidence that he thought that the car had struck Aindow. 

The car travelled on for several hundred metres after it passed V10A's location.  It came under fire again after it rounded a slight bend on the roadway. This fire came from bricks V12 and V14.  The car came to a halt against the offside kerb.  It was found to contain three young people: Martin Peake, the driver, who was already dead from a gunshot wound to the head, Karen Reilly, the back seat passenger, who was still alive but who had suffered gunshot wounds to the back which caused her death shortly afterwards, and Markievicz Gorman, the front seat passenger, who  had sustained a gunshot wound to the right upper arm.

After the car had passed V10A's position, the members of V11 joined up with V10A and Constable Gibson.  He discovered that the car had stopped further down the road and he began to jog in a citywards direction.  Just beyond a gypsy camp (which is to the right of Glen Road as one travels citywards) Constable Gibson heard shouting.  At this stage he was somewhat ahead of Lieutenant Oliver who was also running towards the car.  Oliver was in turn about thirty feet ahead of the others i.e. the other members of his brick and V11.  The shouting came from the direction of this group and both Gibson and Oliver stopped and turned round and looked back towards the soldiers who were behind them.  Constable Gibson saw one soldier to the left as he looked back.  This soldier was crouched down.  The constable heard words shouted which were along the lines of, "Get down, you're it".  At that another soldier approached the soldier who was crouched and appeared to kick him on the leg. This incident was also witnessed by a Mr William Heaney who lived at that time in a caravan in the gypsy encampment.  He also saw a soldier assaulted by another.  Mr Heaney believed, however, that a weapon had been used in the assault.

I am satisfied that an assault took place and that a blow was inflicted on Aindow in an attempt to create a sign of injury consistent with his having been struck by a car.  Both Oliver and Clegg denied having seen or heard such an incident take place.  I did not believe Oliver's evidence on this issue.  I shall consider Clegg's claim that he knew nothing of the incident in a later section of this judgment.

The challenge to the admissibility of evidence of the assault on Aindow

On behalf of the accused Mr.Clegg QC objected to the admission of evidence relating to the assault on Aindow.  He argued that this evidence should not be admitted (a) because it was not relevant (b) because its admission involved the accused being placed in double jeopardy and (c) because it would be unfair to the accused to admit the evidence; it should therefore be excluded under Article 76(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989.

In advancing the first of these arguments Mr Clegg submitted that what had happened between soldiers other than the accused after the firing of shots could not be relevant to the lawfulness of the accused's actions in discharging his weapon at the car.  There was no evidence, Mr Clegg claimed, that the accused inflicted the injury on Aindow or that he was present when it took place.  What happened after the shooting could not be probative of the guilt of the accused unless the reasonable inference could be drawn against him that he knew that Aindow had been deliberately injured by another soldier and that thereafter he helped to perpetuate the lie which the infliction of the injury was designed to assist viz. that Aindow had been struck by the car.  In fact, as Mr Clegg pointed out, the accused did not claim to have seen the car strike Aindow; he merely suggested in interview that it appeared to do so.

I can deal with this argument briefly.  From the statement of Constable Gibson which was contained in the committal papers it could clearly be inferred that Clegg was in a position to witness the incident.  If he did witness it but denied that he had seen it take place (as he did on interview) the question arises as to why he refused to admit that he saw it happen.  A possible explanation is that he knew that he had no justification for firing at the car but realised that if it could be suggested that Aindow had been struck by the car this might supply a pretext for his having opened fire; he therefore decided to espouse the plan which the others had obviously hatched.  This need not be the only possible explanation of his denial for the evidence about the infliction of injury on Aindow to be relevant.  In the final analysis the evidence may not be probative of the accused's guilt but that is quite a different matter from its being not relevant.  It was open to the court to conclude that Clegg did see the incident, was aware of the reason that injury was inflicted on Aindow and either was complicit in the plan or was prompted by what he saw to claim that Aindow appeared to have been hit by the car.

In the context of relevance it is of no significance that Clegg did not state that the car had definitely struck Aindow.  At a theoretical level this is as consistent with a fabricated account as it is with an innocent explanation.  If Clegg was inspired to manufacture his account of Aindow being in danger because he observed another soldier attack him, he was not obliged to adopt every part of the others' plan.

But the case for the relevance of this evidence can be put more succinctly thus: if Clegg's claim that he believed the car struck Aindow was mendacious, a lying account that he did not witness Aindow being struck by another soldier to simulate an injury from the car was obviously relevant to Clegg's motivation in opening fire in the first instance.

In support of the second argument counsel for the accused pointed out that Clegg had been acquitted by Campbell J of charges of perverting the course of justice and obstructing a constable in the course of his duty.  Those charges arose from Clegg's oral statement to the police that he had seen the car accelerating on the wrong side of the road towards Aindow.  The Crown case on the first trial was that this claim was false and that, by giving that untruthful account to the police, Clegg was guilty of perverting the course of public justice.  In holding that the prosecution had failed to prove that Clegg was guilty of murder in relation to the first three shots, Campbell J said,

"Although I am satisfied that the car did not come into contact with Private Aindow, from the position Private Clegg was in almost directly across the road from Aindow it may well be that as it approached Aindow it appeared to him it was going to do so. The invention of the story that the car had actually struck Aindow detracts from this to some extent since if he had a good reason for firing he had no need to invent one though I do not believe that Clegg would have been capable of making up the story about Private Aindow being injured, having heard him give evidence.  I consider it possible that he did fire his first three shots in the honest belief that he was doing so in defence of Aindow and the prosecution has failed to discharge the onus of proof by proving beyond reasonable doubt that it is not a reasonable possibility that this justification existed for what he did."(pp.51/2)

 

In acquitting Clegg of the charges of perverting the course of justice and obstructing a constable, Campbell J said,

"I turn now to counts 4 and 5 in which it is alleged that the accused perverted the course of public justice and obstructed a constable on 3 October 1990.  These charges arise from his oral statement to the police during interviews to the effect that he saw a car accelerating on the wrong side of the road towards Private Aindow, that Private Aindow's life was endangered by the car and that as far as he could see the car struck Private Aindow because he was knocked off balance.

 

On the facts as I have found them this statement may have described what Private Clegg would have seen from across the road with the exception of his reference to Private Aindow being knocked off balance.  After the car had passed he crossed the road to Private Aindow and asked if he was all right and if he had been hit.  He said that Aindow replied after a moment, 'Yes but I'm all right'.  He did tell the police that he did not see anyone knocked down and the one part of his oral statement that is at variance with the facts as I have found them is based on what he thought had happened as confirmed by Private Aindow."(pp.53/4)

 

Mr Clegg submitted that these passages contained an explicit acceptance by the learned judge that, as the car approached, the accused perceived it to present a real danger.  He argued that the principles relating to double jeopardy, as they have been expounded by the courts, entitled the accused to retain the benefit of the acquittals on Counts 4 and 5 by having excluded from the case now made against him any evidence which tended to question or challenge the factual basis on which the acquittals were made.  Since the judge had found that the accused had genuinely apprehended that the car was endangering Aindow, that finding could not be undermined by the receipt of evidence whose sole function was to suggest that the accused knew that Aindow had not been struck by the car.

Mr. Clegg had advanced a similar argument to MacDermott LJ in a pre-trial application for a ruling that the Crown should not be permitted, on the retrial of the defendant, to present its case on the basis that all four shots fired by the defendant were fired unlawfully since Campbell J had concluded that the accused was not criminally liable for the first three shots.  MacDermott LJ refused that application, pointing out that a considerable body of 'new' forensic evidence had been generated by the investigations which had taken place after the failure of the defendant's appeals.  This included the finding (in fact made by Dr. Renshaw for the defence) that a tracer bullet had been fired by Clegg at the car as it approached.  The evidence in relation to that bullet (at the time that the matter was being considered by MacDermott LJ) suggested that the bullet had been discharged when the car was some forty five feet from Clegg, and, since it was a tracer round, must have been the first or second round which he fired.

The case which the Crown presented to the Court of Appeal was significantly different from that which had been made at the first trial.  This was acknowledged by Carswell LCJ in the following passage from the judgment of the court:-

"The fresh evidence adduced on this appeal, which was not available for the consideration of the trial judge, puts a different complexion on the Crown case from that which was made at trial.  That case has itself been modified in the light of the fresh evidence and the findings obtained on the tests carried out by the experts advising the prosecution.  The hypothesis advanced on behalf of the Crown at trial was a simpler one, which understandably appeared in the absence of the results which the firing tests brought to light to be very difficult to resist.  Since the carrying out of the extensive scientific investigations the court is now in possession of a mass of evidence upon which to base a conclusion, which must of necessity be more complex than that which prevailed at trial."(p.24)  

 

In considering whether a new trial should be ordered, the Court of Appeal was influenced by the consideration that it was desirable in the public interest that all the evidence now available should be examined. Carswell LCJ said:-

"There is a considerable argument that it is in the public interest to ensure that a court which is equipped to make findings of fact can look afresh at all the evidence and decide on the guilt or innocence of the appellant in this incident, which has been the cause of much public concern.  We have taken into account the fact that the appellant, having been sentenced to imprisonment for life, was subsequently released by the Secretary of State.  For this reason to order a retrial now would be to institute proceedings whose result might well be academic.  We have to bear in mind, however, that apart from the fact that the appellant is liable to be recalled to prison, he has against his name a conviction for murder and himself wishes to have a retrial.  Moreover, the general public interest in a proper determination of the circumstances of the shooting of Karen Reilly and Martin McPeake is an important factor."(pp.33/4)

 

The Court of Appeal concluded that, on the retrial, a complete rehearing of the case should take place, uninhibited by the earlier findings, at least some of which may well have been overtaken by subsequent forensic evidence.  The court gave its directions for a new trial in this way:-

"…we think it proper to order that the appellant be retried for the offences for which he was convicted. The judge on the retrial will not be bound by any findings of fact or rulings made by Campbell J on the previous trial, or by any views expressed by this court on the previous appeal or on this reference, and will be free to reach his own conclusions on all issues arising out of the evidence which may be put before him."

 

Mr Clegg submitted that this passage was per incuriam.  He acknowledged that during the hearing of the reference to the Court of Appeal (in which he did not appear) the court had been asked to order a retrial by counsel for the appellant because he wished "to clear his name" and that no point about double jeopardy had been taken.  He submitted, however, that this issue must be determined as a matter of law; if the evidence was not admissible because of the rule against double jeopardy, it could not become admissible merely because the accused had expressed a wish to be given the opportunity to clear his name.

If Mr.Clegg's submission to MacDermott LJ had succeeded the ambit of the retrial would have been substantially curtailed.  It would not have been open to the court to receive the new evidence about the tracer round or to consider any of the circumstances in which the first three shots were fired.  As MacDermott LJ pointed out, such a circumscribed trial would have allowed only a somewhat unreal examination of the reasons for the fourth shot, not least because of the nature of the defence rehearsed on behalf of the accused in the Court of Appeal on the reference.  It was the defendant's case that the fourth shot had been fired into the side of the car and not into its rear, as suggested by the Crown.  If the defendant had succeeded in raising a reasonable doubt as to whether his final shot had come through the rear of the car, the reasons for firing at the side of the car would have to be explored by the court. But if Mr. Clegg's argument had been accepted, that assessment would have had to be made in isolation from the circumstances in which the first three shots were fired.  In practical terms this would have been impossible.  The period of time which separated the firing of the first three shots from the fourth (if it was fired into the side of the car) was minimal.  The circumstances in which the final shot was fired could not be divorced from the other shots.  This is true, in my opinion, whether the last shot was fired at the side or at the rear of the car. The motivation of the accused in firing the fourth shot cannot realistically be segregated from what happened immediately before it.

Moreover, the accused's case was advanced on two fronts; firstly that he had not fired the final shot into the rear of the car but into the side and secondly that the shot which came through the side of the car caused the wound through which his bullet had passed.  If the accused raised a reasonable doubt as to the correctness of the latter assertion but not the former, it would be open to the court to conclude that the accused had fired a shot (albeit not the fatal shot) at the rear of the car. Such a conclusion could support a finding of guilt on the second count of the indictment.  On that narrow ground alone, therefore, I agree with MacDermott LJ that evidence relating to the reasons for Clegg's discharging all four shots must be admissible.

If evidence in relation to the circumstances of all the shots was admissible, evidence relating to the infliction of injury on Aindow by other soldiers was also inevitably admissible, in my opinion.  For the reasons which I have already given, this incident, if it was witnessed by Clegg, is potentially directly relevant to his motivation in firing at the car.  If the principle of double jeopardy does not preclude the giving of evidence about the firing of all the shots there is no logical reason that it should operate to exclude evidence about that incident.

The matter must also be considered in the context of the effect which the evidence may have, when admitted.  Although objection was taken to the admissibility of the evidence, the burden of the defence submissions before MacDermott LJ and before this court opposing the introduction of the evidence rested on its possible use to undermine the findings of Campbell J in relation to the justification for the accused's opening fire on the first three occasions. Counsel relied principally on the decisions in Connelly v DPP (1964) AC 1254 and R v Humphreys (1977) AC 1 and on two Australian cases in advancing the argument that the factual findings made by Campbell J could not be departed from by this court.  He submitted that the cases provided clear authority for the proposition that the rule against double jeopardy bars subsequent proceedings against the accused, not only for offences on which verdicts have been expressly returned in the previous proceedings, but also for alternative offences implicitly covered by those verdicts.  He also submitted that where in a prior proceeding an issue had been determined against the Crown, that issue could not be reopened in subsequent proceedings.  In support of this argument counsel relied mainly on the decision of the High Court of Australia in The King v Wilkes [1948] 77CLR 511.

The case of Connelly was mainly concerned with an examination of the circumstances in which the plea of autrefois acquit was available.  It was held by Lord Morris of Borth-y-Gest that the plea was available where the crime charged was the same or substantially the same as that on which the accused had previously been acquitted and that one test as to whether the rule applied was whether the evidence necessary to support the second indictment would have been sufficient to procure a conviction on an offence charged on the first indictment or some other offence on which the accused could have been found guilty.  Other members of the House of Lords considered that this situation was more properly to be regarded as one where the court would be entitled to exercise its power to prevent abuse of its process. It is not necessary to explore this debate further since, in my opinion, whether the principle is properly to be regarded as a species of autrefois acquit or as an abuse of process, it does not arise in the present case.  Here the accused is charged with murder and attempting to wound.  He was convicted of those offences on the previous trial.  This is not a case where the accused was acquitted of the charges now preferred against him on a previous trial or might have been acquitted on the previous occasion if those charges had been preferred. I do not consider, therefore, that the case of Connelly assists the accused.

In R v Wilkes the respondent had been charged with three offences (1) manslaughter of B.; (2) conspiracy with B.and P. to procure the unlawful miscarriage of B.; and (3) conspiracy with P. to defeat the course of public justice.  He was acquitted on the first two counts by a jury but convicted on the third count.  On appeal to the Court of Criminal Appeal his conviction was quashed on the ground of inconsistency between the verdicts; the Court of Criminal Appeal refused to order a new trial.  The prosecution sought leave to appeal against the acquittal to the High Court; it also appealed against the refusal to order a new trial. Dixon J expressed agreement with the decision to refuse to order a new trial. At p. 518/9 he said,

"I myself most certainly would have come to the same conclusion, namely, that in the circumstances a new trial should not be granted.  I would have done so because it would necessitate the presentation by the Crown either of the case on which the accused had been substantially acquitted or of a new case which had not been made at the first trial, a case moreover which, I should have thought, was highly improbable and a desertion of the assumptions which the jury's previous verdict seems to require."

 

and

 

"Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner….Such a question must rarely arise because the conditions can seldom be fulfilled which are necessary before an issue estoppel in favour of a prisoner and against the Crown can occur.  There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner.  The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding."

 

This judgment will require more detailed consideration presently but, in the meantime, it should be noted that Dixon J had in mind a number of criteria to be taken into account in deciding whether a new trial should be permitted.  Firstly, the presentation of the case proposed by the prosecution must be one on which the accused had been substantially acquitted.  Alternatively, if the prosecution proposed to present a different case, it would not be proper to allow that case to proceed if it invited the abandonment of assumptions on which the earlier verdict was reached.  Next, there required to be a prior proceeding determined against the Crown.  Finally, it was necessary that the allegations made by the Crown in the subsequent proceeding were inconsistent with the acquittal of the accused in the earlier proceeding.

In Mraz v The Queen [1956] 96 C.L.R.62 the accused was charged with the murder of a woman, the Crown case being that her death had been caused during or immediatelly after the accused had raped her.  The trial judge told the jury that before they could convict of murder they had to be satisfied that not only had the accused committed rape and in the course of doing so had caused the death of the deceased but also that the act was "malicious".  He further instructed them that if they considered that the rape had been committed by the accused and death was caused in the course of the act but was not malicious he should be convicted of manslaughter.  The accused was found guilty of manslaughter.  That verdict was quashed on appeal because of misdirection. After the appeal the accused was indicted for rape on the same set of facts.  He was found guilty and his appeal to the Supreme Court was dismissed.  On an application to the High Court for special leave to appeal it was held that the verdict of the jury of not guilty of murder involved as a matter of law a finding that the appellant did not commit rape and a plea of issue estoppel was made out. Under section 18 of the Crimes Act 1901-1951 (N.S.W.) the crime of murder was committed if the act of the accused causing the death was done during or immediately after rape.  Since the jury had found the accused not guilty of murder, it was to be presumed that they had concluded that it had not been proved that the accused had caused the death of the young woman during or immediately after the crime of rape.  Since the verdict of manslaughter had been quashed it followed that the jury's verdict of not guilty of murder involved (as a matter of law) a finding that the accused did not commit rape.  An indictment for rape was therefore inconsistent with that finding.

The possible application of issue estoppel in criminal cases was considered by Diplock LJ in Mills v Cooper (1967) 459,469C where he said,

"Th[e] general rule [that there should be finality in litigation] applies also to criminal proceedings, but in a form modified by the distinctive character of criminal as compared with civil litigation.  Here it takes the form of the rule against double jeopardy, of which the simplest application is to be found in the pleas of autrefois convict and autrefois acquit; but the rule against double jeopardy also applies in circumstances in which those ancient pleas are not strictly available; and it is in connection with the wider application that the High Court of Australia in particular in the cases cited (Rex v Wilkes and Mraz v Reg) has used the same expression as is used in civil proceedings: 'issue estoppel'.  I think with great respect that the use of that expression in criminal and civil proceedings alike may lead to confusion, for there are obvious differences - lack of mutuality is but one - between the application of the rule against double jeopardy in criminal cases, and the rule that there should be finality in civil litigation."

 

This was no more than an oblique reference to the Wilkes and Mraz cases and I do not construe Diplock LJ's judgment as endorsing without qualification the reasoning in those two decisions.  In any event I am satisfied that neither he nor any other member of the Court of Appeal suggested that the rule against double jeopardy barred subsequent proceedings for offences which had been implicitly covered by earlier verdicts or that it operated to prevent an issue being re-opened when that issue had been determined against the Crown in earlier proceedings.

In Reg. v Humphrys the House of Lords firmly rejected the suggestion that issue estoppel applied to criminal proceedings. Lord Hailsham considered that, while analogous to double jeopardy, issue estoppel was of quite different effect. Of double jeopardy he said:-

"In general, the doctrine in criminal law precludes the Crown from adducing evidence or making suggestions which are inconsistent with a previous verdict of acquittal when its real effect is determined."

 

It was submitted that in this case the 'real effect' of Campbell J's judgment was to acquit the accused of criminal liability for the first three shots.  Counsel argued that it was not open to the Crown, therefore, to make the case that the accused had not been justified in firing these shots.  He also submitted that the benefit to the accused of the acquittal on the charges of attempting to pervert the course of justice and obstructing a constable was lost if the Crown was allowed to adduce evidence about the incident involving the attack on Aindow.

I do not accept these arguments.  In the first place, Campbell J did not acquit the accused of murder.  In my opinion, the doctrine of double jeopardy arises only on foot of an earlier acquittal.  It does not apply where the accused has been convicted.  The reason for this is clear.  It would be unacceptable that the binding quality of an acquittal (which is, in effect, a declaration of innocence) should be compromised by the presentation of a case which casts doubt on the correctness of that decision.  This consideration does not arise where the accused has been convicted.  Furthermore, I do not believe that the doctrine of double jeopardy applies on a re-trial.  A re-trial is ordered where the appellate court considers that the original verdict is unsafe.  The conclusion that the issue of the accused's guilt or innocence should be re-examined lies at the heart of a decision to order a re-trial.  It would be inconsistent with that principle and repugnant to all notions of fairness that an accused should be allowed to cull from the earlier proceedings such findings as may favour him, having succeeded in having the verdict of those proceedings set aside because it was unsafe.  Such an exercise would be particularly obnoxious where, as in this case, the 'favourable' findings had been based - even to a limited extent - on a case made by the accused which could be shown to be wrong.

In my view, the accused is not deprived of any benefit due to him from his acquittal (on the charges of perverting the course of justice and obstructing a constable) by the receipt of evidence in relation to the attack on Aindow.  The purpose of adducing that evidence was not to impeach the propriety of his acquittal nor to suggest that he was guilty of those offences.  It was to challenge the truth of his claim that he did not observe Aindow being attacked.  If he did see Aindow being struck by another soldier this affects his creditwortiness generally but, more critically, it affects the credibility of the claim that he believed that Aindow had been struck by the car.  If it is concluded that Aindow was not struck by the car and that Clegg did not believe that he had been, it does not by any means follow that his acquittal on those charges was wrong.  It is true that the charges were based on the alleged falsity of the oral statement that he had seen the car driven towards Aindow in a manner which endangered him and that, as far as Clegg could see, Aindow had been knocked off balance.  Significantly, however, Campbell J held only that it was possible that the first two elements of that version might be true.  He expressly excluded from his rehearsal of the claims made by Clegg which he was prepared to accept as possibly true the allegation that the car appeared to hit Aindow. I concluded, therefore, that it was open to the Crown to adduce evidence of the assault on Aindow.

I would have reached that conclusion even if I had felt obliged to follow the reasoning of Dixon J in the cases of Wilkes and Mraz.  As it is, I do not feel obliged to do so.  As Lord Hailsham observed in Connelly, Dixon J had acknowledged that his remarks on the topic of issue estoppel in Wilkes were obiter and the case of Mraz involved a highly unusual set of facts.  In effect in Mraz the jury's acquittal of the accused of murder on a misdirection operated, as a matter of law, to preclude his subsequent conviction for rape.  I do not consider that that case propounds any general principle in relation to the doctrine of double jeopardy.

The factors outlined by Dixon J in Wilkes which he considered were to be taken into account in deciding whether to allow a new trial reflected the circumstances of that case.  The case for the prosecution had depended almost entirely on the word of an accomplice who had been granted a pardon.  He had been responsible for the victim's pregnancy and he testified that he had approached Wilkes to arrange that he procure a miscarriage.  After the woman had died Wilkes had, according to the accomplice, told him to give a lying story to the police about how that had come about.

In such circumstances it is easy to understand how the Court of Appeal decided that it was inconsistent for the jury to acquit Wilkes of involvement in the death of the victim but convict him of conspiracy with the accomplice to defeat the course of justice, for the conspiracy could only have arisen if Wilkes had been concerned in the attempt to procure the miscarriage.  In seeking to persuade the High Court that the Court of Appeal ought to have ordered a new trial, the prosecution suggested that the jury might have supposed that the attempted abortion had been carried out not by the accused but by an unnamed and unknown third party.  But, as Dixon J pointed out, this possibility had not been contemplated by the prosecution on the earlier trial and was, in any event, highly improbable.  The dilemma faced by the prosecution, therefore, was that on a re-trial they would have to present the case as originally framed (and the accused had effectively been acquitted on that case) or put forward a wholly unrelated and essentially speculative case.

The circumstances of the present case are entirely different.  The essential case against the accused remains the same as on the original trial viz. that he opened fire on the car when there was no justification for doing so.  The case has changed, however, in that now it is known that one of the accused's shots was fired when the car was approaching him and was more than forty feet from him.  That evidence is not only not in dispute, it originates from a defence witness.  It would be anomalous if it were to be excluded, which it would have to be if the defence submission was accepted.  The re-trial which receives this evidence does not involve "the desertion of assumptions" which the earlier verdict required.  Unlike the position in the Wilkes case, here there is new evidence which, if correct, shows that the claim made by the accused at the earlier trial that he did not fire until the car had appeared to hit Aindow could not be correct.  It could not be right to exclude that evidence where a re-examination of the accused's reasons for firing at the car is being undertaken in the course of a re-trial.  I am satisfied that it was correct to admit the evidence, therefore.

I was also satisfied that no unfairness to the accused would result from the admission of the evidence.  Mr. Clegg candidly acknowledged that this part of his submission depended on the proposition that if the evidence were admitted, it would involve "going behind" the verdict of the earlier trial.  For the reasons which I have already given I do not accept that argument.

The Factual Evidence

The briefing

(i) the security threat

The accused gave evidence that he had been briefed about 10.30pm on the evening of 30 September 1990.  The briefing took place in a portacabin outside the police station at Woodbourne.  In direct evidence he said that the briefing had been begun by Lieutenant Oliver and while it was taking place an "intelligence bloke" came into the room, interrupted the briefing and told Oliver that he wanted to speak to the assembled soldiers.  The intelligence officer/NCO then told the meeting (according to Clegg) that they must all be very vigilant that night because intelligence reports had been received that Provisional IRA were going to attack and that the attack was imminent.  This was the first time that an intelligence officer had entered the room to give such a briefing so far as the accused could recall.  The effect of the warning was to cause him to think that he could go out that evening and be the target of a terrorist attack.

Under cross examination, when asked whether he had ever mentioned this warning previously, Clegg claimed that he had told the senior counsel who had appeared for him at the earlier trial; counsel's response had been to tell Clegg not to worry about it, and he had not raised the matter during Clegg's evidence on the first trial.  Clegg said that he had not mentioned it to other members of the patrol because they had been present when the warning had been given.  When asked why he had not told the police about it during interview, initially he said that he had not done so because he believed that police intelligence would have been the same as that available to the army. When pressed on this point, however, he said that he was unable to explain why he had not told the police about the intervention of the intelligence officer/NCO or the warning which had been given.  

Lieutenant Oliver gave evidence that he had given the briefing on 30 September at roughly 10pm.  He said that he had visited the intelligence cell earlier in the evening and had been told that the state of alert about the prevailing terrorist threat "had gone up a level".  This meant either that an attack was imminent or that the period preceding a terrorist incident (described by the witness as "the run-up period") had begun.  He relayed this information to the men during the briefing.  No-one from the intelligence cell came to the briefing, according to Mr. Oliver.

Under cross examination he was asked to explain why he had not mentioned previously that he had briefed the patrol about the heightened threat but had raised it during this trial for the first time.  He replied that he had done so because he had first been asked about it during this trial.  He agreed that he was aware of the potential significance of this evidence in explaining what had happened that evening but claimed that he had only become aware of this after the earlier trial.  He suggested that his failure to appreciate this before then was due to his inexperience.

Lance Corporal Delorme gave evidence that Oliver had said during the briefing that he had been told by intelligence that there would be terrorist activity within the Lenadoon area that night.  John Findlay, a former lance corporal in the Parachute Regiment, said that they were informed during the briefing that something might be happening that night in the upper Lenadoon area.  He understood that to mean that some sort of terrorist activity was anticipated.

I am satisfied, as I have already said, that no intelligence officer or NCO entered the briefing room that night.  I am also satisfied that no-one told Clegg or any other member of the patrol that an attack was imminent. I am satisfied that Clegg's evidence that he told his senior counsel about such a briefing is untrue and is an unworthy and implausible attempt to explain an otherwise glaring omission from his evidence on the first trial.  At the time of that trial, the potential significance of this evidence must have been apparent to Clegg - as it would have been to anyone.  He had been charged with the murder of a passenger in a car being driven by a joyrider; if he was genuinely in a state of heightened alert and anticipation of a terrorist attack as a result of receiving what he claimed was an exceptional - indeed, unique - briefing, it is inconceivable that he would have failed to mention it at his earlier trial.  It is equally inconceivable that experienced senior counsel would have omitted to introduce such evidence if he had been told about it.

If Clegg believed and had grounds for suspecting that this car contained terrorists, this was of critical importance in explaining why he opened fire.  However, as I shall discuss presently, (in the context of Clegg's avowed reasons for opening fire) he was curiously reluctant to confirm that he had believed that the car in fact contained terrorists when asked about that in cross examination. He claimed to believe, however, that he was involved in a "terrorist incident".

I am satisfied that Clegg concocted the story about being briefed about an imminent terrorist threat as an ex post facto attempt to bolster his claim to have fired because he believed that Aindow had been struck by the car. I am equally satisfied that Clegg's reasons for failing to inform the police during interview about the alleged imminent threat cannot be believed.  It was entirely irrelevant that the police may have had the same intelligence as the army.  What mattered, if this claim was correct, was that Clegg would have had reason to believe that he and his colleagues were under attack from terrorists during the incident when he opened fire.  If that was the true position he would surely have given that account unbidden at the earliest opportunity and certainly when he was asked by police to account for having fired at the car.

The significance of the threat (if he had been told about it) was that it might have played some part in causing him to open fire.  Even if the police were aware of the existence of the threat, they could not have known about the effect it had on Clegg unless he told them about it.  The explanation that he proffered initially to explain his failure to tell the police about this special briefing does not withstand examination, therefore.  When considered with his explanation for opening fire his evidence on this topic is characterised by a willingness to hint at some significance in relation to the alleged imminent threat and a reluctance to articulate that significance.  I am satisfied that the reason for that reluctance is his realisation that, if the threat could be said to have played any part in his decision to open fire, it is beyond belief that he would not have told the police about it or given evidence of it during the first trial.  I am therefore reinforced in my conclusion that Clegg was lying when he claimed to have heard a briefing from an intelligence officer or NCO that there was an imminent terrorist threat.  The reasons for that lie are directly relevant to his proffered explanation for opening fire and I shall return to them when I deal with that topic.

I must also consider in this context the evidence of Lieutenant Oliver that he told the members of the patrol, including Clegg, that he had been made aware of an increase in the level of terrorist threat.  I found Oliver's explanation of his failure to give this evidence on the earlier trial unconvincing and I was not impressed by his self deprecatory suggestion that this was due to a lack of experience.  The significance of the evidence was inescapable.  The car which had been fired upon contained joyriders.  Oliver knew that by the time he gave his first account of what had happened.  If, despite that subsequently discovered fact, the soldiers opened fire believing when they did so that the car contained terrorists, the importance of the evidence that they had been told of an increase in the terrorist threat just before they went out on patrol was glaringly obvious. This was so even before the first trial. Its relevance at that trial could not have been in doubt if the case was to be made that the soldiers who opened fire believed that they were involved in a terrorist incident.

As I have already said, I am not satisfied that Oliver did tell the men whom he briefed that he had received intelligence that there was an increase in the level of terrorist threat; I strongly suspect that he did not but I do not feel able to say with certainty that he did not include this in the briefing.  In so concluding, I wholly discount the evidence of John Findlay whose testimony I found to be generally unworthy of belief.  I shall give my reasons for so concluding later.  I have been influenced to the view that Oliver may have said something about an increased threat by the evidence of Lance Corporal Delorme.  He gave a similar version to the police during interview to that which he gave in evidence.  While I am far from satisfied of the truth of that evidence I am not prepared to say that I am convinced that it is untrue.

It does not follow, however, that, if Clegg was told about any increased threat, that this played any part in his decision to open fire.  I shall consider this aspect when I deal with the reasons given by Clegg for firing on the car.

(ii)        the purpose of the patrol

Clegg claimed that he had not been told anything about joyriders before going out on patrol. Implicit in this claim, although never expressly stated, was the suggestion that the possibility of the car containing joyriders had never occurred to him.  He stated that he had been told that the patrol was to be dropped off on the Glen Road, they were to patrol down Lenadoon Avenue and then retrace their steps.  He knew that there was to be a VCP because this was standard procedure.

Under cross examination Clegg agreed that he was aware that joyriding was a problem in the Woodbourne area but claimed that he had never come across joyriders while patrolling in that area.  He had never heard the sound of joyriding while in the station complex.  He believed that it was likely that Lieutenant Oliver had told them that they were going to set up a VCP because that was a feature of every patrol and was usually referred to in the pre-patrol briefing.  He denied knowing that the purpose of the patrol was to set up VCPs in order to catch joyriders.  All that he had been briefed about was that they were to go to the Glen Road, patrol down Lenadoon and retrace their steps "for operational reasons".  That was all he knew about "the brief and the task in hand".  He agreed that on 3 October 1990 he had told police that this was the briefing which he had received.  In reply to me Clegg said that, so far as he was aware, the only reason that a VCP was set up that evening was to allow the bricks to move off in an orderly fashion.

Lieutenant Oliver gave evidence that he had been requested by Constable Gibson to assist in a patrol to detect joyriders.  The lieutenant agreed to this request after discussing the matter with Captain Bullivant, the operations officer.  The detection of joyriders "dovetailed" with what Lieutenant Oliver described as the "military objective" of the patrol.  This was to check for command wire and improvised explosive devices (CWIEDs). Oliver stated that he briefed his men that the patrol was to carry out a CWIED check and to establish a VCP.  He described the route that they were to take so that the brick commanders could mark that on their maps.  He claimed that he did not brief the men about joyriders.  He suggested that this would have "confused the purpose (sic) for which they, as soldiers, were on the ground that night".  The soldiers were not there to detect or deter joyriders, according to Oliver; they were there to do VCPs and to carry out CWIED checks.  To tell them about joyriders would risk having them spend their time detecting and deterring joyriders instead of concentrating on "the task in hand".  He told the soldiers that vehicles were to be used in the VCP; the decision to deploy vehicles had, Oliver claimed, been taken by him but it had been prompted by Constable Gibson's request for a joyriding patrol.  He did not tell the soldiers why he had decided to use vehicles, however.  When asked in direct examination why he had not done so, he replied that he did not justify to the soldiers under his command every decision that he made.

In reply to questions put by me Lieutenant Oliver confirmed that the primary duty of the army in a joint patrol was to act in aid of the police and to protect the police officer while he carried out his duty.  Members of a patrol would be aware of this but, according to Mr. Oliver, it was the invariable practice to withhold from them any information about what the police purpose was.  On the night in question, none of the other soldiers was told that a purpose of holding the VCP was to stop and detain joyriders.  Thus, although Corporal Gilbert was responsible, along with Constable Gibson, for stopping the cars at the checkpoint even he did not know that they were seeking to detain joyriders.  The only reason for withholding the information was, so far as Lieutenant Oliver was concerned, the need to prevent the soldiers from being distracted from the principal military task viz. the discovery of CWIEDs.

Oliver claimed that no-one on the patrol was told of the objective of stopping joyriders.  As I have already noted, even Corporal Gilbert was kept in the dark about this, according to Oliver.  Yet immediately after the Cavalier went through the VCP Corporal Gilbert moved an army vehicle so as to block the road.  Evidence about this was given by Oliver himself.  He said that the Cavalier had approached the VCP in a perfectly normal fashion and stopped in response to a signal.  Corporal Gilbert went to the driver's window and the car then sped away. Gilbert called after the driver.  I cannot believe that Gilbert would have moved a vehicle in order to effectively block the entire road if he did not know of the plan to intercept joyriders.

I did not believe Lieutenant Oliver's evidence that he told no-one of the plan to stop joyriders.  I found it quite unworthy of belief for a number of reasons.  He accepted that army vehicles were used because Constable Gibson had requested them in order to deal with joyriders.  He told the members of the patrol that vehicles would be used but claimed that he did not tell them the reason that they were to be used.  When confronted with the illogicality of this he suggested at first that he did not require to justify to the soldiers under his command every decision he took; later in his evidence he retreated from that suggestion to the ludicrous claim that soldiers were always kept in the dark about the police duty which they were there to facilitate.  That claim was quite inconsistent with his attempted defence of his own decision to withhold the information on the ground that it might distract the soldiers.  If it was the invariable practice not to tell soldiers what the RUC task was there was no occasion for him to exercise any discretion in the matter.

Oliver's claim that soldiers were never told what the police duty was to be was subsequently contradicted by Lance Corporal Delorme who gave evidence that he was briefed by Oliver that the police wanted to go into the gypsy camp and that he (Delorme) was to accompany the police officer. Delorme also said that he would expect to be told that the patrol planned to intercept joyriders if that indeed was its purpose.  In the first instance that information would come from the RUC officer accompanying the patrol but if he was not present at the briefing, then the information would be relayed by the briefing officer.

In any event the suggestion that the soldiers might be distracted was itself inherently improbable and on examination proved to be utterly unbelievable. Oliver knew that the VCP for joyriders could only be maintained for ten minutes or thereabouts.  Even if the soldiers had devoted their undivided attention to joyriders for all of that period, this could hardly be said to represent a substantial distraction from the search for CWIEDs which was due to take place principally while the soldiers were patrolling down Glen Road and into Lenadoon.  Moreover, the patrol took place during the hours of darkness in what was for some, if not all, of the patrol unfamiliar territory.  Most of them did not have the high powered Fakir torch which would have been necessary for a proper search.  Oliver suggested that some of the soldiers may have equipped themselves with their own personal torches but he had not checked whether these were available to those who were to carry out the CWIED searches.

The claims made by Lieutenant Oliver about the CWIED searches were further undermined by later evidence from Warrant Officer Bolton.  In 1990 he was a sergeant in 'A' Company of the Parachute Regiment.  He stated that he would not carry out CWIED checks at night.  Indeed he considered that it would be bad practice to do so.

I do not believe that CWIED checks were part of the patrol plan on the evening of 30 September 1990.  I am satisfied that Lieutenant Oliver manufactured a story about those checks in an attempt to explain his claim that he had not briefed the patrol about the true nature of the patrol.  I am convinced that he did brief his patrol that the VCP was being set up to try to catch and deter joyriders.

In arriving at that conclusion I have taken into account the evidence of John Finlay.  As I have already said, I found this witness's evidence wholly unreliable and incapable of belief.  I have also taken into account the evidence of Colin Williamson, formerly a reserve constable in the Royal Ulster Constabulary.  Mr Williamson was a neighbourhood constable attached to Anderstown RUC station in 1990.  It was suggested by Mr Clegg for the accused that the effect of Mr. Williamson's evidence on this topic was that members of a patrol would not normally be told of the reason or purpose of a VCP which was designed to intercept joyriders.  That submission was based on an isolated passage from the witness's evidence which, in my opinion, is wholly unrepresentative of the thrust of his testimony on this issue.  It is true that Mr Williamson said, in answer to Mr. Clegg, that in his experience army privates would not normally be told the reason for setting up a VCP but his later evidence painted a very different picture.  In reply to me he said that he believed that the primary team (which was V10A on 30 September 1990) would be aware that one of the purposes of setting up such a VCP was to detect stolen vehicles driven by joyriders and that he would have told the soldiers who helped him to operate the VCP that this was one of the reasons for the checkpoint.  So far from assisting the case that soldiers were not normally told that a VCP was being set up to intercept joyriders, it appears to me that Mr. Williamson's evidence supports the opposite conclusion.

The positions of the members of V10A  

Clegg gave evidence that when he dismounted from the vehicle at the Glen Road he and the other members of his brick "remained static".  He stood beside a line of boulders which were in the grass verge at the edge of the footpath.  He was able to see the VCP which was being operated by V11 in the vicinity of the bridge some distance away in a countrywards direction.  It was dark and there was no artificial light. V12 and V14 had moved off citywards as soon as they had debussed.  While he stood beside the boulders, a Vauxhall Cavalier and another car passed.

After some time the brick commander, Lieutenant Oliver, gave the signal to move by whistling.  Clegg was the third man in the brick and he claimed that he turned round to see where Private Aindow was; he could not see Aindow so he called out to him.  He then saw him emerge from the area of the VCP. According to Clegg, Aindow then crossed the road to the opposite side.

After the brick moved off Clegg heard a car approach.  He had been walking for about ten seconds at this stage.  He claimed that he turned round to look at it and saw it drive towards Aindow.  When, according to Clegg, the car appeared to hit Aindow he opened fire.  (The evidence given by the accused about what he saw and what actions he took will be examined in detail in later sections of this judgment; at present I am primarily concerned about his position on the roadway).  Although Clegg did not volunteer, during his examination in chief, whether he was walking on the road or the footpath, in answer to a direct question from his counsel whether he had stepped from the footpath at any time in order to fire he said that he had not.  After the car passed him Clegg claimed that he did not look in its direction again; he looked across the road, saw Aindow standing there in the firing position and crossed the road to check that  he was all right.  When he had done that he heard the brick commander, Lieutenant Oliver, give the order, "one zero alpha, on me" and he left Aindow and ran citywards following Lieutenant Oliver.

In direct evidence the accused described how he returned to the scene the following morning at the request of the police to take part in a reconstruction of the events of the night before.  He was asked to place himself in the position that he had occupied when he had fired at the car.  He said that he went straight to that position and that he was satisfied that the place chosen by him was accurate.  Aindow went to a position somewhere behind Clegg on the opposite side of the road.  He was unable to say where Oliver or Boustead positioned themselves.  He claimed that the distance between the place first chosen by him  and Aindow's position was "spot on" because Aindow had been well to the rear of him the night before.

When asked in cross examination how far he had been from the bridge having taken up his position after dismounting Clegg said that he was unable to remember.  He said, however, that he would be able to point this out on a map and he proceeded to do so.  He claimed to be able to establish that position because there had been boulders on either side of him.  It was pointed out to him that the boulders stretched for some forty five metres and that the place where spent cartridge cases were found and which had been attributed to his firing was also adjacent to the boulders.  He was reminded that Lieutenant Oliver claimed to have been beside the boulders as well.  It was suggested that it was impossible, therefore, for him to say with confidence where he had been by reference only to the boulders.  Although he was initially disposed to accept this, he steadfastly asserted that the place marked by him on the map was where he had been standing.  He was not prepared to accept, even as a possibility, that he had been standing near the point where the spent cases were found.  This had been marked C1 on the map produced by the prosecution.  Clegg remained adamant that he had been citywards of this point.  To defend that claim he said that he was able to locate it because of the distance that he was from the VCP. This was, of course, at odds with his earlier answer that he could not remember how far he had been from the bridge where the VCP was positioned.  He was then asked how far he had been from the VCP and he said that he was between 100 and 130 feet from it.  It was then suggested to him that this estimate put him well on the country side of the point which he had marked.  Despite this he continued to insist that he was on the city side of C1.  He sought to support that position by saying that at the reconstruction he had gone directly to the point he had marked on the map.  There he had been approached by a police officer who suggested to him that he could not have been in that position because a spent case had been found further countrywards.  Clegg claimed to have disputed this with the police officer and to have complied reluctantly with the instruction given by him to move to the area of C1.

When questioned by me Clegg accepted that the boulders would not help to pinpoint his position.  He agreed that most people in the conditions that obtained that night would find it impossible to estimate their distance from the VCP.  He was unable to articulate the reasons for his certainty that he was citywards of C1 but professed to be sure that he was.  It was put to him that C1 (which the Crown say was his position) was almost directly opposite C2, Aindow's position.  He did not dispute that but resolutely resisted any suggestion that he was in the vicinity of C1.  He agreed, however, that, if he was in the vicinity of C1, his entire account of how he came to fire at the car must be wrong.  He confirmed that, in interview by the police, he had said that he "shouted to Private Aindow who was behind me in the bushes at the side of the pavement".  He denied, however, that this signified that he knew where Aindow was before he shouted at him.

Constable Gibson gave evidence that as the brick moved off after the signal from Oliver, he (Gibson) was in the middle of the road.  One member of the patrol (who, it may be deduced, was Boustead) was to the constable's left.  A few feet behind him (some five or six) was Lieutenant Oliver.  A few feet further back (about ten to fifteen) and again on the left was another soldier. This must have been Clegg.  Almost directly opposite Clegg was the fourth member of the brick.  This was Aindow, although the constable did not know him by name.  Significantly, Gibson was not challenged on this evidence in cross examination although he was asked in general terms about the staggered formation usually adopted by soldiers on patrol and about the position taken up by the soldiers on the reconstruction.  He agreed that, on the reconstruction, the eight soldiers in V10A and V11 were fairly close to, if not precisely on, the places they had occupied the night before.  It is clear, however, that Clegg was asked at an early stage of the reconstruction to reposition himself at C1.  I consider that Constable Gibson was referring to his position at that point when he gave evidence about the positions of the soldiers on the reconstruction.

Lieutenant Oliver was asked about the formation of the brick as it began to proceed along the Glen Road citywards.  He said that Corporal Boustead was the front man on the left.  He suggested that Constable Gibson was behind Boustead on the footpath opposite.  He was behind Gibson on the same side as Boustead.  Clegg was also on the left behind him (Oliver). Aindow was on the opposite side of the road.  Oliver claimed that a distance of twenty to twenty five feet separated each member of the brick.  He thought that they would be in that formation twenty to thirty seconds after moving off.  He said that he thought that he was some fifty to sixty feet from Aindow when the car was approaching.  He would have "suspected" that Clegg was citywards of Aindow because Aindow was carrying equipment (either an Antler or a Sifter) and, since he was more experienced than Clegg, he would have known to be at the rear of the patrol at all times.  Boustead was approximately twenty five feet ahead of him, according to Oliver.

In cross examination Lieutenant Oliver said that he could neither confirm nor deny that Aindow had been in the bushes.  He should have been in the bushes if he was providing protection for those manning the VCP but not otherwise.  Later in his cross examination Lieutenant Oliver, when asked about the position of Aindow and Clegg and whether they were in formation, said that he did not notice that they were not there and so assumed that they were.

A matter of substantial importance in deciding where Clegg was standing was the evidence in relation to the discovery of the spent cases which were attributed to his firing.  One cartridge case was found on the road within the area enclosed by white tape and marked C1 on map C of Exhibit 6.  Mr. Gary Montgomery, forensic scientist, accepted that if one concentrated solely on that case to the exclusion of everything else it would be dangerous to rely on it as reliably indicating where the accused was standing.  A cartridge case on a hard surface such as a road can bounce and roll for a significant distance after discharge or it can be inadvertently kicked and dislodged from its initial resting place.

Three other spent cases were found in the grass verge by Constable Cowling.  He said that he marked these by tying a strip of white tape to a bramble.  This was different from the white tape enclosing C1.  That had been put in place by Detective Sergeant Stewart after he found the first spent case on the road shortly after the incident.  Constable Cowling's discovery had not been made until the following morning sometime after 9.17am.  Cowling had been instructed to make a search of the area by Inspector Lemon.  He was assisted by Constable Sergeant.  A radio log recorded at 9.47.22am that two cases had been found and at 9.52.06am that a third had been found.  The communication about the finds came from Inspector Hamill to Chief Inspector Brown.  He indicated that the cases were "all pretty well within the white tape".

Inspector Lemon gave evidence that he had been shown the cases in situ by Cowling and they were within the white tape.  This was not confirmed by Cowling who said that he had only shown them to Constable Sergeant. Furthermore, Cowling suggested that he discovered the cases some fifteen yards past the entrance to the gypsy camp (which was well short of the area C1).  Mr. Lockhart, a civilian mapper, claimed that he was shown the cases within the C1 area.  He could not remember seeing any 'individual' marking of the cases.

The evidence about the position of the three cases in the grass verge was far from unanimous.  The cases were not photographed in situ as they ought to have been.  Nevertheless, I have no doubt that they were found within the area of C1.  Inspector Lemon and Mr. Lockhart both assert that they saw them there.  I am satisfied that Constable Cowling is mistaken when he says that he only showed them to Constable Sergeant.  Inspector Hamill confirmed that Mr. Lockhart was present soon after the cases were found.  A significant find such as this should have been - and I am satisfied was - shown to the mapper.  Although that part of the tape at C1 which was on the road may have moved somewhat during the night there is no reason to suppose that the 'anchor' points where it was secured to the fence were altered.  I am satisfied, therefore, that the three cases located in the grass verge were close to the first case found on the roadway and that all four were discharged from Clegg's rifle.

Gary Montgomery gave evidence that, when tested, Clegg's rifle ejected cases six to eight feet to the right and back.  Dr. Renshaw carried out tests much later which suggested that the rifle's ejection pattern was to the right and forward some six to seven feet.  The latter tests took place after the rifle had been returned to service, however, and I consider that the tests carried out under Mr. Montgomery's supervision are more likely to be reliable.  Irrespective of which tests are to be preferred, I am satisfied that they, in combination with the evidence as to the location of the spent cases, establish that, at the time of firing, Clegg was standing in or adjacent to the area of C1.

I am reinforced in that conclusion by the other evidence about his position after he began to move off, having been given the signal by Oliver.  I am satisfied that Aindow was not a significant distance behind Clegg when the brick started to move from their static position.  I did not believe Clegg's evidence that he could not see Aindow when the patrol was given the signal to move.  I am satisfied that Aindow was in the bushes behind Clegg and within sight of him when the signal was given.  I am further satisfied that Clegg was virtually opposite Aindow when the Astra car approached.  I accept Constable Gibson's account of the respective positions of the various members of the brick.  I did not consider that Lieutenant Oliver had any reliable memory of the positions of Aindow or Clegg.

I have concluded that Clegg's evidence on the positions occupied by him after alighting from the vehicle and when the car was approaching was a farrago of untruths and impossible claims born out of a desperate bid to distance himself as much as possible from Aindow.  On the reconstruction he could not have located himself with the pinpoint accuracy he claimed.  His unwillingness to re-position himself when directed to do so by the police officer and his frantic determination to cling to his espoused position in defiance of the evidence betoken his recognition that his story depended on his claim to have been well in advance of Aindow.

I do not accept the submission made on his behalf that he would not have realised on the morning after the shooting the significance of his position vis-a-vis Aindow.  By that time he knew that the car had been driven by a joyrider.  He must have realised that there would be, at least, an inquiry into the shooting.  The need to establish that he was beyond Aindow and in a position to witness the 'apparent' collision would have been obvious from the outset.

The Vauxhall Cavalier

Constable Gibson described how, as they were in the process of setting up the VCP, a Vauxhall Cavalier car drove through at speed.  He and some of the soldiers had to jump out of the way.  He noticed that some members of the patrol raised their rifles to the aim position but they did not open fire.  Under cross examination he agreed that the manner in which the car was driven could be described as reckless.  He also agreed that it presented a potential danger to himself and other members of the patrol but that the risk of injury was avoided by the prompt action of himself and the other members of the patrol jumping clear.  The constable had concluded that the Cavalier was being driven by a joyrider.  It was suggested to him that the manner in which the Astra car had been driven bore none of the hallmarks of a joyrider.  He agreed.  He said that he had believed that it was a stolen vehicle solely because it was a Vauxhall Cavalier SRi, a type favoured by joyriders.

Clegg's observation of the Cavalier was, on his account, fleeting.  He had been looking across the fields to the north of the Glen Road when he heard a car come down the road; he looked at it over his left shoulder and it swept past.

Lieutenant Oliver claimed that there was a significant difference in the manner in which both cars had been driven.  He suggested that the Cavalier had not endangered anyone's life.  He elaborated on this in cross examination.  He said that the Cavalier did not go near any soldiers.  It was then put to him that at the first trial he had said about the Cavalier,

"And then it drove away swerving round the vehicles but racing away…it was driven in an erratic and I would say dangerous manner."

 

Lieutenant Oliver sought to explain this evidence by saying that he had gone on to point out at the first trial that the danger did not materialise because, as far as he could see, there were no soldiers in the path of the Cavalier.  When it was put to him that Corporal Gilbert had given an account of seeing soldiers jumping out of the way of the Cavalier, he said that he would still maintain that the Astra was driven more dangerously than the Cavalier.  He attempted to draw a distinction between the danger which the Cavalier presented and which could be avoided by the soldiers jumping out of the way and the danger created by the Astra which could not, he implied, be avoided in like manner.

John Finlay also gave evidence about the way in which the two cars were driven.  He said that the Cavalier was driven in an "erratic but controlled" manner.  He pointed his weapon at the car, at the same time switching on the Fakir torch which was attached to his rifle.  He caused the torch to flash on and off.  The car turned away from the soldiers in his vicinity.  He did not shoot at it, he claimed, because the vehicle "heeded any warnings that were given to it and veered away from the soldiers".

I found the debate about the difference in the way in which the two cars were driven largely irrelevant to the issues which I had to decide.  Clegg was not challenged on his account that he had virtually no opportunity to observe the Cavalier.  If he was right about that then the Cavalier's course through the VCP could not have provided him with any real insight into the likely identity of the occupants of the Astra.

The only real significance of this subject was the manner in which Lieutenant Oliver and Mr. Finlay dealt with it.  I found their attempts to distinguish between the danger presented by the Astra and that of the Cavalier unconvincing - indeed specious.  Lieutenant Oliver had not seen the soldiers who had to leap out of the path of the Cavalier; indeed he had thought that the only soldiers that it had been near were those at the VCP.  Even when he was told of how soldiers in the other bricks had had to rush to avoid the Cavalier he was still prepared to assert that it was less of a danger than the Astra.  He had been unaware that soldiers had raised their rifles at the Cavalier but plainly did not, when he discovered this, feel inhibited in making an assessment of the relative risks that the two cars appeared to present.  He actually saw the Cavalier stop at the VCP in just the way that the Astra subsequently did. Despite this he clung to the assertion that the Cavalier presented no risk.

Finlay's description of the course of the Cavalier as "erratic but controlled" I found bizarre, to say the least.  His practice of raising his rifle and pointing it at an approaching car was equally strange.  I simply did not accept his attempt to explain why he opened fire on the Astra but did not fire on the Cavalier.  On his own account, he was able to step out of the path of the Astra. He claimed that he fired because he apprehended that another soldier and the civilians from an Escort car which he had stopped earlier would be struck by the Astra.  But the civilians and the other soldier were behind Finlay and in at least as good a position to step out of the way of the Astra as he was.  Moreover in order to hit the civilians the Astra would have had to travel on a collision course to the Escort with the obvious risk to the driver and occupants that this would entail.  I simply did not believe Finlay's evidence on this matter.  I found him a most unreliable - indeed deliberately untruthful - witness.

The course taken by the Astra

In direct evidence Constable Gibson stated that, after moving off down the Glen Road when the static VCP had ended, he heard the sound of a car approaching from the countrywards direction.  There was nothing unusual about the way in which it approached but it came to an abrupt halt.  When he looked round Constable Gibson saw a soldier signal the car to stop and it stopped on its correct side.  It was about twenty feet short of the soldier who had signalled it to stop.  The soldier walked towards the driver's side.  The car's headlights were on.

At this stage the constable turned away.  He had taken a couple of paces when he heard the sound of loud revving of the car's engine.  He looked back again and saw the car pass the soldier whom he had seen walking towards it.  He heard quite a lot of shouting from the members of V11 to the effect of, "Stop" or "Stop that car".  The car was accelerated towards the constable; according to him it was straddling the white line in the centre of the road.  He could see that it was not going to stop and he flicked on his torch, not in an effort to stop the car but to alert the driver to his presence.  He then moved fairly quickly through the four or five steps needed to get him to the side of the road and out of the path of the vehicle.  The car maintained a straight course with its wheels still straddling the white line.  Any deviation from that course was very slight, a matter of inches only; at no time were all four wheels entirely on one side of the line.  The car was probably travelling at more than thirty miles per hour when it passed the constable, in his estimation.  He did not lose sight of it.  After it passed him he stepped back into the road to try to note its registration number.  He then became aware of shooting from behind him.  He saw sparks coming from the rear of the car which he presumed were bullet strikes.  Throughout his observation of the car before, during and after the firing it had maintained a course along the centre of the road, straddling the white line until it disappeared from view round a left hand bend.

Under cross examination Constable Gibson confirmed that the Astra appeared to be accelerating as fast as its engine capacity would allow.  He agreed that the car would only have been in his view for approximately thirty seconds. He also agreed that if he had stayed in the centre of the road his life would have been at risk.  He had stepped briskly to the side of the road out of the path of the Astra.  He accepted that he had said in his original statement that he had run to the side of the road but described this as poor "terminology".  He also accepted that he had gone to the far side of the footpath even though he would have been quite safe, on his account, if he had moved to the centre of the offside carriageway.

Constable Gibson accepted that in his original statement he had said that the car had swerved from side to side.  He said that he had considered this at the time to have been an exaggeration but, as a result of his experience in the previous trial, he now accepted that it was a lie.  He had exaggerated because he did not want to get anyone into trouble.  He confirmed, however, that no-one had asked him to lie or exaggerate.  It was put to him that if he had wished to exaggerate in order to assist the soldiers it would have been necessary to say that the car had been driven at one of the soldiers.  He agreed.  It was put to him that his perception at the time he made his first statement and "in the days that followed" was that the vehicle swerved from side to side.  He accepted that suggestion.

This exchange was cited by the defence in their closing written submissions in support of the proposition that the vehicle did not travel in a straight line.  It was also heavily relied upon in oral submissions.  The answer given by Constable Gibson must be considered in the context in which it appears, however.  Shortly after giving this answer Constable Gibson said that he could never have answered honestly that the car had swerved.  In other words, he was always of the view that the car had not swerved.  He then went on to explain that he had said that the car had swerved because he was exaggerating and that he did not believe this to be true when he said it.  Subsequently he recognised it to be a lie.  This was a consequence of the cross examination by Clegg's counsel on the first trial.

It was suggested to Gibson that the purpose of that cross examination was to get him to agree that the car had swerved and that it would be incongruous if it should have the effect of persuading him that he had in fact lied in saying that it had swerved.  This suggestion  rather misses the point, in my opinion.  When one persuades oneself that one's false statement is merely an exaggeration a firmly put cross examination (even if it has a different objective) may demonstrate the lack of truth in that statement.  This is how I understood Constable Gibson's reply concerning the effect of the cross examination at the earlier trial.  That understanding is confirmed by Campbell J's judgment in the first trial where he said,

"Under cross examination the constable agreed that in his first written statement he had described the car coming at high speed towards him 'swerving from side to side' and in his second statement he had said that it 'deviated slightly from left to right'.  He accepted counsel's suggestion that the first suggestion was a lying one." (emphasis added) p.15

 

In any event, apart from the single exchange cited by counsel for the defence in their closing submissions, Constable Gibson remained adamant that the car did not swerve.  It appears to me that it would not only be dangerous, it would be wrong to isolate this single exchange and to portray it as representing the broad effect of Constable Gibson's evidence on this point.  Taken as a whole, I consider that his evidence was consistently to the effect that he was always convinced that the car did not swerve.  He accepted, however, that the car was deviating enough to make the tyres screech.  He also accepted that in interview with the police the description of the movement of the car had been altered from 'moving sideways' to 'swerving' and, although he was unable to remember whether he or the interviewers had instigated that change, he must have been happy with it at the time.  He agreed that if the car had swerved from side to side it would have represented a potential danger to the soldiers.  He also accepted that the moment the shooting began he dived to the ground.

Although Constable Gibson accepted that, if his exaggeration was going to help the soldiers, it would have had to be to the effect that he saw a car drive directly at them and further accepted that he had not been asked by anyone to lie or exaggerate, I do not consider that these concessions necessarily impair his creditworthiness.  If the constable had witnessed the assault on Aindow and was initially unwilling to reveal this to his authorities, it was clear that if he told them that the car drove straight down the road this would cast doubt on the claim which the soldiers obviously intended to make viz. that Aindow had been struck by the car.  By saying that the car swerved from side to side he could avoid giving active support to the conspiracy without challenging the account which he knew the soldiers were likely to give. I do not accept, therefore, that because Gibson has said at an earlier stage that the car swerved I am now obliged to reject his evidence that it did not.

Clegg described how, after he had been given the signal to move off and had been walking for approximately ten seconds, he heard the sound of a car engine "dropping a gear" and then accelerating.  He heard members of V11 shouting, "Stop".  He turned round and focused on the car.  It was "just slightly on the wrong side" of the road; he explained that by this he meant "not fully on it".  He elaborated on this description by saying that the vehicle was just slightly on the wrong side of the road when he first saw it but it was then driven "directly then more (sic) on the opposite side of the road".  It was driven at speed towards Aindow.  As Aindow turned round the car appeared to hit him.  He could see that Aindow had been knocked off balance.  He opened fire at that point aiming at the windscreen.  He fired three shots at the windscreen. The car then came at an angle directly across the road towards Clegg.  He fired a fourth shot as the car was "coming across to go past [him]".  He said that he did not see the car after it had passed him.  For reasons which I shall give in due course I shall set out this part of Clegg's examination in chief verbatim,

"Q. Was there anything between you and the car?

A. Em, not that I can recall, sir, no, but I didn't, you know, I didn't see this  car after it had gone past me.

Mr. Justice Kerr: Sorry?

The witness: I didn't see the car, sir, you know, as it had gone past me.

Mr. Justice Kerr: As it went past you?

The witness: Yes.

Mr. Justice Kerr: Just wait a moment.

The witness: Sorry.

Mr. Justice Kerr: Was that as it went past you or after it went past you?

The witness: As it were approaching to go past me, sir.

Mr. Justice Kerr: You didn't see it?

The witness: No, not after, not after that, after I had fired my fourth shot, it had gone, you know."

 

He claimed that when the car passed him he applied his safety catch and then looked straight across the road at Aindow.  He did not look after the car.

Under cross examination Clegg again said that the car, when he first saw it, was just off the white line, "slightly over to the opposite side of the road".  It was on the city side of the bridge.  Later, however, he said that the nearside wheels were either on or just over the white line (on what would have been the correct side of the road).  He estimated that the car was travelling at forty five to fifty miles per hour.  He did not see Aindow fire at the car as it approached him although he agreed that if that had happened he would have seen it.  He also accepted that, if his account was right, Aindow would not have had the chance to fire his weapon.

Clegg said, in answer to Crown counsel, that he fired the first three shots at the windscreen of the car when it was pointing towards the kerb on Aindow's side of the road.  He accepted that none of his bullets had struck the windscreen.  He fired his last shot into the front wing as the car was approaching his position.  He denied that he looked towards the car after it passed him even though he had taken in at a glance that Aindow was standing upright and firing, apparently after the car.  He said that he was not bothered about the car even though he believed he had struck it with at least some of his shots.  He just did not think about the other members of the patrol.  His concern was focused on Aindow.

Lieutenant Oliver said that not long after he moved off he became aware of a car stopped at V11's position.  He saw Corporal Wood approaching the driver's window and another soldier (Private Treacy, he presumed) a few feet behind Wood.  Both soldiers got to within inches of the car.  He then saw the car drive off causing Private Treacy to "backpedal" fairly quickly.  The car accelerated rapidly.  The lights of the car were shining brightly.  At first the wheels of the car straddled the white line but it was more on the wrong side of the road than the correct side.  After it had travelled about twenty or thirty metres the car appeared to be further onto the wrong side of the road.  Not long after that the car was entirely on its wrong side.

At this point, according to Lieutenant Oliver, Private Aindow was approximately in the position marked C2 on map C of Exhibit 6 (which is the point where Aindow positioned himself on the reconstruction).  Oliver's impression was that Aindow was standing on the carriageway.  At that time. however, Oliver did not know that there was a footpath at the side of the road. He could not think of any reason that the driver of the Astra would have failed to see Aindow since he would have been well illuminated.  He assumed that the car was still accelerating because of the engine noise.  He claimed that as the car approached Aindow it took "a fairly violent swerve" towards him. Aindow's body moved violently and disappeared from view.  As far as Oliver was concerned, the car had hit him.  It then started to cross to its correct side towards Boustead.  Again there was nothing to prevent the car's driver from seeing him and Boustead.  Oliver cocked his weapon when the car struck Aindow and fired before the car reached Boustead.  Boustead was standing on the carriageway and, according to Oliver, stepped backwards and tripped over the kerb.  He stumbled but did not fall.  Oliver said that he did not see Aindow firing notwithstanding that he was in a position to observe Aindow turn to face the car and to conclude that the driver of the car should have seen Aindow. After the car passed Boustead it travelled for a short distance on its correct side of the road; it then appeared to be in the centre of the road before disappearing from view.

I do not accept the evidence of Clegg and Oliver about the course which the Astra took.  It was accepted, realistically, by counsel for the accused that the driver of the car could not have intended to drive directly towards Aindow.  He suggested, however, that it was possible that Peake might have veered in Aindow's direction unwittingly because he saw Clegg, Oliver and Boustead on the nearside of the carriageway and steered right to avoid them.  That theory does not square with the evidence.  The Astra was displaying main beam.  All the evidence suggests that within a short time of leaving the VCP it was in the middle of the road.  Aindow would have been at least as visible to the driver as would Clegg; the other members of the brick would have been further away than Aindow and less readily seen.  Moreover, it is clear that Aindow must have been facing the Astra when it was some distance from him because he fired on it.  Yet, according to Clegg and Oliver, the Astra was driven directly towards Aindow and travelled sufficiently close to his position to create the impression that it had struck him.  Oliver said that there was nothing to prevent the driver of the Astra from seeing Aindow.  That item of evidence I do accept.  If the car was being driven directly at Aindow the driver would have been confronted by a soldier who was not only in his path but who was aiming a rifle at him.  It is inconceivable that a joyrider would have driven directly at that soldier thereby making himself a virtually unmissable target.

Of even greater importance on this issue is the evidence of Constable Gibson.  I accept his account that he was in the centre of the roadway when the Astra approached.  I also accept that he moved to the same side as Aindow in order to avoid the car.  Indeed that evidence has never been disputed.  It is impossible to believe that, if the car was bearing down on Aindow, Gibson would have moved to that side of the road. It is, of course, true that Gibson was some distance from Aindow and therefore further from the car than he but if the car was travelling towards Aindow it is beyond belief that Gibson would move in that direction.

Furthermore, if the Astra was driven directly at Aindow and if, as is now known he did, he fired at it there is no explanation for Clegg and Oliver failing to see that.  The fact that both deny having seen Aindow firing makes it impossible to believe that they were looking towards Aindow as the car approached.

It was suggested by the defence, by way of alternative to the theory outlined above, that Peake might have deliberately swerved from side to side in order to dissuade members of the patrol from moving on to the road to attempt to stop him.  I find this suggestion inherently improbable.  The only person on the carriageway in front of the car was Gibson.  He moved out of its path.  The car had a clear passage at that stage; why then would the driver swerve from side to side?  He would surely have driven straight ahead to effect the quickest possible escape.  In any event, once again this theory simply does not square with the evidence.  According to Oliver and Clegg the driver drove directly at one soldier and then swerved to drive directly at another.  Such a course was far more likely to have caused the soldiers to do something about the car than to have encouraged them to ignore it.

Although I am entirely satisfied that the description given by Clegg and Oliver of the course taken by the Astra is wrong, it does not follow that, on that account alone, I can be satisfied that the car was driven down the middle of the road without deviation to either side.  The only evidence which supports that suggestion is that of Constable Gibson. I have no doubt whatever of the honesty of this witness.  He gave his evidence in a transparently truthful way.  It cannot have been easy for him to have admitted to his superiors that he had failed to give a full account initially.  The easier option for him would have been to adhere to his initial version of events.  I cannot think of any reason that he should change his story other than a wish to give an honest account.  I am satisfied that he sought to give truthful and accurate evidence; unlike other witnesses he was prepared to make concessions, to admit to having lied and to accept forthrightly that he had been wrong in a number of instances.  I cannot, however, express complete satisfaction on the basis of his evidence alone that the car did not deviate to some extent as it was driven down the road.  While I am satisfied that it did not take the course described by Clegg and Oliver I cannot be sure that it did not swerve somewhat as it travelled down the road.

Gibson accepted that if the car swerved it would have constituted a potential danger to the soldiers.  This is, of course, true but a potential danger should not be regarded as synonymous with a real and immediate risk of injury that would justify firing on the car.  Central to the constable's account is the statement that he was in the path of the car and was able to step out of its way. Even if he had run to the side of the road, it is clear that he did not experience particular difficulty in avoiding the vehicle.  He was further from the car as it approached than any of the soldiers of V10A but he was in the centre of the road whereas they were on either side.  If Aindow, for instance, was not on the footpath as the car approached he would certainly have been able to step on to it in the time that it took him to fire.

While I cannot be certain that there was no deviation of the car as it travelled down the road, I am satisfied that such deviation as may have occurred was not substantial.  I do not believe that it drove straight at Aindow. To do so would have been lunatic.  Not only would it have involved the driver heading straight for a soldier who was aiming a high powered rifle at the car, it would also have required him to set the car on a collision course with the pavement.  It may have been physically possible to veer away from the footpath before colliding with it but there does not appear to be any sensible reason that Peake would have headed directly towards the footpath.  He did not need to do so in order to avoid Clegg, Oliver and Boustead and he was bound to have seen not only Aindow but Gibson in his path.  Indeed if he veered towards his offside in the manner claimed by Clegg and Oliver that would have involved him heading in the direction that Gibson had taken to get out of the way of the car.  I do not believe that that happened.

Nor do I believe that Clegg did not look after the car when it passed his position.  His determination to maintain that ultimately impossible claim is exemplified by the passage from his direct evidence which I have quoted above (on page 62).  He resolutely refused to admit looking after the car even when pressed as to the illogicality of that claim.  In order to sustain it he described how he was preoccupied by Aindow's welfare.  This predominated in his mind to the extent that he did not think to look towards the other members of the brick or to see whether the car, at which he had fired four bullets and which he believed he had hit, had been affected by his actions.  Alone this account was incapable of belief.  Taken with his further claim that he went across the road to Aindow while the latter was still firing after the car it becomes risible.  He accepted that Aindow must have been firing after the car.  Despite this he crossed the road, inevitably (although Clegg was not prepared to accept this) exposing himself to the risk of being hit.  That risk was obvious if, as I have found, Clegg had been standing directly opposite Aindow and crossed the road from that position.  It was even more dangerous to cross from the position that Clegg claimed to have been in vis-a-vis Aindow.  From that position he would have been walking almost directly into the line of fire.

Clegg may have crossed the road to Aindow but I am satisfied that, if he did, this took place later when the firing had ceased.  Even if he had thought the car had struck Aindow, which I am satisfied he did not, it would have been foolhardy to the point of utter recklessness to cross the road to a man whom he could see firing a weapon until that firing had finished.  I did not consider that Clegg was the type of person who was so indifferent to his own safety as to take such a pointless risk.

Furthermore, I do not believe that he applied his safety catch at the time that he says he did.  According to him he did that even before he looked across the road towards Aindow.  When he looked across (after applying the catch) he saw that Aindow was standing up and firing in a citywards direction.  Even on his own account therefore, the car was still being fired upon when he engaged the safety device.  Why would he have done that?  Although it was not his first explanation, he suggested that it would have been necessary to engage the safety catch before moving towards Aindow.  As I have already said, I do not accept that he ran across to Aindow until the firing had ceased.  More importantly, however, I cannot believe that a soldier would deliberately disable his weapon while his colleagues were continuing to engage a car which Clegg now claims to believe was part of a "terrorist situation".

I am convinced that Clegg clung to these twin claims (that he had not looked after the car and that he had applied his safety catch) in order to promote the suggestion that he did not have the opportunity to fire after the car as it travelled down the Glen Road.  I am satisfied that his evidence in relation to both was untruthful.

The shots fired by Clegg

Clegg claimed that when he saw the car approaching Aindow he placed his weapon in his shoulder and cocked it.  When the car appeared to strike Aindow he opened fire for the first time.  He aimed at the windscreen.  He fired three shots.  He fired a fourth as the car "was coming to go past" (sic) him.  He did not fire after the car had passed him.  He claimed that Aindow was turning round as he (Clegg) placed the weapon in his shoulder.  When Aindow turned round the car was "on him". Clegg saw him lose balance and at that stage he fired.

During cross examination he said that he fired the first three shots in quick succession at the windscreen and the fourth shot into the wing of the car. The car was still pointing towards the footpath on Aindow's side of the road when he fired the first three shots.  He agreed that he now knew that he had not hit the windscreen.  He accepted that he had always said that his last shot was fired into the wing of the car.  He had aimed at the wing.  He did not fire into the rear nearside door of the car.  He aimed at the wing because this was "the area of the car which was approaching" him.

Clegg's evidence about the shots fired by him is demonstrably wrong on a number of counts.  In the first instance it is indisputable that he fired either his first or second round when the car was at least forty feet from him in a countrywards direction.  This much is clear from the evidence of Dr. Renshaw, the ballistics expert called on Clegg's behalf.  He has testified that the shot which caused the hole designated Hole 18 by Mr. Montgomery was caused by a bullet fired from Clegg's weapon.  It was fired when the vehicle was forty to fifty feet from the firer.  The round fired was a tracer round.  It must have been the first or second shot fired by Clegg, therefore.  Clegg must have decided to fire that round at least 0.4 of a second before it was discharged.  Mr. Haag, the ballistics expert called by the prosecution, has said (without challenge) that this is the minimum period required to conceive and execute the decision to fire. Various estimates of the speed of the vehicle at the time that it was passing V10A have been given.  I am satisfied that it was travelling at a minimum speed of thirty miles per hour.  The car was at least fifty seven feet from Clegg when he decide to fire, therefore.  It was probably a good deal further than that but it was certainly no less.  The car cannot have reached Aindow, therefore, when Clegg decided to fire.  The shot which Clegg claimed he fired into the wing of the car did not strike the wing.  Ironically, however, another shot (which, according to him, must have been aimed at the windscreen) did strike that part of the car. Clegg is unquestionably wrong in his account of these matters.

I am satisfied that his evidence about firing the first three shots must also be rejected.  He claimed that when he saw Aindow lose balance he fired, aiming for the windscreen of the car.  But if he had done so he would have been firing towards the very area where Aindow had been standing moments before.  To have fired at the windscreen of the car at that point would clearly have imperilled Aindow.  I do not believe that Clegg did so.

Furthermore I do not believe Clegg's evidence that he fired his last shot at the wing of the car.  He claimed to have aimed at the wing but was quite unable to explain why he should have done so.  When asked by me what he would achieve by shooting at that part of the car he replied that he did not know. He could not say why he had not fired again at the windscreen apart from suggesting that the car was  close to him when he fired.  But if the car was approaching him from Aindow's side of the road when this shot was fired (as he has claimed it was) the wing would be, at most, only marginally closer than the windscreen. If, on the other hand, the car was side on to him when he fired one could understand how it might have been difficult to take aim at the windscreen.  This is not how Clegg described the way in which the car passed him, however.

It emerged in cross examination that Clegg heard fire (which he presumed came from Aindow) before he looked across the road.  Then, on looking towards Aindow he saw him firing.  He claimed to have crossed the road while Aindow was still in the firing position; indeed, Aindow still had his rifle in the aim position when he arrived at his location, according to Clegg.  He also heard firing coming from his left i.e. from where Oliver and Boustead were. Despite this, he claimed never to have looked to his left nor to have seen Oliver or Boustead throughout the whole firing episode.  This is, quite simply, unbelievable.  One glance at Aindow would have told Clegg that he had not been seriously injured.  In those circumstances it is beyond belief that he would have firmly eschewed the chance to observe what the others were doing, that he would have ignored the car and that he would have effectively ruled himself out of further participation by applying his safety catch - particularly if, as he claimed, he genuinely believed that he was caught up in a terrorist situation.

To have behaved in the way that Clegg claimed to have done, even allowing for the exigencies of the situation and the fraught and frightening circumstances in which he found himself, would have been entirely unnatural and I am convinced that his account of what happened when the car passed him was untruthful.  I am further convinced that this untruthful account was given by Clegg because he wished to create the impression that he could not have fired after the car.

Constable Gibson has given evidence that Clegg did fire after the car.  He has said that he was first aware of shooting when the car passed him.  The first soldier whom he observed firing was on the right as one faces citywards.  This must have been Aindow.  He then looked to the opposite side of the road and saw the three remaining members of V10A all with their rifles in the aimed position.  His evidence on this point is of critical importance, in my opinion and I will quote it verbatim, therefore:-

"I looked to the opposite side of the road and I could see the three remaining members of Victor 10 Alpha. They all had their rifles, again in the aimed position. They were all standing, and there were flashes coming from their weapons.  I can't recall exactly which weapon had a flash, just that flashes were coming from their weapons.  I looked in the direction of the car and I could see what I would describe as sparks coming from the car, which I assumed it (sic) was the car being hit by the bullets."

 

Constable Gibson was not directly challenged on this evidence during cross examination.  He was asked to and did confirm, however, that the moment he became aware of the shooting he dived to the ground.  He stayed down until the shooting was over.  He looked over his shoulder to see the soldier who was behind him (i.e. Aindow) and he looked to the left, "not completely over [his] left shoulder" to see the soldiers on the other side of the road.  At that stage (i.e. when he was looking to right and left) he could see what he presumed were the bullet strikes on the car.

When Gibson gave this evidence during cross examination it was not suggested to him that he did not see the soldiers firing; indeed it was put to him that, since he had to look over his shoulder at events occurring behind him, he must have been facing citywards.  Thus, so far from challenging his account that he saw the soldiers firing, the defence used that evidence to seek to establish that Gibson was facing citywards before he turned to see what the soldiers were doing.  Of course the failure of the defence to challenge this evidence does not establish its correctness - and it is fair to say that Mr. Clegg QC, in his closing submissions, suggested that it should not be accepted and that it had been clear to everyone, including Constable Gibson, that Clegg has denied throughout that he ever fired at the car after it had passed him.  Mr. Clegg argued that the evidence of Gibson was so unreliable generally that it could not be relied upon in support of the proposition that Clegg had fired after the car and I propose now to examine that submission.

The defence mounted a multi faceted attack on Gibson's evidence and his credibility generally.  It is important to consider that challenge carefully since his evidence that Clegg fired after the car is of pivotal importance.  It is the only non scientific evidence which suggests that Clegg fired after the car, although, as I shall shortly discuss, it is not the only evidence that requires to be evaluated in this context.

The first principal criticism made by the defence of Gibson's evidence related to his account about the course of the Astra.  I have already touched on this topic in an earlier section of the judgment but it warrants more detailed consideration now.  The defence criticism of Gibson's evidence on this part of the case appeared to have two aspects.  Firstly, it was suggested that his claim that the initial account which he gave to the police (of the car swerving) was merely an exaggeration was indicative of unreliability at least.  If the car never swerved (as he now alleges), to suggest that it did was clearly a lie, not an exaggeration.  The failure of Gibson to acknowledge that from the outset could not be redeemed by his later claim to have recognised it as a lie after cross examination.  That later claim was itself implausible since the purpose of the cross examination was to demonstrate the falsity of the suggestion that the car had not swerved.  Secondly, his admission that his perception in the days after the accident was that the car had swerved was again an indicator of his unreliability.  In any event, the defence submitted, that admission made it impossible to conclude that the car had not swerved.

I have already stated my conclusion that I could not be satisfied on the basis of Gibson's evidence that the car did not swerve.  His evidence on this point is not of the calibre that one would require in order to be convinced of that.  I do not accept, however, that it betokens his unreliability as a witness generally. I do not find it untoward that Gibson described his first account as an exaggeration.  He accepts that the car deviated somewhat; to describe that as swerving is an exaggeration.  It may also be a lie and, as I have already pointed out, Gibson appears to have accepted that when the suggestion was put to him during cross examination in the earlier trial.

It is true that he also accepted the suggestion put to him by counsel for the accused in this trial that his perception in the days following the incident was that the car had swerved.  But this must be seen in the context of his later answers that it would never have been correct for him to say that the car had swerved.  I am not prepared, on account of that earlier reply alone, to conclude that in all other aspects of his evidence he must be regarded as unreliable.

Gibson was also criticised for having described his movement to the side of the road to avoid the approaching car as "stepping briskly" when he had originally said he was  running.  I really cannot accept that this has any significant effect on his credibility.  In the circumstances of this case the distinction is a fine one, as is illustrated by the fact that the constable was able to flick on his torch at the approaching car before beating a retreat to the side of the road.  If he was able to do that (and it was never suggested to him that he wasn't) it is clear that the approach of the car did not cause him to leap from its path.

It was suggested that Gibson's undeniable error as to when firing began also raised serious doubts as to the reliability of his evidence generally.  I do not accept that.  The incident happened extremely quickly. It would have been entirely natural for Gibson's attention to be focused on the car itself as it came towards him.  It is clear that at least two shots were fired at the car as it approached V10A.  I am satisfied, as I have already said, that Clegg did not fire three shots at the windscreen when the car was in proximity to Aindow.  It may well be that no more than two shots were fired at the car as it approached. Even if more than two were fired, it does not, in my opinion, follow that Gibson's entire evidence should be regarded as suspect because he was not aware of those shots.  He had flicked on his torch to alert the driver to his presence; then he had moved briskly to the side of the road.  Shots may have been fired while he was doing either or both of those things.  It is certain that shots were fired very shortly after that and I do not find it at all surprising that Gibson may not have absorbed the fact that firing had begun or that he may have assimilated the earlier shots with those later shots of which he was aware when he tried to recall them.

Finally it was claimed that Gibson had clearly been in error when he said (in direct examination) that he had stepped out into the roadway after the car had passed in order to note its registration number.  This could not be reconciled, it was suggested, with his having dived to the ground as soon as the shooting started.  I accept that Gibson must be mistaken about this evidence. Having initially said that he had stepped out, he later suggested that his movement on to the road occurred after he had crouched on the ground.  He was aware that shooting had begun by that stage.  It is impossible to believe that he would have stepped on to the road in those circumstances and, indeed, he himself was prepared to accept that when challenged on the point in cross examination.  Again, however, I do not believe that his error about this necessarily destroys his credibility on unrelated matters.  In particular, I do not accept that his evidence about the soldiers firing after the car cannot be relied on because he has made an error about his movements after the car passed.

Before reaching a conclusion on Constable Gibson's evidence about the soldiers firing after the car it is necessary to recall that the entire episode lasted only about thirty seconds; that it occurred in extremely frightening and difficult circumstances and that a considerable period of time has passed since that night. Moreover the fact that he has been mistaken in his recollection of some matters is relevant to though not conclusive of his credibility.  I bear all of these matters closely in mind.  I must also keep in mind, however, the clarity of the constable's evidence on the point and the graphic picture painted by him of the soldiers firing after the car and of what appeared to him to be bullet strikes on the car.  The impression created by this witness and the manner in which he gave evidence are also of critical importance.  I have already observed that he was, to my mind, a witness of obvious honesty.  I am satisfied that he genuinely sought to give accurate evidence and I consider that this factor is of substantial importance in assessing the creditworthiness of his evidence on this crucial issue.

In deciding whether I am satisfied to the necessary standard that Clegg fired after the car I must also consider the account which he gave; an account which I have found to be untruthful in a number of material particulars.  Before reaching that view I have recalled that the circumstances for Clegg were also fraught and frightening and that the passage of time would make reliable recollection difficult for him as well.  I have also borne in mind that the accused has no previous criminal convictions.  As someone with a hitherto unblemished record he is entitled to the twofold presumption that he is more likely to be telling the truth than someone with a criminal record and that he is less likely to have committed the offences charged than someone who has previous convictions.  Making every allowance for these factors I have nevertheless felt impelled to the conclusion that Clegg's frequently declaimed denials that he even looked in the direction of the car after it passed were incapable of belief and could not be explained by lapse of memory or on any other innocent basis. In his case also the manner in which his evidence was given was of considerable importance in forming the conclusion which I have reached.  He was unyielding in his claim not to have looked at the car after it passed him but was utterly unconvincing when he tried to explain why he had not done so.

One must remember, of course, that there may be reasons for lying which are not necessarily inconsistent with innocence.  A lie produced in reaction to a suggestion put to a defendant does not, of itself, establish the truth of the assertion made.  I am unable to think of an innocent reason that Clegg should lie about this matter, however, and I consider, therefore, that his untruthful evidence may be regarded as corroborating the evidence of Constable Gibson.

The reasons given by Clegg for firing

Clegg said that when he saw the course that the Astra took he believed that he was in a "terrorist situation".  He did not spontaneously relate that to his decision to open fire, however.  He had been prompted to cock his weapon by his apprehension that the car was going to hit Aindow but, according to him, he did not open fire until (as he believed) the car had actually struck Aindow.  When asked the direct question towards the end of his examination in chief why he had fired he said, "because this car … I believed … had hit Private Aindow, my colleague".  He said that he believed that he acted in accordance with the Yellow Card.

Under cross examination he confirmed that his knowledge that the Woodbourne area was one where there was a high level of terrorist activity combined with the briefing he had received led him to the conclusion that the Astra was part of a terrorist situation.  He was then asked by counsel for the Crown to explain why he had opened fire.  The following exchange ensued:-

"Q. You see, what I want to know from you is, just tell me shortly, why did you open fire so we can have that clear at the outset?

A. Because, sir, to me, the car was a danger, right, driven directly at Private Aindow, and to me the car had struck him, you know, and it's quite difficult because everything happened so fast, but you know, I can see it in my mind now, that this car was driven at him, you know, and I am thinking bloody hell, you know, well I believed it hit him.

Q. And then?

A. Well then I opened fire, sir.

Q. Why?

A. Because, sir, this car had, it were a danger, right, and I acted, you know, within the rules and regulations that I (interrupted)

Q. I know you acted in faith of the Yellow Card.

A. Well I acted in my training, sir, what I'd been taught and everything, you know.      

Q. Yes, but what was it that caused you to pull the trigger?

A. Because I believed that Chris had been hit by the car.

Q. Right. Not because you thought it was a car full of terrorists?

A. Right, fine, but (interrupted)

Q. Well…?

A. I understand what you are saying but, you know, you're in that area, you know, I thought this car were a terrorist situation.

Q. But look, Mr. Clegg. The case you have always made until yesterday - -

A. Right, sir.

Q. - - was that you fired at this car because you thought Aindow had been hit.

A. Yes, sir.

Q. You believed that he had been knocked off balance, you saw him knocked off balance.

A. Right, sir.

Q. And you then decided that you would fire at the car.

A. Right, sir.

Q. Now, yesterday for the first time we hear about terrorist situation.

A. Right, sir.

Q. Now, what I want to be clear about is this, did you fire at the car for the reason that you've always given, namely, that you thought Aindow had been knocked off balance, or did you fire at the car because it was a car of terrorists?

A. Well, I fired at the car because it were a threat, you know, this car is going to knock down someone, you know, and it were I believed Private Aindow, but all that in one scenario, is the fact that you are patrolling this area which is unfortunately high in terrorist activity, you know, and that is your main focus, you know, that is you're patrolling there and that is your main focus, it is terrorism, to deter terrorism and that's what I assumed it were.

 

…..

 

Q. ….Did you fire at this car because you thought that you had seen Aindow knocked off balance - -

A. Yeah, I did,sir (interrupted)

Q. Let me just finish the question - - or did you fire at the car because you thought it was a car containing terrorists?

Mr. Justice Kerr: Those are not necessarily mutually exclusive.

Mr. Weir: I accept that, my Lord.

The witness: I fired at the car, sir, because this car were being driven directly at Private Aindow's direction, I believed his life were in danger, and you know, it hit him, so I opened fire.

Mr. Justice Kerr: Did you believe that the car contained terrorists?

The witness: I can't - - well yeah, at that time, I didn't know, you know, what this bloody car were.

Mr. Weir: No. At the time you opened fire - -

A. Yes, sir.

Q. - - did you believe that it contained terrorists or is that something which has occurred to you since?

A. No, I believed that this were a terrorist situation.

Q. No, I asked you the question, Mr. Clegg, about five times; I'll ask you once more; if you don't want to answer it I won't ask you it again. Did you believe that this car contained terrorists at the time when you fired at it?

A. I didn't know, sir, I just thought that this car - it were a terrorist situation, and I'm trying to answer for you.

Q. What do you mean a terrorist situation? I mean how could it be a terrorist situation if it didn't contain terrorists?

A. Well, I didn't know that it didn't contain terrorists.

Q. Did you think it contained terrorists?

A. Not in the time that I had (witness clicks fingers) seconds."

 

From this passage it can clearly be seen that the accused was reluctant to espouse, as a reason for opening fire, a claim that he believed that the car contained terrorists.  He made the incongruous assertion that he believed that he was involved in a "terrorist situation" but he was unable to explain why, if he genuinely thought that, he did not also consider that the car was occupied by terrorists.  The most revealing answer is perhaps the final one quoted above.  I am satisfied that the accused, whether because he did not have time or for whatever reason, did not form any view about the identity of the occupants of the car. I am further satisfied that he did not consider that he was in a terrorist situation.  He may have been told at the briefing that there was an increased terrorist alert for that night but I am convinced that this did not play any part in his thinking when he was confronted by the Astra.

I have already stated that I am satisfied that the car did not drive directly at Aindow as claimed by Clegg and Oliver and that it is not possible that they were looking in Aindow's direction as the car drove towards V10A.  It follows that I do not accept - indeed am satisfied of the falsity of - the reason given by Clegg for opening fire.  He did not see the car driving directly towards Aindow nor did he see Aindow lose balance. Both claims are untrue.

The assault on Aindow

It was not disputed that an assault on Aindow took place.  Neither Constable Gibson nor Mr. Heaney was challenged on their account that a soldier was chosen to be the victim of an attack by other soldiers.  I am satisfied that such an attack took place and that its purpose was to cause an injury which would appear to have been inflicted by the car.  The soldier selected for this was Aindow.  I am also satisfied that the car did not collide with Aindow.  It did not drive directly towards him.  It did not give the appearance of having knocked him down.  He did not lose balance nor did he appear to fall.

I am satisfied that Clegg did not believe that the car struck Aindow.  He did not even look in Aindow's direction as the car drove through V10A's position.  Yet he chose Aindow as the one about whom to suggest that he had been struck by the car.  Clegg claimed that he knew nothing of the attack on Aindow.  If that were true, it would be the most remarkable coincidence.  It would mean that Clegg quite fortuitously chose someone who was also selected by other soldiers for precisely the same reason.

I cannot be certain that Clegg actually witnessed or participated in the assault on Aindow.  Constable Gibson could not say positively that all the soldiers in V11 and V10A were in the group that he saw when he looked back. Clegg's evidence about his actions after the car passed further fuel the suspicion that he either saw or became aware of the assault on Aindow, however.  He claimed that he crossed the road and asked Aindow if he was all right and whether he had been hit. If, as I have held, Aindow had not been hit and Clegg did not suspect that he had been hit, it is quite unbelievable that such an inquiry was ever made.  It is also inconceivable that Aindow would have replied, as Clegg claimed he did, that he had been hit but that he was all right.  I am satisfied that no such conversation took place.  But this is the version which Clegg gave, not only in evidence but also during interview on the afternoon of 3 October 1990.  Why did Clegg tell that lie?  In my view, the only possible explanation is that, at least by the time he was interviewed Clegg knew about the assault on Aindow.  He probably knew of it well before this.  His actions after the shooting certainly suggest that he did.  He claimed that after speaking to Aindow he ran after Oliver, following the latter's command.  He never mentioned Aindow's injury to Oliver nor did he draw to Oliver's attention the fact that Aindow was unable to keep up.  He made no effort to check on Aindow's condition later that evening nor did he even attempt to find him, despite (on his version) having run across virtually into the line of fire to ask how he was when Aindow and the others were firing at the car.

I strongly suspect that the reason that nothing was exchanged between Oliver and Clegg about Aindow is that both knew very well what had happened to him.  I am certain that Oliver did.  I accept Constable Gibson's evidence that both he and Oliver stopped and turned round when shouting was heard and that Oliver cannot have failed to witness what was seen and heard by Gibson.  Moreover Oliver sent a radio message at 23.36 (when the shooting must just have ended) which was recorded as follows:-

"Contact.  Glen Road.  Joyrider tried to hit his team. Shots returned.  Vehicle going down Hannahstown Road."

 

Oliver was quite unable to explain why such a message had been sent since, at the time the incident occurred, he did not believe (he claimed) that the car was being driven by a joyrider.  Furthermore, Oliver claimed that he was certain that Aindow had been hit by the car.  Both these claims were transparently false.  Oliver knew that Aindow had not been hit by the car and I am certain that he saw him being assaulted by another soldier.

I cannot be certain, however, that Clegg witnessed that incident as it was taking place but I am satisfied, for the reasons I have already given, that Clegg knew about the assault on Aindow by the time he was interviewed on 3 October.

The removal of Karen Reilly from the Astra

Lance Corporal Delorme removed Karen Reilly from the rear seat of the Astra. He had found her sitting behind the driver's seat.  Her feet were in the footwell behind that seat.  She was lying so that her back was on the squab of the seat.  Her right shoulder was about six inches above the seat and her face pointed upwards.  Her head was behind the front passenger seat.  It was resting on the rear seat.  Having removed the girl from the car he took her some two to three metres away from it and there he and other soldiers administered first aid.  He laid her on her back on the roadway, checked for and found a pulse, cleared her airway and loosened the clothing around her neck. He then placed her in the three quarters prone position.  Corporal Gilbert and Corporal Wood then carried out cardiac compression and mouth to mouth resuscitation.  In order to do this they had turned Miss Reilly on to her back again.  The lance corporal had been given a medical pack but he was not able to remember if he had applied this or whether someone else had done so.

 

 

The Scientific Evidence

          I do not propose to rehearse, even in summary form, all of the enormous volume of scientific evidence given in this case.  The evidence which will be referred to below has been selected not necessarily for its intrinsic importance but because of its immediate relevance to the issues which I have conceived it necessary to decide.  I have, of course, reviewed and carefully considered all the scientific evidence given whether I have referred to it or not.

The pathological evidence

The post mortem findings

Professor Jack Crane, the State Pathologist for Northern Ireland, carried out the autopsy on the body of Karen Reilly at 5.40pm on 1 October 1990.  He concluded that the cause of death was bullet wounds to the trunk.  He found three wounds to the back which, moving from left to right, he designated Wounds 2, 3 and 4.  Wound 2 was triangular in shape.  It was 10mm long and the base of the triangle was approximately 5mm.  It was located some 2 cm to the right of the midline of the thoracic spine at about the level of the vertebral body T5.  A sliver of metal was found in the wound.  This was removed during the autopsy.  To the right of Wound 2 was an oval hole 27mm x 22mm (Wound 3).  This was some 6 cm to the right of the midline of the spine, again about the level of T5.  Wound 4 was located over the blade of the right scapula.  It was 3mm in diameter.  A minute fragment of metal was embedded in this wound.  It was also removed.  Both wounds required to be dissected in order to remove the pieces of metal.  All three wounds on the deceased's back were entrance wounds.

Professor Crane also found an exit wound on the right breast, some 7cm above and 4cm external to the nipple.  In line with this wound was a bullet wound on the inner side of the right upper arm.  This was again an entrance wound.  The exit wound associated with this was found 8cm below the top of the right shoulder.  Professor Crane therefore concluded that the bullet which caused Wound 4 had exited from the breast and passed through the right upper arm causing the entrance and exit wounds described.

The deceased had also suffered an abrasion on the right cheek and the right ear.  Professor Crane considered that this injury had been caused by forceful contact with some part of the interior of the vehicle.  He did not believe that it was possible to say whether the injury had been caused before or after the deceased had been shot.  He thought that the abrasion could have been caused by the car having accelerated rapidly.

A bullet was found in the deceased's abdominal cavity near the under surface of the liver.  It had ploughed a track through the liver.  The bullet had entered through Wound 3, according to Professor Crane.  He was now aware that ballistic tests had established that this bullet had been discharged from Clegg's rifle.

Wound 2 had been caused, the professor believed, by the metal fragment which he had found embedded in it.  In his opinion, Wound 4 had been caused by a bullet travelling orthogonally at the time that it entered the body i.e.it had been a nose on strike.  The piece of metal removed from this wound was described by the witness as ovoid in shape.

Professor Crane concluded that the bullet which caused Wound 3 had been travelling at a relatively low velocity.  He reached that conclusion because greater damage to the liver would have been expected if it had been struck by a high velocity bullet travelling at normal speed.  Moreover, once it had passed through the liver, its energy had been spent since it did not progress further. The professor thought that the reason for the loss of velocity was either that the bullet had struck an intermediate object before entering the body of the deceased or that it had been fired from a considerable distance.  He suggested the bullet may also have been retarded by striking the ribs and organs in the body.  The bullet had struck the body travelling side on.

The witness stated that the pieces of metal discovered in Wounds 3 and 4 could not have found their way there by contamination i.e.by having entered the wounds some time after the wounds  had been sustained by the deceased.  In the first place, there was no other obvious cause of the wounds; secondly, considerable force would have been required to cause the fragments to be embedded as they were and, finally, one would have expected the surrounding skin to have been abraded if the fragments had entered the wounds after they had been created.  Since both wounds required to be dissected in order to remove the fragments of metal it was clear that the fragments were firmly embedded. Professor Crane was of the opinion, therefore, that the fragments must have been propelled into the wounds.

The professor considered that Wound 4 had been caused by a bullet which had passed through metal. It might also have passed through glass but, if it did, it must have passed through metal as well because the fragment found in the wound had been propelled there by the bullet which caused Wound 4. Having inspected the Vauxhall Astra car, he concluded that Wound 3 was consistent with the bullet which caused it having come through the rear of the vehicle and having passed through the rear seat before striking the deceased.  The bullet could have come through Hole 4 in the rear of the vehicle.  (This hole was caused by a bullet which entered the rear of the car in the vicinity of the boot lock, passed through the two sheets of metal comprising the boot and then entered the passenger compartment via the rear seat upright). Professor Crane considered that, if the bullet which passed through Hole 4 had fragmented, it could not have struck the deceased because no evidence of her having sustained injuries from bullet fragments had been found.

He believed that to express any view about the position occupied by the deceased at the time that she was struck by the bullets would involve speculation since she may at that moment have been moving of her own volition or involuntarily.  With the added complication of the speeding car it was impossible to say where she might have been when she was struck.  It was likewise impossible to say whether she had been struck first by the bullet which caused Wound 3 or that which caused Wound 4.

Under cross examination Professor Crane confirmed that the body had not been X-rayed.  He agreed that ideally all bodies in shooting cases should be X-rayed since very small fragments of bullets may be in the body and may not be detected during dissection.

He accepted that the size and shape of Wound 4 were consistent with a direct hit without the bullet having struck any intermediate object.  The bullet which had caused Wound 4 had fractured the humerus, the main bone in the upper arm.  This was, the professor confirmed, a fairly substantial bone.

The bullet which caused Wound 3 had fractured the fifth, sixth and seventh ribs.  It had then travelled forwards and downwards.  It had gone through the chest cavity, perforating the right lung, the diaphragm and the right side of the liver.  It had lodged beneath the liver and had been recovered from that position.  Professor Crane did not accept that the direction of travel of the bullet was "deeply downwards".  He produced a diagram which he had prepared some time before which, he said, illustrated a range of directions within which the bullet may have travelled.  He was unable to remember when he had prepared the diagram.  It became clear, however, that it had never been produced to Crown counsel.  It had not been provided to the defence either.

Professor Crane was cross examined at some length about this document and about his claim that the bullet had travelled in a slight downwards direction.  I do not propose to rehearse that cross examination at any length.  It was suggested to the professor that he was defensive about the line which he said the bullet had taken because he realised that if the track of the bullet was sharply downwards this presented difficulties for the prosecution theory (to which he subscribed) that Wound 3 had been caused by the bullet which came into the car through Hole 4.  The witness rejected this suggestion, pointing out that, in giving his evidence about the course which the bullet took, he was not concerned whether the bullet came through Hole 4 or through the side of the vehicle.

It was put to Professor Crane that it would be very difficult to position a body in the rear seat of the vehicle in an alignment which could receive the Hole 4 bullet so as to allow it to travel through the body along the track found on post mortem examination.  He did not agree.  He thought it was perfectly possible for a body to be in such a position.

Professor Crane confirmed that he was aware that, on the prosecution theory, the bullet which came through Hole 4 was the last to strike the deceased.  He also knew that the Crown case was that the first bullet to strike the deceased had come through the rear nearside door.  This bullet had, according to the Crown, emerged into the passenger compartment through the ashtray on that door and had created a hole which had been designated Hole 8; it had then, the Crown suggested, struck the deceased at the site of Wound 4.  The professor agreed that for this bullet to cause Wound 4 it had to enter the deceased's back and travel upwards.  It was put to him that, while not impossible, it would be very difficult to align the body of the deceased so that it could receive the bullet from that hole in Wound 4.  Professor Crane was not prepared to accept that this was difficult.  He felt that it was not for a pathologist to assess whether such an alignment was easy or difficult.  The ease with which the body could be aligned to receive the bullet was difficult to assess; the most that he could do was to deduce whether it was possible.  It was possible, in his view.

The professor also warned against estimating how likely it was that the shot through Hole 8 might have caused Wound 4 without having regard to the situation within the car at the time that the deceased sustained the gunshot wounds.  That situation would not have been static; it would have been a dynamic process contributed to by the rapid acceleration of the car and the movement of the girl within it.  He therefore advised against "placing too much emphasis" on the position of the occupants at the time that the shots were sustained.

On re-examination, Professor Crane said that one would imagine that Miss Reilly would be cowering inside the car when shots were being discharged.  She might well have been lying across the seat.  He believed that it was possible, if she sustained Wound 4 through Hole 8 first, for her to get into a position to sustain Wound 3 through Hole 4.  He said that the track of Wound 3 should not be regarded as a reliable guide for the trajectory of the bullet because the bullet itself would be very unstable at that stage; moreover, the bullet could easily be deflected by colliding with parts of the body.  In particular he believed that the bullet had probably struck the ribs which could have caused it to deflect.

The defence pathology evidence

The evidence adduced by the defence in relation to the wounds suffered by the deceased and as to how they might have been caused was in two parts.  It consisted of oral testimony from Dr. Ian West, head of the Department of Medical Forensics of King's College, Guy's and St. Thomas' hospitals, and a demonstration involving the use of a live model and a Vauxhall Astra car similar to that driven by Martin Peake on the night of the incident.

Using the model to illustrate the course taken by the two bullets, Dr. West said that the bullet which caused Wound 4 had entered the deceased's back in the region of the fifth to sixth ribs.  It had travelled through the chest cavity and passed between the first and second ribs, exiting from the upper/outer part of the right breast.  It then re-entered the inner aspect of the right arm, fractured the humerus and emerged on the outer aspect of the arm.  He considered that it was difficult to plot precisely the angle of the track of the bullet because movement of the right shoulder would alter the position of the ribs but he was of the view that the bullet which caused these injuries was travelling "upwards and outwards".

Wound 3 was caused by a bullet striking the area of the fifth, sixth and seventh ribs.  It then passed downwards through the right lung, onwards through the right leaflet of the diaphragm, then through the liver exiting finally near the gall bladder.  Dr. West acknowledged that an estimate of the trajectory of the bullet depended on the posture of the body at the time it was struck. With that qualification, he then demonstrated on the model what he believed was the bullet's likely course.  This was a reasonably pronounced but not steep downwards path from the point of entry to the position occupied by the bullet when discovered on autopsy.  Dr. West said that the liver was at quite a high level within the body and was concealed by the ribs; the dome of the diaphragm was also at quite a high level.  The angle of travel was, therefore, not as steep as one might expect.

Dr. West expressed the view that the deceased could have sustained Wound 3 from a bullet passing through Hole 8 if she had been lying face down across the seat base with her head between the seat squab and the front passenger seat.  He was unable to see how a bullet passing through Hole 8 could have caused Wound 4.  He had considered the possibility that a shot causing this wound might have been fired through the open area of the nearside door (open because the window glass had been broken) after Wound 3 had been sustained. He believed that this was possible if the deceased was upright with her body angled.  On this scenario, the deceased would have received Wound 3 while lying face down on the rear seat and then would have sat up and faced the offside of the car when she sustained Wound 4.  With my permission Dr. West then used a live model to demonstrate the two positions which the deceased would have had to occupy in order to sustain the wounds in the manner postulated.

He also described the position which, according to him, the deceased would have had to occupy in order to receive Wound 3 through Hole 4.  He suggested that the deceased would have had to be in a position across the rear seat so that her feet were in the area of the space between the two front seats and the upper trunk was acutely angled across the seats.  He stated that he could demonstrate this by using the live model but he was not asked to undertake that exercise.

Under cross examination at the demonstration, Dr. West confirmed that, on his theory, the deceased would have to raise the upper half of her body after sustaining Wound 3.  He said that persons who sustain gunshot injuries react in a variety of ways; some of these were quite unpredictable.

Dr. West suggested that the appearance of Wound 4 indicated that that it had been caused by an undamaged bullet.  He reached that view because the entry hole was surrounded by an abrasion collar which was characteristic of wounds caused by undamaged bullets.  If a bullet was substantially damaged before causing a wound, one would expect the wound to be irregular in shape or to have an irregular abrasion collar.

Asked about the track of bullets within the body, Dr. West said that while it is possible for bullets to travel in a straight path "like an arrow", frequently this did not happen.  If a bullet strikes bone, the course of the bullet can be diverted.  Furthermore when the bullet passes through the lung this can make it impossible to reconstruct the path taken by the bullet through the body.  In relation to Wound 4 he said that he was unaware of the bullet striking anything which would have made it divert but he was not able to say that it had not been diverted.  He believed that this bullet would have fragmented when it struck the humerus.

Dr. West gave as his opinion that the metal fragment found in Wound 4 was not associated with the bullet which caused the wound.  If it had been, he would have expected the fragment to have been driven much deeper into the body.  If the fragment had adhered to the bullet as far as the point of entry he would have expected some distortion of the margins of the wound.  He believed that the fragment "arrived in the wound at a different time" from the bullet.  This could have been the result of contamination.  While the deceased was being resuscitated, her back was exposed.  It was possible that small fragments of metal had contaminated the skin and when a pack was pressed against the wound the fragment became embedded in the wound.  Contamination could also occur during post mortem examination while the body was being cleaned.

In relation to Wound 2, Dr. West considered that because of the regular appearance of its edges it was more likely to have been caused by an item with a regular shape rather than an irregular fragment such as had been removed from the wound.  Both he and Dr. Renshaw believed that the steel penetrator from a bullet (which has a conical shape) may have created the wound.  To promote this theory Dr West had created a computer image superimposing a photograph of a penetrator on an enlargement of the wound.  This was produced and the witness suggested that it demonstrated a good correspondence between the appearance of the wound and the shape of the penetrator.

During the resumed cross examination in court following the demonstration Dr West acknowledged that he had previously mooted a theory that Karen Reilly might have received Wound 4 while she was sitting on the offside of the rear seat and then, as she fell backwards after being shot, sustained Wound 3 fired through Hole 8.  He now accepted that this theory was untenable because the two shots could not have been discharged within the time that would have been available but maintained that, solely from a pathological viewpoint, that scenario was entirely feasible.

It was put to Dr. West that when the rod had been inserted in the simulated Hole 8 during the demonstration it traversed the model's body diagonally.  He did not accept that proposition and pointed out that, in any event, the hole was not in the correct position to simulate Hole 8 in the car used for the demonstration.  He then said, "at the end of the day it is a demonstration, one could have moved her body through an infinite number of minor variations".  He agreed that if the car was being driven at speed and was swerving that this would cause 'continual shifts' in the positions of its occupants if they were not restrained by seat belts.  It was suggested to him that for the purpose of his demonstration he had selected one position from thousands of possibilities.  He agreed that there was 'quite a number' of possible positions and that he had chosen one based on 'an incident in time'.

Dr. West said that the penetrator which he believed could have caused Wound 2 might have been in the body at the time of autopsy and been missed. It was extremely small and might even evade detection by X-ray.  He considered that it was also possible that the penetrator fell out of the wound.  He agreed, however, that a deformed penetrator such as was found in the deceased's clothing could not have caused the wound.  In support of his theory that the penetrator might have caused the wound, Dr. West stated that he did not believe that the metal fragment removed from Wound 2 could have been alone responsible for the wound.  This had a dished shape with ragged teeth around most of its perimeter and would not have produced the regular angle at the base of Wound 2.

Dr. West agreed that, apart from the possibility of Miss Reilly being struck by the penetrator, there was no evidence of her having been hit by any other part of a fragmenting bullet.  If her body had not received the bullet which passed through Hole 4 (whether it was intact or fragmented) Dr. West was unable to say where the bullet ended up.  He accepted that if it did not strike an intervening object, it would have struck the radio console at the front of the car below the dashboard.

It was put to Dr. West that the deceased could have been propelled forward by the bullet which caused Hole 4 striking her at Wound 3 and that her head could thereby have come in contact with something which caused the injury to her head.  He accepted this, commenting that the bullet, travelling on its side, created a large hole, struck several ribs and would cause an impact equivalent to a heavy blow to the deceased's back.  This could have propelled her forward.  He believed that it was highly improbable that the deceased suffered the head injury before she was shot although he could not be certain of this.  It was then put to him that, if she had sustained Wound 3 through Hole 8 before she suffered Wound 4 and this had also caused her to be propelled forward to cause the head injury, she would simply not have been in a position to raise herself to a position where she could sustain Wound 4 since the head injury involved concussive brain damage.  Dr. West suggested that there would be an interval, albeit small, when the deceased would have been capable of some movement after sustaining Wound 3 and the head injury.  He also suggested that it was possible that Miss Reilly suffered the head injury after sustaining both bullet wounds.  When it was pointed out to him that the deceased had ended up lying on the back seat, he said that it was possible that she had gone forward after the second bullet wound, sustained the head injury and then fell back on to the seat.

The witness confirmed that the ovoid plug found in Wound 4 had arrived there, in his opinion, by contamination.  The plug was a piece of metal from the car rather than a bullet fragment.

After the cross examination of this witness ended, an issue arose relating to his view, baldly stated in direct evidence, that Wound 4 could not have been created by a bullet which had passed through Hole 8.  I permitted the defence to adduce further evidence in support of that claim.  The witness was shown photographs of bullets fired by Dr. Renshaw in tests designed to simulate a Hole 8 shot.  He suggested that the appearance of one of the bullets was such that it could not have caused Wound 4.  He could not exclude the possibility that the other bullet might have caused a wound similar to Wound 4.  Further cross examination on this point ensued. Dr. West was asked whether, if a piece of metal was adhering to the tip of the bullet, this might not mitigate the distortion of the bullet at the moment of entry so that a regular wound could be created.  He accepted that it might but asserted that, in that event, the metal fragment would not have been found at the opening of the wound but would have been driven deeper into the body.

The evidence given by Dr. West about the possibility of Wound 2 having been caused by a penetrator had not been put to Professor Crane.  He was therefore recalled.  He did not accept that Wound 2 could have been caused by a penetrator.  Its size, its shape and particularly its margins were inconsistent with its having been caused in that way, according to Professor Crane.  Further he believed that, although the fragment which was found in the wound was light, it had a sharp edge which was sufficient to cause the wound.  Its lack of significant weight may have accounted for the fact that it did not penetrate further but this was in no way inconsistent with its having caused the wound.

Professor Crane was pressed on whether the penetrator might not have gone further into the body and been missed on autopsy because no X-ray had been undertaken.  He refused to accept this.  He said that one of the purposes of dissecting the wound had been to establish whether there was a track leading from Wound 2. No track was found.  If there had been a track Professor Crane said that he would have dissected further until he found the object which had caused it.  The absence of a track indicated that nothing had penetrated beyond the superficial tissues.  He agreed, however, that he was unable to state with one hundred per cent certainty that there was not a smaller fragment embedded deeper in the body which had been missed.

The passage of the bullets through the body and the position of the deceased

     It is impossible to say with any degree of certainty what the trajectory of either bullet was other than that the bullet which caused Wound 3 travelled through the body in a downwards plane and that the bullet which caused Wound 4 travelled upwards.

     It is clear from the evidence of both Professor Crane and Dr. West that a bullet may not follow the same plane through the body as that on which it had travelled before entering the body. There are several reasons for this. The initial contact with the body may cause the bullet to divert, particularly if it is travelling in 'yaw' (i.e. other than nose on). Impact with body structures may also divert it from its course. Thus, for instance, the bullet which caused Wound 3 is almost certain to have been diverted by its impact with the ribs of the deceased and the bullet which caused Wound 4 will have been diverted from its course by the impact with her humerus. Furthermore, as a bullet loses velocity, its trajectory will alter. All of these factors make it impossible to regard the route of the bullet through the body as a reliable indicator of its course before entering the body.

     The difficulty in determining the course of either bullet before it struck the deceased is compounded by the circumstance that one does not know what her position was when each of the bullets struck her. I accept Professor Crane's evidence that the situation within the car while it was being fired upon would have been a dynamic one.  The passengers must have been taking up positions to try to avoid being struck by bullets.  At the same time the car was travelling at speed.  It is eminently possible that these factors could have caused the deceased to be in an unusual position even before she was struck by either bullet or suffered the blow to the head.  After the deceased was struck by the first bullet she may well have assumed an entirely unnatural posture either because of the effects of the injury or in an attempt to avoid further injury.  Equally the blow to the side of the head, if it occurred before she was struck by either or both bullets, may have propelled her into a wholly unusual position before she was struck by any subsequent bullet.

A further difficulty arises in relation to Wound 3.  Because of the capacity for movement within the body of such organs as the liver, the lungs and the diaphragm, it is impossible to trace with any accuracy the track taken by the bullet which caused that wound.  Again I accept the evidence of Professor Crane that it would be wrong to plot the course of the bullet by reference to the positions occupied by these organs when the body was erect. The appearance of the bullet having passed sharply downwards may thereby be created, but this could be wholly misleading as the organs may well occupy an entirely different position when the body is prone and contorted as it is likely to have been on this occasion.

I am therefore satisfied that there is nothing in the pathological evidence relating to the track of the wounds which precludes Wound 3 having been caused by the bullet which passed through Hole 4 or the bullet which caused Wound 4 having been caused by the bullet which came through Hole 8.  On the contrary, I consider that the evidence in relation to the route of those bullets which can be derived from an inspection of the car is consistent with their having caused both wounds.  In this context I should say that I expressly accept the evidence of Professor Crane that he had not espoused a route for the bullet which caused Wound 3 in order to support the prosecution theory that it had been caused by the bullet which came through Hole 4.

I do not accept the evidence of Dr. West that it was impossible for a bullet passing through Hole 8 to cause Wound 4.  As he himself accepted (in relation to Hole 8), the body of a person in the rear compartment of the car could be in any one of an "infinite number of variations".  I do not find it difficult to envisage a position which the deceased could have taken up in which a shot fired through Hole 8 would have struck her at Wound 4.  The shot fired through Hole 8 was travelling downwards.  It is well established that it did not strike the seat squab.  It must have struck something else.  The obvious explanation is that it struck the deceased.  Dr. West believed that Wound 3 could have been sustained by the bullet which passed through Hole 8.  But that bullet was just as likely to strike the deceased at Wound 4 as Wound 3 in my opinion.  The wounds were separated by a few centimetres only.

Although the bullet travelled upwards through the deceased's body, for the reasons which I have already given, no particular significance can be attached to this.  In my opinion there is a wide variety of possible positions which the deceased might have assumed with her back arched which would have allowed the bullet to travel along the route taken by the Wound 4 bullet if it came through Hole 8.  I think that Professor Crane was wise to eschew any evaluation of how easy or difficult it would have been for a Hole 8 bullet to cause Wound 3.  I accept his evidence that this was perfectly possible.

I am satisfied that the bullet found on post mortem must have been travelling at a significantly slower speed when it struck the deceased than its velocity at discharge.  I shall have to consider this topic in greater detail presently when dealing with the ballistics evidence.  It is sufficient for present purposes to observe that Professor Crane's evidence that greater damage to the liver would have been caused had it been travelling at normal speed was unchallenged.  Apart from this, the bullet remained intact despite its impact with the ribs.  Its energy was dissipated after it had traversed the liver.  These factors combine, in my opinion, to create an irrefutable case that the speed of the bullet must have been significantly lower at the time that it struck Miss Reilly than its speed when it left the muzzle of the weapon.

The appearance of the wounds

It is clear that Wound 3 was caused by a bullet which was in substantial yaw when it struck the deceased's body.  The dimensions of the wound and its shape and general appearance admit of no other possibility.

The size and shape of Wound 4, by contrast, were consistent with - indeed indicative of - the bullet which caused it having struck the deceased's back nose on.  An orthogonal strike is much more likely to have been caused by a bullet which has not struck any intermediate object and one must consider, therefore, whether it is possible that Wound 4 was caused by a bullet which entered the car through the area where the nearside rear window ought to have been.  The appearance of the edges of the wound might be considered to support this theory.  According to Dr. West the abrasion collar which surrounded the wound was characteristic of an undamaged bullet.  But he accepted that at least one of the bullets fired by Dr Renshaw in simulated Hole 8 tests could have caused Wound 4. I am satisfied, therefore, that Wound 4 could have been created by a bullet which was in a less than pristine condition.  I am also satisfied that a bullet fired through Hole 8 could have caused Wound 4.

The metal fragments - contamination or propulsion?

One of the principal arguments deployed by the defence in opposition to the theory that Wound 4 had been caused by the bullet which came through Hole 8 was that the wound could not have been caused by a bullet which had passed through the nearside rear door and the ashtray.  It was established that this was the route of the Hole 8 bullet.  For the reasons I have already given, I do not accept that there is anything in the appearance of the wound which precludes its having been caused by a Hole 8 shot.  The defence argument faces another difficulty, however.  If the Wound 4 bullet entered the car through the empty space where the rear nearside window should have been, how did the ovoid plug come to be embedded in the wound?

Dr. West's explanation of this is that it must have arrived there by a process of contamination.  Various possible scenarios were mooted as to how this might have occurred.  It was suggested that it could have happened when the deceased's back was exposed for the purpose of placing a dressing on the wounds.  It might also have occurred, it was claimed, when she was placed on her back while receiving medical treatment.  It was further suggested that the fragment could have been carried in her clothing when she was removed from the car and either got on to the dressing or coincided with the sticky surround of the wound before the dressing was applied.

I found all of these suggestions utterly unconvincing.  It would be remarkable enough if the fragment was carried in the deceased's clothing to the point where she received medical attention and was there somehow placed into the wound.  It is inconceivable, however, that it should have found its way into a tiny wound only some two to three millimetres in diameter.  The defence suggestion that this is what happened becomes even more fanciful when one considers that there is no injury to the skin surface surrounding the wound.  Thus the fragment would have had to enter the wound directly without any contact whatever with the adjacent skin.  Not only does this need to happen but the fragment must also be inserted in the wound with sufficient force for it to become embedded to the extent that it could not be removed without being excised.  I do not believe that this is even remotely possible.  I am satisfied that the more likely explanation for the presence of the fragment in the wound is that it was carried there by the bullet which caused Wound 4 and that this provides support for the Crown case that the bullet which caused that wound came through Hole 8.

Dr. West's opinion about the cause of Wound 2 was equally implausible, in my view.  His belief that it may have been caused by a penetrator was prompted by a suggestion from Dr. Renshaw.  As I shall discuss in a later section of this judgment, Dr. Renshaw had taken up what he agreed was an a priori position that the bullet which was found in the deceased's body could not have come through Hole 4.  To sustain that position he had to explain where the fragments of the bullet which did come through that hole had gone.  It was doubtless this consideration which caused him to reflect that the shape of Wound 2 resembled a penetrator.  But the theory had otherwise nothing whatever to commend it and was, I fear, rather too hastily espoused by Dr. West.

In the first place the wound was much larger than a penetrator. Normally, because of the elasticity of the skin, one would expect the wound dimensions to be less than the object which caused it.  Furthermore, the wound did not have a track. Professor Crane dissected it to a depth which allowed him to be satisfied that no track existed.  While he accepted that it was impossible to be one hundred per cent certain that other metal fragments had not penetrated the body and had been missed on autopsy, I am satisfied that there cannot have been a penetrator more deeply embedded in Wound 2 or in any track leading from it.  Finally, the implausibility of the theory was demonstrated by Dr. West himself.  To create Wound 2 the penetrator would have had to be in a pristine or at least substantially undamaged condition.  If it had come through Hole 4 and had fragmented it simply could not have been in that condition by the time it arrived at Wound 2.

Professor Crane was forthright in his dismissal of the defence theory on this issue.  I believe that he was right to be.  He also dismissed Dr.West's suggestion that the metal fragment found in Wound 2 could not have caused it. I also accept his evidence in relation to this point.  I am satisfied that Wound 2 was caused by the metal tab found in it and by nothing else.

The sequence of shots and infliction of the wounds

Examination of the wounds alone does not reveal the sequence in which the shots which caused them were discharged.  If the Hole 4 shot struck the deceased, however, it is reasonable to deduce that this was the second and last bullet to strike her.  It must have been fired by a member of V10A at the car as it travelled towards V12's position.  All the available evidence shows that no member of the bricks which were citywards of V10A could have fired into the rear of the car.  Equally there was no suggestion that Hole 4 could have been by anyone other than a member of V10A.

If Wound 4 was caused by a shot which came through Hole 8 I am satisfied that it is entirely feasible that Wound 3 could have been caused subsequently by a shot fired through Hole 4.  I do not accept Dr. West's evidence that, in order to sustain Wound 3 from a shot through Hole 4, the deceased would have had to occupy a position so that her feet were in the space between the front seats with the upper trunk acutely angled across the seat.  It seems to me that, since one cannot be certain of the plane on which the bullet travelled through the body, it is not possible to say that a particular posture for the body was essential for the wound to be caused by that shot.  Even if Dr. West's evidence on this point is correct, however, I do not consider that it casts doubt on the feasibility of the wound having been sustained in that way.

The possibility of the wounds being sustained in the opposite sequence (i.e. Wound 3 first and then Wound 4) is much more difficult to envisage, however.  Wound 4 could not have been sustained from a shot fired through the rear nearside window area if the deceased was in a prone position.  The injury caused by the shot through Wound 3 would have been rapidly disabling.  While it is perhaps possible that she would have raised her body after receiving that wound it is difficult to accept that the deceased could -or, more importantly, that she would - have done that.  On the defence theory the deceased was shot in Wound 3 by a bullet from Clegg's weapon which came through Hole 8.  She must have been cowering and in a prone or at least crouched position on the rear seat when that bullet struck.  One would have thought that, quite apart from her ability to do so, her natural instinct would have been not to raise her body at that point but to crouch down further to avoid further fire.

It is not possible to be certain, however, from the pathological evidence alone that the deceased was struck first by the bullet which caused Wound 4.

The head injury

This was described by Professor Crane in his autopsy report as an area of parchmented abrasion twelve centimetres by five centimetres on the right side of the face in front of the ear, on the pinna and just encroaching on to the upper part of the neck.  He found a little patchy subarachnoid haemorrhage over the right half of the brain.  The underlying tissue was swollen and there was patchy cortical bruising about three centimetres in diameter on the outer side of the temporal lobe.

Clearly, significant forceful contact between the side of the head and a hard object would have been required to cause this injury. Professor Crane considered that it might have occurred while the car was being accelerated.  I have some difficulty in accepting that such an injury would have happened, however, if Miss Reilly was conscious or able to control her own movements at the time that it was sustained.  I agree with Dr. West's view that it is most improbable that the injury occurred before Miss Reilly was shot.

If the deceased suffered Wound 3 first as a result of a shot through Hole 8 it is difficult to see how she could subsequently have sustained the head injury. That shot would have propelled her forward but, at the time she was struck she would have had to be in a position with her face on the rear seat, according to Dr. West.  There is no obvious place where her head could have been injured if she had been propelled forward from that position.  Likewise, if she did not suffer the head injury until after both bullet wounds were sustained it is difficult to understand how this could happen if they occurred in the sequence suggested by the defence.  If the deceased was struck by the Hole 8 shot in Wound 3 and then managed to raise herself to a position where she was struck by the shot which entered through the area of the missing window, in order for that shot to travel on the plane of the bullet which caused Wound 4, she would again be unlikely to collide with any object which was likely to cause the head injury.

If, however, the deceased was struck by a bullet which came through Hole 4 and which hit her square on the back this could readily have propelled her forward to come in contact forcibly with the seat belt anchor for either of the two front seats; Dr. West considered that these were the points at which injury was most likely to be sustained.  Obviously it is impossible to be certain of it but I consider that a Hole 4 shot propelling the deceased forward so as to cause her to strike one of the seat belt anchors is the most likely mechanism by which the head injury was caused.

The ballistics evidence

The evidence of Gary Montgomery

Mr. Montgomery is a senior scientific officer at the Forensic Science Agency of Northern Ireland.  He has been employed there for almost twenty five years.  He has worked throughout that time in the firearms section and has acquired substantial experience in the investigation of incidents involving the use of firearms.  Unlike many of his Great Britain counterparts he is particularly experienced in investigating the use of high velocity firearms.

At 12.35am on 1 October 1990 Mr. Montgomery was summoned to the scene of the shooting incident on Glen Road.  After collecting some materials at the laboratory and receiving a briefing at Woodbourne RUC station he arrived at the scene at 1.51am.  There he was given information about the number of soldiers who had been on duty and how they had been deployed.  He was also told that the military patrol had been accompanied by an RUC constable.  He obtained details of the callsigns of the various bricks.

Mr. Montgomery inspected the Vauxhall Astra at the scene.  It was stationary on what was for the car the wrong side of the road.  Its offside wheels were in contact with the kerb.  The driver (who was not wearing a seatbelt) was obviously dead.  The blue light on the dashboard indicated that the full beam had been on.  Brake lights were showing at the rear of the car.  Tail lights and number plate lights were also illuminated.  Mr. Montgomery noticed that the driver's foot was resting on the brake pedal.  When his foot was moved the brake lights were extinguished.  The car was in neutral gear and the handbrake was off.

The front windscreen had several holes in it; there was a flap of glass and laminate protruding from it.  There were several bullet holes in the rear windscreen.  The only window which was undamaged was the rear offside.  A number of areas of glass which had come from the car were found some distance behind it in a countrywards direction.

Mr. Montgomery then carried out an inspection of the scene beginning at the stone bridge where, he had been given to understand, the VCP had been located.  Some sixty five yards from this he noticed white tape enclosing cartridge cases.  He then noted a number of other areas enclosed by white tape in which cases had also been found.  He confirmed that these approximated to the areas marked by the mapper on the map produced for the trial.

Mr. Montgomery returned to the scene when it was daylight and was present during the reconstruction.  All the soldiers in V10A indicated that they had fired shots.  Cartridge cases were found adjacent to the positions taken up by all the soldiers apart from Clegg.  He took up position approximately thirty feet citywards from where a cartridge case which Mr. Montgomery associated with the discharge of Clegg's weapon had been found.  That cartridge case and three others found nearby were later established by Mr. Montgomery as having come from Clegg's weapon.  Mr.Montgomery found that, when tested, Clegg's rifle discharged rounds six to eight feet to the right and slightly backwards.  He would have expected, therefore, that Clegg would have positioned himself near the place at which the cartridge cases were found.

Mr. Montgomery was given to understand that in all thirty six rounds were fired at the car.  Thirty four cartridge cases were recovered.  These together with many other items found at the scene were examined at the Forensic Science laboratory.  The weapons of those soldiers who had discharged their weapons were also examined. Clegg's weapon was a Light Support Weapon which was slightly longer than the standard issue rifle.  The magazine which accompanied it contained twenty three rounds of ball ammunition.  This indicated that four rounds had been discharged.  Two of these would have been ball rounds and two tracer rounds.

The clothing of Karen Reilly was also examined.  This examination proved difficult because the clothing was heavily bloodstained and much of it had been cut from the body.  The damage to her clothing corresponded with the wounds on her body, however.  Her upper clothing consisted of a tracksuit top and T shirt.  The lining of the tracksuit was not attached to the outer shell and both layers were free to move independently of each other.  There was a large hole in the middle of the T shirt which Mr Montgomery concluded had been created by the bullet which caused Wound 3.  One smaller hole was found to the left of the large hole and three small holes to the right.  The configuration of the holes corresponded with the three wounds found on autopsy.

Three pieces of ferrous metal and a bullet removed from the body of Miss Reilly were examined.  One of these (item 66) was recovered from the right side of her nose.  Item 67 was a sliver of metal recovered from Wound 3 and item 68 a fragment of metal from Wound 4.  Item 69 was the bullet recovered from the deceased's abdomen.  Mr. Montgomery examined the last item and established by comparison with other bullets test fired from it that it had been fired from Clegg's weapon.  It was a ball round and must therefore have been the third or fourth shot discharged since the first two rounds were tracer rounds.  Mr. Montgomery examined the bullet together with the sliver of metal removed from Wound 3 ('the tab').  He found that the bullet nestled comfortably on the concave side of the tab.  He also found that there were copper deposits on the concave side of the tab.  As a result of these findings Mr. Montgomery concluded that the tab had been formed by the bullet passing through the metal upright of the back seat.  It was then carried forward by the bullet but became detached from it before it struck the deceased.  The tab was propelled into Wound 2 and the bullet struck the deceased at Wound 3.  He considered that the coppering found on the concave side of the tab had been deposited by the bullet.

Mr. Montgomery explained this theory by reference to photographs of the back of the car.  On the rear surface of the back seat upright (i.e. that which faced the boot lid) the hole caused by the bullet which had entered the car through Hole 4 could be clearly seen.  The shape of the hole showed that the bullet was in substantial yaw by the time it had arrived at the back seat upright. The yaw had been caused by the passage of the bullet through the two metal panels which comprised the boot lid or hatchback of the car.  As the bullet passed through these two sheets it would have picked up from each a nose cap. The cap was circular because the bullet would have struck each surface orthogonally.  The second cap would have become superimposed on and adherent to the first.  Beneath the hole created in the seat upright by the yawing bullet from Hole 4 was a circular indentation.  Mr. Montgomery considered that this had been caused by the adherent nose caps which had become detached from the bullet as it travelled through the boot space.

In the foam of the seat back Mr. Montgomery discovered two holes.  He deduced from this discovery that the tab created by the bullet passing through the metal of the seat upright had become detached from the bullet as they travelled through the foam.  The tab created the smaller hole and the bullet the larger.  Both items then travelled forward separately, the bullet to cause Wound 3 and the tab Wound 2.

Mr. Montgomery's examination of the Astra car revealed that it had been struck by at least nineteen bullets.  Other bullets may have entered the car through windows which subsequently shattered and then exited similarly, leaving no trace.  Each bullet hole on the car was numbered.  It was found that shots had been fired at the back, nearside and rear of the car.  Seven bullets had struck the rear of the car.  Five had hit the bodywork and two the rear windscreen.  The bullet which caused Hole 4 had entered the car boot a few inches above the rear bumper.  The angle at which this shot entered the car was rather flat, in Mr. Montgomery's opinion.  It was approximately horizontal.

It then passed through the rear seat travelling in yaw.  On exiting from the rear seat, if it had not hit the rear seat passenger, Miss Reilly, it would have struck the  radio in the central console in the front of the car below the dashboard.  There was no evidence of any damage in that area.  The only damage to the back of the front seats was found at the top right hand corner of the passenger seat.  A hole had been caused by the bullet which came through Hole 7.  Other damage may have been caused by fragments carried with that bullet.  Mr. Montgomery did not find similar marks or damage which could be associated with Hole 4.  In tests which he had conducted he found that if a bullet fired through a simulated Hole 4 fragmented, most of the larger fragments hit the central console.  If they did not travel as far as that, he would have expected them to strike the back of the front seats.  There was no evidence of that having happened in the Vauxhall Astra.

Shots which caused Holes 1, 3, 6 and 7 had been fired from behind and slightly to the left of the car.  Shots which caused Holes 2, 4 and 5 were fired from almost directly behind the car.  This meant that the firer and the car were in line with each other when the shot was fired.  It did not signify that the firer was in line with the road at the time of firing.  If the car was angled across the road a shot which entered the car from directly behind would have been fired by a soldier standing at a similar angle to the car on the road.

Mr Montgomery said that it was difficult to reach any conclusion about the distance from the car of the firer of the bullet which caused Hole 4 by reference solely to the fact that it was approximately horizontal as it passed through the car.  In general, the nearer the firer is to the target, the more acute the angle of entry will be, assuming that the rifle is fired from the shoulder.  As the distance between the firer and the target increases, the angle becomes flatter and flatter until it becomes impossible to determine an angle.  In this instance the range at which it became impossible to make that estimate was fifty feet approximately.

Hole 8 was caused by a bullet which penetrated the rear nearside door a few inches below the window level.  The bullet passed into the car travelling downwards and to the rear.  There was no evidence of this bullet having caused any damage to the rear seat which it was bound to have struck if it had not been intercepted and Mr. Montgomery concluded therefore that it must have struck the rear seat passenger, Miss Reilly.  The bullet had penetrated the car door at the location of an ashtray mounted on the inside of the door.  The ashtray had been propelled into the car in fragments and the recess which housed it had a circular hole through which the bullet had passed.  When the shot was fired there would have been a distance of approximately twelve feet between the muzzle of the rifle and the side of the car.  At the time of firing the front of the car would have just passed the firer but the rear door would not have been quite level with the position of the soldier firing the weapon.

Mr. Montgomery gave evidence that Hole 17 was located on the top edge of the front offside mudguard approximately midway between the aerial and the leading edge of the bonnet.  The bullet had penetrated the bodywork and passed above the top of the suspension mounting before striking the bulkhead which it then penetrated.  The remains of a damaged tracer bullet were recovered in the area behind the bulkhead and from these it was established that the shot had been fired by Aindow.  It had been fired from in front of the car with the firer standing in front of the driver's side as it approached.  Mr. Montgomery made several estimates for the distance from which this shot had been fired.  If fired from waist height he calculated that the range would have been less than six feet.  If fired from the shoulder the distance of the firer from the car would be approximately seventeen feet.

The bullet which caused Hole 18 struck the front nearside of the car in the wing above the wheel.  It then travelled on and struck the wheel arch and penetrated to the interior of the car.  The bullet fragmented and some fragments were recovered from under the carpet in the front passenger footwell.  That shot had been discharged, in Mr. Montgomery's opinion, approximately forty to fifty feet from the car.  The decision to fire must have been taken when the car was further away, of course.  When Mr. Montgomery had examined the fragments from this bullet he had been unable to satisfy himself from whose weapon it had come.

Examination of the interior of the car revealed an area of bloodstaining on the back seat.  This was concentrated on the middle of the seat and was present on the seat squab and the back rest.  The Hole 4 bullet had passed through the back rest at the top edge of the blood staining.  Two small holes were detected above and below the hole caused by the bullet.

Mr. Montgomery concluded that the bullet which came through Hole 4 must have struck Karen Reilly.  He believed that the other bullet which struck her in Wound 4 had come through Hole 8.  This bullet had probably been fired by another member of V10A or one of the soldiers in V12.  He considered that the rear nearside window had probably been broken by a bullet which entered the groove which accommodates the window when it is lowered.

Mr Montgomery gave further evidence about the dimensions of the hole created in the back seat metal upright by the Hole 4 shot.  This hole was 0.66 inches in length and 0.275 inches wide.  The Hole 4 bullet struck the car twenty six and a half inches above the ground.  Private Clegg is five feet nine inches tall. If he were standing on the footpath his height (from the road level) would be increased by some inches.  Mr. Montgomery also gave evidence that the only source of the tab found in Wound 2 was the metal seat back upright.

After the case was referred to the Court of Appeal by the Secretary of State, Mr. Montgomery carried out more tests.  As a result he prepared three further reports which, with the agreement of the defence, were made exhibits in the case.  He considered that the results of the further tests reinforced the conclusions which he had already reached.

Mr. Montgomery fired ten rounds of ammunition similar to that used by Clegg .  He found that the velocity of the bullets when measured twelve feet from the muzzle of the weapon was between 3097 feet per second (fps) and 3228 fps.  After being fired through a single sheet of 22 gauge cold reduced mild steel (used to represent car body material) the mean velocity of four bullets was 3106 fps.  A similar test for toughened window glass was carried out.  Velocities after perforation of the glass ranged from 3030 fps to 3079 fps. Mr. Montgomery concluded, therefore, that bullets lose very little velocity after being fired through either toughened glass or steel.  Glass impeded slightly more than steel. On the basis of these results Mr. Montgomery challenged Dr. Renshaw's conclusion that the velocity of a bullet passing through Hole 8 would have been significantly less than that which passed through the glass or open window area of the nearside rear door.

Mr. Montgomery also carried out tests in relation to Hole 4.  Bullets were fired at a similar Astra car in a manner designed to simulate the passage of a Hole 4 bullet into the passenger compartment of the car. Initially the range chosen was fifty feet.  It was discovered that most of the bullets fired at this range fragmented and the fragments were devoid of rifling marks on the side of the bullets which impacted on the metal back rest of the rear passenger seat. Further tests were then carried out on a specially constructed series of targets designed to replicate the three layers of steel through which the Hole 4 bullet had passed.  The distances chosen for this series of tests ranged between 330 and 656 feet.  These tests revealed that as the distance from the target increased and the velocity on impact thereby decreased, bullets were more likely to be recovered intact with rifling present throughout their circumference.  One bullet, in particular, fired at a distance of 490 feet bore a striking resemblance to the Clegg bullet, in Mr. Montgomery's estimation.  The impact velocity of this bullet at the back of the car was approximately 2700 fps and when it entered the passenger compartment, having passed through the metal back rest, the velocity was approximately 2300 fps.

Further tests were carried out to estimate the likely effect of a bullet which passed through Hole 4 but which did not strike a passenger.  According to Mr. Montgomery such a bullet would have penetrated deeply into the radio console.

During his further tests, Mr. Montgomery also returned to the scene of the incident.  He claimed that the Hole 4 position would have been visible from the place occupied by Clegg from a distance of at least 1000 feet.

Further tests were also conducted in relation to Hole 8.  This bullet had perforated one layer of car body metal, the ashtray recess and the ashtray itself before entering the rear compartment of the car.  Mr. Montgomery gave evidence that a bullet making impact at right angles with a sheet of metal did not tumble or go into yaw after going through a single sheet of metal.  When the angle was reduced to 60 degrees and plastic was added to represent the ashtray it was found that the bullet tumbled after three to nine inches.

Mr. Montgomery also carried out a comparison of bullets which had been fired through one sheet of metal with others which had been fired through two sheets.  He suggested that the bullets which had been fired through two sheets had a more prominent 'shoulder' (i.e. a bunching of the metal where it had been pushed back) on the ogive (the pointed end of the bullet) than those where the bullets had passed through only one sheet.  He suggested that the shoulders on the test bullets were of comparable dimension and appearance to that which had been removed from the body of Karen Reilly.  By contrast, test bullets fired through a single layer of steel and plastic similar to that in the ashtray had a different appearance from the Clegg bullet, Mr. Montgomery said.

Mr. Montgomery then dealt with Dr. Renshaw's theory that the Hole 8 bullet caused Wound 3.  He said that the literature suggested that a bullet fired at the range of that fired through Hole 8 would fragment on hitting the body or within the body.  He concluded, therefore, that the reason that the bullet found in Karen Reilly's body did not fragment was that it had come through Hole 4 rather than Hole 8.

In relation to the ovoid plug in Wound 4 Mr. Montgomery said that the copper deposit found on its concave surface came from its having been in contact with the tip of the bullet.  The convex surface had an 'orange peel' effect.  This occurred because the steel had stretched over the tip of the bullet and indicated that the plug had been caused by the perforation of a single sheet of metal.  If it had been caused by two sheets of metal being perforated the convex surface would have been smooth and burnished.

Under cross examination Mr. Montgomery accepted that he had initially considered that the Clegg bullet could have been fired at a range of 50 to 100 feet.  He now accepted that this was unlikely because of the tendency of bullets fired through a simulated Hole 4 to fragment at that range.  He believed that the range was likely to have been at least 200 feet.  The speed of the retreating car was a factor to be considered but Mr. Montgomery agreed that this would be a "small factor".  The major factor was the distance of the car from the firer.  But one could not say that even above 200 feet the bullet was not likely to fragment.

Mr. Montgomery was cross examined about his method of estimating the distance of the firer from the car.  He agreed that this would produce at best an approximate result.  He agreed that if the soldier was crouching when he fired that this would affect the accuracy of the estimate.  Once one had a very flat angle (as in Hole 4) it was impossible to estimate the range beyond stating that it could not be less than a certain minimum.  Mr. Montgomery also accepted that the camber of the road could affect the estimate; it could also be affected if the car was swerving from side to side or accelerating fiercely.

It was suggested to Mr. Montgomery that the maximum distance that one could see a car from the position occupied by Clegg as it travelled citywards down the Glen Road was 72 metres if it travelled on its correct side of the road and 150 metres if it crossed to its wrong side.  This suggestion was based on a map produced to the witness during cross examination.  Mr. Montgomery did not accept that suggestion.  He had revisited the scene on 7 February 1997 and established that a view of at least 1000 feet was available.  He accepted that this may have been from the road rather than the footpath.  He thought that the view today was probably as good as it was in 1990.

Mr. Montgomery agreed that, if Clegg claimed that he had fired three bullets as the car approached his position and at that time he was standing on the footpath, it would be consistent with that account that three cartridge cases should be found in the grass verge.  If he fired his fourth shot into the side of the car as it passed and that case ended up on the footpath, that would also be consistent.  If he fired at the car when it was at least 200 feet down the Glen Road, the most "comfortable" position from which to fire, Mr. Montgomery agreed, was from the road.  If he had moved to the centre of the road, one would expect the ejected bullet to end up near the opposite kerb of the 25 feet wide road.  Mr. Montgomery also agreed that Aindow was in a position where he could have fired the shot which entered the car through Hole 4.  It was put to him that some of Aindow's cartridges had been found on the road and that this indicated that he had been standing six feet or thereabouts towards the centre of the road from where the cartridges landed.  Mr. Montgomery accepted that this was possible but he expressed caution about placing too much reliance on the place where the cartridges were found because they could bounce and roll on the road surface.

Mr. Montgomery accepted that in none of the test firings which he had carried out was a tab created which resembled the tab removed from Wound 2. He agreed that a bullet fired through the two layers of steel in the boot acquired a prominent shoulder above the cannelure (i.e. the gnurled area below the ogive).  The nose of the bullet developed a 'mushroom' effect.  After going through two layers the mushroom effect (i.e. the pushing back of the tip of the bullet one or two centimetres above the cannelure) tended to be uniform around the circumference of the tip of the bullet, according to Mr. Montgomery.  It was then suggested to Mr. Montgomery that when the bullet went through a third layer in anything approaching significant yaw that this resulted in a substantial and discernible 'shoulder drop' on the side which struck the third layer.  He accepted that this was "highly likely".  He further accepted that in all the Hole 4 simulated shots this feature was present.  When it was put to him that the Clegg bullet did not "drop on one side consistent with the test bullets fired through Hole 4 (sic)" he said that he thought that it dropped slightly but not to the same extent as on the test bullets.

Mr. Montgomery accepted that of all the bullets fired from a distance of fifty feet in the various tests of which he was aware none had an appearance similar to the Clegg bullet.  Generally speaking, bullets fired at that range fragmented.  Those which survived were much more severely damaged than the Clegg bullet.  If pressed, he would estimate that the bullet which entered Hole 4 had been fired at a distance of at least 100 metres.  He reached that conclusion because of the condition of the Clegg bullet.

Mr. Montgomery agreed that the Clegg bullet had a 'banana' shape in that it was flattened lengthways and had a slight curvature.  He accepted that traces of rifling marks could be seen and felt all around the bullet.  It was then put to the witness that every bullet fired in a Hole 4 simulation suffered obliteration of the rifling marks on the side which impacted with the third layer of steel. Mr. Montgomery was unwilling to accept that proposition.  He believed that there were bullets which had been fired during tests which impacted at significant yaw but whose rifling nevertheless survived right round their circumference.  He agreed, however, that in most cases the rifling marks would be flattened by the impact so that they could no longer be felt.

Mr. Montgomery was then cross examined about the bullet which, from all the tests that he had conducted, he considered most resembled the Clegg bullet.  He accepted that the rifling was flattened on this bullet and that unlike the Clegg bullet, the cannelure had been displaced on the test bullet.

He confirmed that there was what was described as "scuffing" or "gouging" on the Clegg bullet.  On the prosecution theory this had occurred when the bullet passed through the seat back.  There were also tiny impressions around the Clegg bullet.  These had never been reproduced on any of the test bullets.

Mr. Montgomery accepted that he had originally believed that all three wounds had been caused by the bullet which came through Hole 4.  When he had prepared written notes in December 1990 he had expressed the view that the fragment removed from Wound 4 could have been caused by either of the bullets fired through Hole 4 and Hole 8.  He now considered that the fragment was caused by the Hole 8 bullet but he was not prepared to say that it was impossible that it had been created by the Hole 4 bullet.

The witness accepted that the bullet which entered the car through Hole 8 would probably go into yaw.  In some of the tests this had not happened, however.  While most bullets did go into yaw it was not inevitable that the Hole 8 bullet had gone into yaw before it struck the deceased.  If her back was against the door when the bullet entered the rear compartment of the car it might not have had time to yaw since this began after several inches.  He accepted, however, that the penetrator of the bullet could well have been exposed by its passage through the door.  On the tests conducted by Dr. Renshaw (with which Mr. Montgomery had no quarrel) the bullet's pristine shape would be disrupted and the tip deformed by passing through the door and ashtray.  He was not able to say what effect, if any, this would have on the appearance of a wound caused by that bullet.  He accepted that it would be a remarkable coincidence if the bullet went into yaw and somehow corrected itself in time to enter the deceased's back orthogonally.

Mr. Montgomery agreed that the bullet which caused the tab which entered Wound 2 must have been in substantial yaw.  It was suggested that an impact to a bullet in such a degree of yaw would cause substantial damage to the bullet.  He accepted that there would be some damage.  He did not accept that the bullet would not remain intact, although he had been unable, in his test firings, to reproduce a tab such as was found in Wound 2 where the bullet remained intact.

A series of photographs of four bullets test fired by .  Dr Renshaw was put to Mr. Montgomery.  The bullets had been fired through a simulated Hole 4 and had not fragmented.  It was suggested that these illustrated significant differences in appearance to the Clegg bullet.  Mr. Montgomery accepted that in each of the four bullets photographed the cannelure had been disrupted.  He also agreed that the bullets had been much more severely damaged on the impact side than had the Clegg bullet.  The two test bullets which had yawed to create holes of 16 and 18 centimetres (almost equivalent to the Clegg bullet) had suffered damage right to the base (the boat-tail) of the bullet.  Mr. Montgomery also agreed that in each of these examples there was shouldering which was noticeably more pronounced on one side.  Mr. Montgomery accepted that the tip of the Clegg bullet appeared to be different in appearance from those in the photographs but he was not prepared to concede that it was possible that the Clegg bullet had not entered Hole 4.  None of the areas of damage were, in the words of Mr. Montgomery, "one hundred per cent reproducible".

Mr. Montgomery accepted that a bullet which was in the process of fragmenting as it passed through the foam of the seat back would not necessarily create more than one hole if the fragments had not begun to separate.

He was asked about the possibility of having missed damage to the central console.  He was emphatic that he did not miss any damage there.  He was aware of the importance of examining the front of the vehicle for damage. He had searched thoroughly and found none.

Mr Montgomery accepted that the bullet which came through Hole 8 (and which he believed had caused Wound 4) had not caused any damage to the seat squab and had not been found.  He suggested, however, that in incidents like this bullets were frequently lost.  It could have become trapped in the deceased's clothing and been dragged from the car.

The evidence of Lucien Haag

This witness is a criminalist.  A criminalist is - apparently - akin to a forensic scientist.  Mr. Haag has been a criminalist for more than thirty three years.  He has substantial experience in the field of ballistics having delivered papers on many different aspects of this scientific discipline for a great number of years.  He is a world recognised expert.  His testimony before this court on an immensely complicated and multi-faceted subject was a model of clarity and authority.

Mr. Haag's evidence began with the playing of a video recording of his working methods and his inspection of the Clegg bullet.  I allowed this to be shown despite objection by the defence. I did not permit the commentary to be broadcast since that would have been in the nature of unsworn testimony.  It appeared to me, however, that the video itself could properly be regarded as a series of illustrations of Mr. Haag's work and that it was as admissible as would be still photographs.  In the event, the video provided a very useful introduction to Mr. Haag's oral evidence which was more readily comprehensible on that account.  The production of such a video recording will not always be either appropriate or feasible.  I should say, however, that for cases as complex as the present, the use of such a video may well prove invaluable.

Mr. Haag identified as the most important question in his investigation the route of entry into the Astra car of the Clegg bullet.  A number of ancillary issues arose but this remained the central quest throughout.  He confirmed Mr. Montgomery's evidence that the  Hole 4 bullet entered the car on a virtually horizontal plane.  Photographs of the holes created in the first two layers of metal (i.e. those of the boot) showed that the bullet struck the back of the car orthogonally and continued to travel nose on as it emerged from the second layer.  It then travelled through the seat back creating an elongated hole in the metal upright and in the foam and fabric of the seat itself.  The bullet was in yaw by this stage.  The double nose plug picked up by the orthogonal strike of the bullet on the first two layers struck (but did not penetrate) the metal upright of the rear seat about one inch below the bullet.  The edges of the hole made by the bullet in the metal upright had copper deposits.  The yaw angle of the bullet can be estimated by constrasting the length that the bullet would be after penetrating the two layers of the boot (0.8 inches) and measuring the length of the hole actually created (0.66 inches).  The appearance of the holes in the foam which formed the back for the rear seat was caused by the tab created from the metal upright as the bullet passed through it.  Tabs invariably become detached from their parent bullet when they pass through foam.  No evidence of vaporised lead could be seen on the foam.  This indicated that the bullet had not fragmented as it passed through the foam.

Mr. Haag also confirmed Mr. Montgomery's evidence that if the bullet which passed through Hole 4 had not been intercepted (by, in Mr. Haag's opinion, the body of Karen Reilly) it would have caused substantial damage to the central console.  If the bullet had fragmented the 'chunks' of metal which would comprise the fragments would travel forward at 2000 to 2300 fps.  These would be "formidable missiles".  The holes that they would create would be easily seen.

The hole 8 bullet did not strike the seat squab.  It was inescapable, therefore, that the bullet had struck the occupant of the rear seat.  That bullet had shattered the ashtray.  There did not appear to be any smoking material such as cigarette ends in the ashtray before the bullet hit it.  The absence of such material had significance in the debate as to how the Clegg bullet entered the car.  In Mr. Haag's view, the choice of route for the Clegg bullet was straightforward.  It either came through Hole 4 or Hole 8.

Mr. Haag explained that the L2A2 bullets used by the soldiers on the night in question were tougher than their American equivalent.  This makes them less liable to fragment.  They were, in common with all bullets, liable to flatten when they turned sideways in water, tissue, muscle or any semi-liquid. The bullets were loaded into the magazine so that tracer rounds were the first two to be discharged.  Mr. Haag had obtained an average muzzle velocity of 3114 fps but he had used a shorter weapon than was conventionally used and he was happy to accept the Forensic Science figure of 3166 as accurate.  Muzzle velocity is in fact measured twelve feet from the end of the barrel of the gun. After travelling 500 feet (without being intercepted) if the bullet remained perfectly stable it would have slowed to 2641 fps.  It would take 0.173 seconds to cover that distance.  The velocity figure (which is essentially a theoretical one) will reduce in practice.  The rate of reduction will depend on the ballistic co-efficiency of the bullet.  This means the bullet's ability to withstand the retarding effect of the wind.  Allowing for this factor the velocity of the bullet after 500 feet would be in the order of 2584 fps with a flight time of 0.175 seconds.

Turning to his examination of the Clegg bullet, Mr. Haag said that it had four surviving land impressions.  The bullet when fired receives impressions from the mechanism which causes its propulsion from the barrel.  This creates perpendicular marks on the bullet known as land impressions.  The (apparently) raised areas in between these are known as groove impressions.  When the bullet leaves the barrel it will have six land and six groove impressions.  In the case of the Clegg bullet four land impressions and four groove impressions and part of a fifth survived.  Mr. Haag noted a pronounced circumferential shoulder at the lower portion of the ogive.  He attributed this to the nose first impact with the first two sheets of metal of the boot.  This effect is known as 'swaging'. The tip of the bullet was severely damaged.  The ogive and the penetrator were bent away from the galled (i.e. the scarred) area of the bullet.  The galling or scuffing of the bullet covered approximately one third of its circumference.  This indicated heavy metal-to-bullet damage which was a "multi-event" occurrence.  The penetrator's deformation Mr. Haag attributed to the application of force to its side.  There was extrusion of lead from the bullet and Mr. Haag considered that the manner in which the lead emerged from the jacket of the bullet was significant.  In most cases the lead will ooze out without inhibition where there has been damage to the jacket of the bullet.  In this instance, however, there was something at the base of the Clegg bullet which retarded the flow.  This was the tab which had later been recovered from Wound 2.  Thus, according to Mr. Haag, the Clegg bullet had created the tab from the metal upright of the rear seat; the tab had remained associated with the bullet long enough to impede the ready flow of lead from the bullet and then became detached from the bullet and ended up in Wound 2.  This theory could be demonstrated to be correct, he suggested, by the perfect marriage between the shape of the tab and the area where the lead had been restrained from further extrusion.

The final distinctive feature which Mr. Haag identified on the Clegg bullet was what he described as "partially organised but unpatterned coarse fibre impressions appearing or starting at the right edge of the galled area, traversing one groove and two land impressions and extending up on to the ogive and down across a portion of the bullet's boat tail".  Mr. Haag considered that these impressions had been caused by crushing; they were not the product of a weaved material.  These impressions could not have been created, according to Mr. Haag, along the Hole 8 route.  On the other hand, the coarse fabric which lined the back of the rear seat was precisely the sort of material which could create the impressions.  Mr. Haag confirmed that opinion by microscopic examination of the material.  Mr. Haag also sought to confirm the source of the impressions by placing a bullet on a piece of string which had coarse unpatterned fibres such as the lining of the back of the rear seat.  He then struck the bullet with a hammer and this produced, he suggested, impressions similar to those found on the Clegg bullet.

The witness gave evidence about the appearance of test bullets fired by him at about a fifty five degree angle of yaw.  He suggested that, at that angle, an asymmetrical pushing down of the tip of the bullet occurred.  A fifty five degrees angle approximated, in Mr. Haag's opinion, to the angle of the shot through Hole 8.  In none of his tests was a pronounced shoulder created.  The shouldering on the Clegg bullet was, he claimed, quite different in appearance from the test bullets which he had fired.

On the question of plugs created by bullets passing through steel, Mr. Haag suggested that there was no reliable method of testing how they would move after they become detached from the bullet which created them.  He drew a distinction between plugs and tabs.  The latter were torn away from a piece of metal through which a yawing bullet passed.  An ovoid plug, on the other hand, was punched out by the tip of a bullet striking the metal, albeit at something of an angle.  The fragment of metal removed from Wound 4 was a classic ovoid plug.  It had brassy wipings on the interior surface and an orange peel outer surface.  It was clearly produced by the bullet which caused it passing through a single sheet of metal.  It was also striated; this had occurred because the penetrator had started to come up and the plug was wiped off the tip of the bullet.  The plug therefore met all the requirements of the Hole 8 journey.  It met none of the requirements of the Hole 4 journey.

The tab recovered from Wound 2 was quite different.  It weighed three and a half grains (i.e. three and a half times the weight of the plug in Wound 4). That tab could not have been produced by a Hole 8 bullet, according to Mr. Haag.  There was no steel missing from Hole 8 which could have produced a tab.  The only event which was capable of producing a tab was the Hole 4 shot since this was the only bullet in yaw.  Apart from this, however, the consideration that the tab clearly matched the end of the Clegg bullet was crucial.  This established, in Mr. Haag's view, that the tab was created by the Clegg bullet.

Mr. Haag produced a set of photographs of bullets which had impacted nose on in water at 2700 fps.  These showed, he claimed, that bullets which were fired at that speed became kidney shaped. By contrast, the Clegg bullet was not kidney shaped.  The failure of the bullet to acquire a kidney shape suggested that it must have been travelling at a substantially slower speed.  It must have entered the deceased's body at 2600 or maybe even 2500 fps.

Mr. Haag calculated that a Hole 4 bullet would lose a total of 300 fps between the time that it struck the back of the Astra and its emergence from the rear seat.  The real imponderable was the distance at which the shot was fired. Tests showed that, on average, a bullet fired three hundred feet from a static target had a velocity at the moment of striking the target of 2808 fps.  Arguably a further 44 fps should be deducted to take account of the fact that the car was travelling away from the firer at 30 mph (if indeed that was its speed).

The speed of a bullet coming through Hole 8, however, was more readily calculable.  Since the angle at which the shot was fired was 55 degrees, the appropriate deduction for the effect of the bullet passing through the door was 72 fps (as opposed to 60fps per sheet of metal for the Hole 4 shot which was orthogonal).  Using Mr. Montgomery's estimate of 3166 fps for a shot fired at a distance of 12 feet, and allowing a generous margin for the retarding effect of the ashtray, the velocity of a Hole 8 bullet striking Karen Reilly would be no less than 2900 fps.  Tests carried out by Mr. Haag established that bullets fired at 2600 fps had a kidney bean shape even when fired nose on.  He suggested that the Hole 8 shot could not have been the Clegg bullet since it did not have such a shape.  Bullets fired at 2900 fps (the likely velocity of the Hole 8 bullet) snapped at the cannelure.

Dealing with the ovoid plug found in Wound 4 Mr. Haag said that it must have travelled loosely attached to or in the flight path of the bullet which came through Hole 8.  He wholly discounted the possibility of it having come through Hole 4.  It may have "rode the nose" of the bullet and was wiped off as the bullet entered the wound.  He did not believe that the impact with the ashtray would necessarily dislodge the plug from the bullet.  He produced high speed photographs published by Nennstiel which, he suggested, illustrated how ovoid plugs can travel alongside the bullets which created them.

Mr. Haag also investigated the possibility of the bullet which came through Hole 4 fragmenting and not leaving any discernible damage to the interior of the car.  He gave evidence that, if the bullet had not struck Karen Reilly and had fragmented, the shower of fragments would have followed a conical distribution like the beam of a flashlight.  Moreover when it fragments the bullet gives off a vaporised plume of lead.  There was no evidence of this having occurred with the Hole 4 bullet.  In particular the jacket worn by the deceased tested negative for lead.  Substantial damage would have been caused to the console area of the car.  Furthermore injuries to Karen Reilly from the flying fragments would have been inevitable.  If the bullet had fragmented before or as it was travelling through the foam one would have expected to see more rents or tears in the foam and evidence of lead deposit.  None was found.

Mr Haag gave evidence about a series of tests conducted by him which were designed to test the movement of the Hole 8 bullet and its likely fate after passing through the car door and the ashtray assembly.  I do not propose to rehearse the various experiments but will merely attempt to summarise his conclusions.  He suggested that the damage to the tip of a bullet passing through Hole 8 was difficult to predict.  It was not possible, in his judgment, to say whether the tip would be significantly deformed.  Secondly, while a bullet fired through Hole 8 will be destabilised, it takes some distance before it will go into yaw.  Thirdly, the ovoid plug created by a Hole 8 shot can 'carry on' in the line of the bullet for some distance after passing through the door and ashtray. Wound 4 could have been caused by the Hole 8 shot, therefore, and it was at least possible that the ovoid plug had travelled to Wound 4 with (or in the flight path of) the Hole 8 shot.

In support of this thesis, at a later stage in his evidence, Mr. Haag described a number of experiments carried out by him involving firing into animal skin.  In expounding on the results of these experiments, Mr. Haag sounded a general note of caution.  He said that it was unwise to assume that the dimensions of a wound can be measured with accuracy.  If the skin is stretched at the point where the bullet enters a different size of hole will be produced from that which is caused when the muscles underlying the skin are relaxed.

To carry out the tests Mr. Haag deliberately damaged a number of bullets to simulate the type of deformation which it was suggested might have been acquired by the Hole 8 bullet.  He also reduced the velocity of the bullets in order to equate with the estimated speed of the Hole 8 shot.  He suggested that these experiments demonstrated that a little damage to the nose of a bullet makes little, if any, difference to the shape and appearance of the wound produced.  They also established, he claimed, that bullets with blunted noses fired at an angle produce slightly larger but not significantly different holes from those produced by undamaged bullets.  Yaw was a much more important factor, in Mr. Haag's opinion, than bullet deformation in producing a larger wound. 

Mr. Haag also dealt at some length with the impressions found on the Clegg bullet.  Much of his evidence on this topic was preoccupied in dismissing previously mooted theories about how they might have occurred including that they might have been caused by passing through the filters of cigarette ends in the ashtray or by coming into contact with the ribs of the deceased.  In the event, neither theory was canvassed on the trial as a possible explanation for the impressions and I do not intend to say anything further about them, therefore. Another alternative advanced by Dr. Renshaw (albeit somewhat diffidently) was that the clothing of the deceased might have been responsible for the impressions. Mr. Haag forthrightly dismissed that suggestion.  He described a variety of experiments which he had carried out on various items of clothing none of which produced impressions such as were found on the Clegg bullet.  I need not describe these in any detail at this stage.  I am quite satisfied that the impressions on the Clegg bullet were not caused by the deceased's clothing.  I shall give my reasons for that when I deal with Dr. Renshaw's evidence and comment on the ballistics evidence generally.

Mr. Haag examined the remains of a bullet which had entered the car through Hole 18.  After extensive investigation of this bullet he concluded that it had been a tracer round fired from Clegg's rifle.  He estimated that, when Clegg decided to fire that bullet, he must have been between fifty eight feet and one hundred and twenty feet from the car.  This was arrived at by taking Mr. Montgomery's estimate of forty to fifty feet as the distance which separated the firer and the car at the moment that the bullet struck and adding to that the distance travelled by the car during the time that the firer, having decided to fire, took to perform that action.  Mr. Haag considered that reaction time might be as much as one to one and a half seconds but, for the purpose of the exercise, adopted a range of 0.4 to 0.8 seconds.  If the car was travelling at 30 mph (the minimum estimated) this added a 'reaction' distance of 17.6 feet at 0.4 of a second.  If the car was travelling at 60 mph it would travel 70 feet in 0.8 of a second.

Mr. Haag summarised his conclusions by saying that the Clegg bullet was clearly in substantial yaw when it passed through the rear seat of the car.  The bullet which entered Wound 3 was in a similar substantial degree of yaw.  It was the Clegg bullet.  This bullet entered the body of Karen Reilly at a speed which was significantly less than its discharge velocity.  This explains its failure to fragment.  When one takes account of the lack of deformation of the Clegg bullet and the velocity loss from a Hole 4 'journey' it becomes clear that the shot must have been fired much further back than the original fifty feet estimate. One hundred to one hundred and fifty metres was a reasonable estimate.  Wound 4 was caused by the Hole 8 shot.  That shot could travel orthogonally for a sufficient distance to enter the deceased's body at that point. The damage to the tip which it would acquire in passing through the door and ashtray was not such as to make it impossible or even unlikely that Wound 4 could be caused by the Hole 8 bullet.  The tab which caused Wound 2 was created by the Hole 4 bullet.  The ovoid plug travelled to Wound 4 with the Hole 8 bullet and it was 'jarred or wiped loose' at the entry to that wound.

Under cross examination Mr. Haag was pressed vigorously on his claim that reliance could not be placed on the measurement of 2 to 3 centimetres made by Professor Crane of Wound 4.  He steadfastly adhered to his view that a precise measurement of the skin at the wound opening was not possible.  He accepted, however, that the wound was consistent with a direct hit where the bullet had not struck any intervening object.  He also accepted that a bullet passing through Hole 8 would sustain some damage to the tip.  He was invited to compare the size of holes produced by his test firing damaged and undamaged bullets into pig skin.  He agreed that in bald numerical terms the damaged bullets produced larger holes but was not prepared to accept, on that account alone, that a damaged bullet would always cause a larger hole in the skin than an undamaged one.  The purpose of the tests was to demonstrate that bullets which had suffered damage such as might have been sustained by a Hole 8 shot produced small round holes.  It was then suggested to the witness that merely to strike the tip of the bullet with a hammer so as to damage its tip before test firing it did not simulate the type of damage that would be suffered by a Hole 8 bullet.  He accepted that as well as damage to the tip the bullet might suffer some scuffing.  He did not agree, however, that the bullet would have bent before striking the deceased.  He believed that the bend in test fired bullets was the result of the recovery procedure (i.e. the medium used to trap the bullets after they had been fired).

It was suggested to Mr. Haag that his theory that the Hole 8 bullet caused Wound 4 could not be correct because no part of that bullet was ever found in the rear compartment of the car.  He did not accept that proposition.  He stated that it was entirely feasible that the bullet had not exited the clothing of the deceased, had been retained there until she was removed from the car and that it then dropped from the clothing and was not recovered.

Dealing with his evidence about the symmetry of the shape of the tab found in Wound 2 and the area of partially extruded lead at the boat tail of the Clegg bullet Mr. Haag was shown the tab in conjunction with a different bullet. He described the match between these two items as a "good agreement".  He said that it was a "good fit" but that he would not regard the items as achieving a physical match.  He was then reminded that, in giving evidence before the Court of Appeal, he had said that the Clegg bullet was not a physical fit for the tab.  He agreed that he had said this.

On the topic of the impressions on the Clegg bullet Mr. Haag said that the only source of these was the fibre backing on the seat back.  He agreed, however, that he had test fired a number of bullets in simulated Hole 4 shots through similar material and had been unable to reproduce the impressions on any of the bullets.  In earlier tests he had noted impressions on bullets fired but these were not as deep as those found on the Clegg bullet.  He did not consider that the absence of fibre impressions in the tests which he conducted disproved his theory.  The Clegg bullet had come through Hole 4 or Hole 8.  There was nothing in the Hole 8 route which could account for the impressions.  The seat back fibre was the only possible source of the impressions.  The fact that it had not proved possible to reproduce the impressions did not detract from that central truth.

Mr. Haag gave evidence that L2A2 bullets tended to fragment on striking tissue at 2900 fps.  Some may fragment if they strike metal in yaw at a similar velocity.  They would not fragment, however, at 2400/2500 fps which is the speed at which, he believed, the Clegg bullet was travelling.  He believed that it was certain that the bullets would fragment if they struck tissue at 3100 fps even if not in significant yaw.

The witness was cross examined extensively on the ovoid plug which he had said travelled with the Hole 8 shot to Wound 4.  He agreed that the plug was travelling at about 2900 fps just after it was created.  It would lose velocity much more quickly than the bullet.  There was no way to calculate the velocity of the plug in flight.  He did not consider that the plug could have been adherent to the bullet at the time that the bullet entered the body; if it had been he would have expected the plug to be driven much deeper into the body.  He agreed that if the plug had become detached before it encountered the deceased's clothing that it was more likely to be diverted from the path of the bullet.

The velocity of the L2A2 bullet, when it left the muzzle of the rifle was approximately 3180 fps, according to Mr. Haag.  The bullet lost velocity at the rate of 123 fps over the first 100 feet.  The two sheets of metal in the boot of the car would each retard the bullet by 60 fps.  If the car was travelling away from the firer at 60mph one would have to deduct a further 88 fps to estimate the impact velocity at the third sheet of metal viz. the back seat upright.  On the basis of this evidence Mr. Haag was asked to comment on the results of his own tests which suggested that the width of the hole in the back seat upright indicated that the firer could not have been more than 100 feet away from the car when he discharged his shot.  The minimum velocity of the bullet at the time it struck the back seat must have been in the order of 2850 fps, counsel suggested.  Mr. Haag refused to accept that the distance of the firer from the car could be estimated by reference to the width of the hole.  To seek to extrapolate this from the width of the hole tests would be to misuse the data, in his view. He was unable to say, however, whether those results would justify reservations about Mr.Montgomery's estimate that the firer of the Hole 4 shot must have been some 500 feet from the car.

Dr Graham Renshaw

This witness is a forensic scientist. He has worked with firearms as a forensic scientist since 1971.  From 1981 he has been engaged exclusively in firearms work.  He was the head of the department of firearms in the National Firearms Laboratory in Huntingdon from January 1984 until 1993.  He enjoys a wide experience in the investigation of incidents involving firearms, therefore.

Dr. Renshaw's investigation of the circumstances of the shooting on Glen Road on 30 September 1990 has been unique in his experience.  He found this a more complex case than any he has previously encountered.  He has devoted more time to the investigation of this case than any other.  He was first approached about the case after the first trial and was aware from the outset that Clegg claimed that he had never fired a shot into the rear of the car.  This claim was adopted by Dr. Renshaw as his starting position for the investigation of the circumstances of the shooting of Karen Reilly.  He agreed with counsel for the Crown that this was his a priori position.  That stance must affect one's evaluation of the work carried out by him and I shall have to return to consider it in greater detail presently.

Over the years which have elapsed since Dr. Renshaw's involvement with the case began, he has carried out more than 150 reconstructions firing into simulated Hole 4 and Hole 8 positions.  In his judgment, it is impossible that the Clegg bullet entered the car by the Hole 4 route.  The appearance of the bullet was, in Dr. Renshaw's estimation, consistent with its having entered the car through Hole 8.  The Hole 4 bullet could not have caused Wound 4, he believed, and his explanation for the two wounds, therefore, was that Wound 3 had been caused by the Hole 8 shot and Wound 4 must have been caused by a bullet fired through the open space where the glass was missing on the rear nearside.

He concluded that the Hole 4 bullet had "most probably" fragmented. The fragments travelled towards the central console and either struck there or some other intermediate target.  It was possible that slight damage to the central console had occurred which might have been missed by Mr. Montgomery, Dr. Renshaw suggested.  A piece of lead recovered from the clothing of the front seat passenger, Miss Gorman, may have come from the Hole 4 bullet.  She may, therefore, have been struck by fragments of bullet from the Hole 4 shot.  While the expert opinion was unanimous that the tab found in Wound 2 had been caused by the Hole 4 bullet, it did not follow, in this witness's view, that Karen Reilly had been struck by the Hole 4 bullet.  The tab, which was a ferrous fragment much lighter than bullet fragments, would travel in an 'outer cone' and the heavier bullet fragments would travel in an inner cone. Miss Reilly's body could have been angled in a way which would have allowed her to be struck by the outer cone fragments but not the inner cone material.

Dr Renshaw discovered a different pattern of ejection of spent cases from the rifles of Aindow and Clegg than that found by Mr. Montgomery but his examination of the rifles took place after the rifles had gone back into service and attach no significance to the discrepancy in the findings.  The results of Mr. Montgomery's tests are obviously to be preferred.

He accepted that the manner in which Mr. Montgomery estimated the position of the firer by lining up the rifle sight with the bullet holes on the car provided a rough guide as to the distance from which the shot was fired.  It was impossible to be precise as to the distance that a moving car was from the firer, however.  Otherwise Mr. Montgomery's method provided a reasonably reliable guide.

Initial tests carried out by Dr. Renshaw involved the use of L2A1 bullets because he had been supplied with these by the Ministry of Defence in error. These bullets have a thinner jacket than the L2A2 bullets actually used by the soldiers on the night in question and, therefore, are more liable to fragment.  Dr. Renshaw claimed, however, that his tests were not invalidated because he had been looking for characteristics of the bullets other than their liability to fragment.  The characteristics displayed by these bullets (other than their propensity to fragment) were subsequently confirmed by tests with L2A2 bullets.

Dr. Renshaw's method of recovery of test bullets differed from Mr. Haag's; the latter usually recovered bullets from water which, he had claimed was aerodynamically equivalent to human tissue.  Dr. Renshaw, by contrast, used cotton wool as the recovery medium.  He suggested that, for the purpose of the tests that he was conducting it mattered not whether cotton wool or water was used. I accept that evidence.

The essential distinguishing characteristics of the Clegg bullet were described by Dr. Renshaw.  These were (i) the area of scuffing and galling (ii) two separate features within the scuffed and galled area viz. abrasion of the surface and gouging marks along the longitudinal axis of the bullet; the latter were caused when the bullet was travelling forward (iii) a split in the bullet jacket just below the cannelure (iv) the intact condition of the cannelure (v) a slight extrusion of lead from the open base of the bullet (vi) a prominent but symmetrical step above the centre of the ogive (vii) the protruding head of the penetrator where the bullet jacket is peeled back (viii) the survival of the rifling marks.

Dr. Renshaw explained these features in this way :-  The damage to the tip of the bullet occurred when it passed through the ashtray assembly and the damage to the ogive was caused by the passage of the bullet through the sheet metal of the door.  The survival of the rifling was of critical importance, he suggested.  A Hole 4 bullet's rifling is inevitably and invariably obliterated by its impact, while in significant yaw, with the third sheet of metal i.e. the rear seat upright.  The flattening of the bullet was caused by the passage through the metal of the side of the car.  The bullet did not strike the metal in a manner that would subject it to the side on forces which obliterate the rifling marks.

In Dr. Renshaw's simulated Hole 8 shots the rifling survived even though there was flattening of the bullet.  The cannelure also remained intact.  These features were present on the Clegg bullet.  The only damage to the rifling grooves on the Clegg bullet was longitudinal; it followed, therefore, that the bullet cannot have hit the rear seat upright in yaw because, if it had done, there would be horizontal or, at least, angled damage to these marks.  The grooves on the Clegg bullet had not been subject to the type of impact that would have been inevitable from a strike on the rear seat upright.  It cannot have passed through Hole 4, therefore, Dr. Renshaw claimed.

Another inescapable feature of a Hole 4 shot, according to this witness, was that the prominent shoulder on the ogive, caused as a result of the passage through the first two sheets of metal, was pushed back on the side which struck the third sheet of metal while the bullet was in yaw.  This created a lopsided or asymmetrical appearance to the ogive portion of the bullet and a commensurate dislodging of the cannelure.  These features were not present on the Clegg bullet.

In relation to the Hole 8 shots, Dr. Renshaw said that he installed a witness card (i.e. a card to register the passage of the bullet) some four to six inches from the side of the door through which his Hole 8 shots were fired.  In all but one of these, the bullet was in yaw by the time it arrived at the card.  In his view, therefore, there was no possibility that a Hole 8 shot could have been in an orientation that could have caused Wound 4.  Scuffing and galling were present to some extent on most of the Hole 8 simulated shots.  While their appearance was not precisely the same as that found on the Clegg bullet it was of sufficiently similar quality to allow Dr Renshaw to conclude that the scuffing and galling on the Clegg bullet was consistent with its having come through Hole 8.  By contrast simulated Hole 4 shots did not produce similar scuffing and gouging.

Dealing with Wound 2 Dr. Renshaw accepted that he had been wrong to suggest that the penetrator found in Miss Reilly's clothing might have caused it. That penetrator was damaged and the wound could only have been caused by an undamaged penetrator.  He remained of the view that a penetrator could have been responsible for the wound, however.  He believed that the metal fragment from Wound 4 was the result of contamination.

Dr. Renshaw produced a series of diagrams which, it was suggested, established that, since Aindow had fired the shot which caused Hole 17 and Clegg the shot which caused Hole 18, the Astra car was more likely to have followed a route similar to that described by Clegg in interview and in evidence. These diagrams were advanced by the defence in combination with the evidence of a Mr. Varley who, with a colleague, had carried out various driving tests designed to show that it was possible to drive a car towards what was Aindow's position and then to swerve back to what Clegg claimed was his position. I do not intend to deal with this evidence or the claims made for it at any length.  I will merely say that I came to the firm conclusion that the evidence was wholly inefficacious to support the thesis advanced.  Beyond showing that it would have been physically possible for the car to have travelled in this way (a proposition which was never in dispute) this body of evidence did nothing to render Clegg's account of the route taken by the car more likely, in my opinion.  Mr. Varley's testing methods were open to serious criticism for the manner in which they were conducted but, in light of my conclusion about the shortcomings of the evidence generally, I need not expand on these.

Dr. Renshaw gave evidence that, contrary to his initial view, he now accepted that the impressions on the Clegg bullet were created after the bullet had been fired.  He said that the impressions extended into the scuffed and galled area.  This was important, in his estimation, since it showed that the impressions were created after the event which caused the scuffing and galling. The impressions were present on about one third of the circumference of the bullet.  He did not agree with Mr. Haag that the impressions had been caused by the material which covered the seat back.  In all the tests that he had conducted the linear impressions had never occurred.  Moreover, impressions were found on the opposite side of the bullet to that which was in impact with the seat upright, on the Crown theory.  Dr. Renshaw did not believe that this was possible.

A great deal of time was occupied by Dr Renshaw demonstrating bullets under a microscope which, he suggested, illustrated the coincidence of the features found on the Clegg bullet with those found on bullets fired through simulations of Hole 8 and the differences in appearance between the Clegg bullet and those fired as simulated Hole 4 shots.  I have already summarised Dr Renshaw's evidence in relation to this and will not rehearse it further, therefore.

Dr. Renshaw was of the view that the scuffing and gouging on the Clegg bullet could not have been caused if it had travelled by the Hole 4 route.  A bullet travelling that route would suffer impact damage principally.  That impact damage would be of similar appearance whatever the distance of the firer from the car.  It would obliterate the rifling grooves and the cannelure if it was in a similar degree of yaw to the Hole 4 bullet.  By contrast scuffing and gouging on Hole 8 simulations were similar to that found on the Clegg bullet. Again this was demonstrated under microscope.

In support of his claim that the ovoid plug found in Wound 4 had not come from Hole 8 Dr. Renshaw said that none of his simulated Hole 8 shots had produced a plug similar in size or shape to that removed from the wound. The plugs produced on his tests were roughly rectangular, according to Dr. Renshaw, which was quite different from the shape of the Wound 4 plug.  The edges of the Wound 4 plug were irregular whereas the plugs in his tests were symmetrical.  Further the ovoid plug "turned in on itself " which the others did not.  He concluded, therefore, that the ovoid plug had come from the rear seat upright and had been created when the Hole 4 bullet had passed through it.  It had not struck the deceased directly, however, but had been picked up as a contaminant.  Dr. Renshaw also disputed Mr. Haag's theory that the plug had 'slipstreamed' the Hole 8 bullet.  This had not occurred in any of his test firings. The plug would surely be dislodged during the bullet's passage through the ashtray assembly he suggested.  This was especially so because the ashtray had the stripping back effect on the tip of the bullet.

Dr. Renshaw gave evidence that in tests where bullets were recovered in water one tended to find lead extrusion from the base of the bullet where the 'envelope' was open.  This accounted for the lead extrusion from the Clegg bullet, he said.  The flattening of the bullet (which precipitated the extrusion) occurred after the bullet struck the body.  Dr. Renshaw had inspected the pattern of extrusion of some of Mr. Haag's bullets.  He suggested that examples of the step which according to Mr. Haag had been caused by the tab restraining the extrusion of the lead could be found in other bullets.  The mechanism for this was not entirely clear but Dr. Renshaw believed that it was caused by one side of the lead "flopping over" the other.  Moreover the bullet had no surface damage such as might have been produced by the tab.

Under cross examination Dr. Renshaw agreed that if the bullet which came through Hole 4 did not fragment it must have struck Karen Reilly.  He also accepted that a bullet fired through the seat upright at the level of yaw of the Hole 4 bullet can remain intact although his tests suggested that it was more likely to fragment.  Despite these concessions Dr. Renshaw remained adamant that the Clegg bullet came through Hole 8 and could not have come through Hole 4.  For the Crown Mr. Weir QC dealt with this issue in the following passage of his cross examination of the witness,

"Q. The one thing you never change Dr. Renshaw, is your view through thick and thin, come hell or high water, you stick to the hypothesis that the Clegg bullet came through Hole 8?

A. Absolutely, all my tests and experimentation prove that without any doubt in my view.

Q. That is really your a priori position, Dr. Renshaw?

A. Absolutely.

Q. Everything that you discover in the case you have to mould and bend to make it fit that a priori assumption?

A. That is the position I am coming from in this case".

 

At a subsequent stage in his evidence Dr. Renshaw said that he "had to fit all the other findings around" this position.  Later, towards the end of his evidence I asked him what he understood by the expression 'a priori position'.  He said that it meant that his clear conclusion, reached as a result of his preliminary tests, was that the Clegg bullet had been fired through Hole 8 and possessed none of the characteristics of a Hole 4 shot.  This was his starting point.  All other aspects of the case he tried to "fit into [his] own findings".  He agreed that this preliminary conclusion dictated how he approached the other aspects of his inquiry. I then asked the witness whether his approach was that the preliminary conclusion that the Clegg bullet had come through Hole 8 and could not have come through Hole 4 meant that any other aspect of his investigation which did not coincide with that conclusion must be dismissed or explained away.  He replied, "There must be an explanation". It was only when I asked him whether he considered that this was a proper scientific approach that he said, for the first time, that throughout the investigation he had always questioned whether his initial conclusions were correct.

I have serious misgivings about Dr. Renshaw's approach to the investigation of this shooting incident.  I do not suggest nor do I wish to appear to imply that he behaved unethically.  I believe, however, that from a very early stage in his investigation he took up an a priori position that the Clegg bullet could not have come through Hole 4 and that all subsequent aspects of the investigation were conducted on the basis that each had to be found to coincide with that conclusion or be dismissed as an anomaly.  I consider that the intellectual rigour which ought to have been applied to his investigation was not as strongly present as it should have been and that the authority of his evidence has been undermined on that account.

Dr. Renshaw confirmed that Clegg's evidence that he had fired his first shots at the car after it had appeared to hit Aindow could not be correct.  He had fired at the car with a tracer round when it was forty to fifty feet away. None of Clegg's shots hit the windscreen.  His fourth shot did not hit the wing; the shot which hit the wing must have been the first or second.  Dr. Renshaw also confirmed that Clegg had never claimed to have fired the shot which was fired through Hole 8.

Dr. Renshaw was cross examined at length about the spread of fragments that would occur if the Hole 4 bullet fragmented when it struck the rear seat upright.  He agreed that there was no evidence of fragmentation to be found to the sides or backs of the front passenger seats.  He accepted, therefore, that the spread of the bigger fragmenting particles cannot have been wider than six inches in the area between the seats because there was only a six inch gap at that point.  He agreed that if the bullet had fragmented that substantial fragments would have been created sufficient to cause visible damage to the radio console and that they would have travelled as far as that if they had not been intercepted by some intervening object.  He suggested, however, that the front seat passenger or the driver might have been struck by the fragments.  It was now known that Miss Gorman had a wound to the right upper arm.  (This evidence had been given by the surgeon who had treated Miss Gorman).  Various other possible sources of injury to Miss Gorman were discussed but I need not rehearse these.  Dr. Renshaw accepted that if Miss Gorman was struck by a fragment from the bullet of Hole 4 she would have to get her shoulder to a position within two inches of the probe which had been used to illustrate the path of the hole 4 bullet.  He also agreed that there would be significant injury as a result.

Dr. Renshaw was cross examined about the tab which was found in Wound 2.  He said that, for the tab to hit the body and the bullet which caused the tab to miss it, Miss Reilly's body must have been parallel to the seat squab rather than the seat back.  Thus on his theory, the tab would have been propelled further out than the bullet fragments, it would have collided with the deceased's back just as she was falling on to the seat squab with her body at that very moment positioned to receive the tab but just above the plane of the fragments from the bullet.

On the topic of whether the Hole 4 bullet fragmented Dr. Renshaw agreed that one could not tell from the holes made in the foam of the seat back whether it had.  He suggested that if the bullet had fragmented there would be a lead trace in the foam.  He agreed, however, that no evidence of this had been found.  He would have expected the lead to begin to vaporise when the bullet struck the seat back.  The vaporisation would be complete by the time the bullet emerged from the foam so that he would not expect there to be a lead trace on the clothing of the deceased from the fragmenting Hole 4 bullet.

Dr. Renshaw was asked about the so called X shot.  This was the shot which, on the defence theory, had caused Wound 4. It was designated the X shot because of the suggestion that it had entered the car through the open area where the rear nearside window should have been.  He suggested that there was evidence that the window had been broken some time before.  Mr. Montgomery had referred to impact damage on the external bodywork of the car near the bottom left hand corner of the rear window, probably caused by a brick.  It was suggested to him that the area of damage was well removed from the area where the window would be and that the suggestion that this finding supported the notion that the window had been broken by a brick was fanciful. He did not accept that and pointed out that, in any event, the window could have been broken by an earlier shot such as the bullet which caused Hole 10.

On the topic of the ovoid plug having entered Wound 4 by contamination Dr. Renshaw was not prepared to accept that this was unlikely. He accepted that the plug cannot have arrived at Wound 4 if his theory was correct.  If it had been caused by the Hole 4 shot and had hit the deceased one would have the impossible scenario of the deceased being struck on either side of Wound 3 by fragments caused by the Hole 4 bullet but not by the bullet itself.  For Dr. Renshaw's theory to survive it was essential that the ovoid plug enter the body other than by direct strike, therefore.  He acknowledged that he was unable to give the precise mechanism for the contamination to occur.  He accepted that the possibility of the plug having entered the wound by contamination was low.  The following exchange then took place between the witness and myself:-

"Mr. Justice Kerr: Well, instead of addressing it in terms of the probability being very, very low, are you able to conceive of any possible way in which that ovoid plug, bereft of any kinetic energy whatever, simply lying passively on the seat squab, can penetrate three layers of clothing and find itself at precisely the point where a wound has already been created?

 

The Witness: Well, as I said … I can't describe a particular mechanism but it must have happened. How it happened I don't know.

 

Mr. Justice Kerr: Well, it is all very well to say it must have happened because that is the only thing that can reconcile it with your theory, but perhaps a better way of approaching it is this: if you were confronted with the suggestion that it is impossible to conceive how that could have happened what would your answer be?

 

The Witness: Well, I would have to say, well given that there are holes in the clothing, in other words there are orifices through which - - and they are large enough for the ovoid plug to pass, it can pass first of all through the outer layer of the anorak, it can then pass through the inner layer because there are holes in that, and it can pass through the T shirt because there are holes in that. "

 

The witness later accepted that the plug would have to find its way through an existing hole in the outer fabric of the anorak, then through a separate hole in the inner layer and finally through another hole in the T shirt and find itself at Wound 4.  He agreed that, if he was not inhibited by his theory, the suggestion that this plug had found its way to Wound 4 would be difficult to accept.

Dr. Renshaw accepted that the only fibres on the route between Hole 8 and Wound 3 were those found in the clothing of the deceased.  He also accepted that there was no weave pattern to be found on the impressions found on the Clegg bullet.  He suggested, however, that the fibres from the clothing must be in some way responsible for the impressions on the bullet although, again, he was unable to explain how that could have occurred.  He believed that in some way the fibres must have been pulled from their weave pattern and somehow got caught up in the bullet.  Despite this speculative view he claimed that he knew that the seat back material could not have been the source of the impressions because he had never seen them reproduced when he had fired test bullets through similar material.  He agreed that the impressions were caused by sideways pressure on the bullet.  They had been created after the bullet had been fired.  Indeed, they had been created after the bullet had passed through steel.

There followed a protracted passage on the question of whether the impressions overlay the scuffing and galling or vice versa.  The evidence given by Dr. Renshaw on this question prompted the recall of Mr. Haag.  Again I do not propose to rehearse the evidence on the point.  It does not appear to me that one could ever be entirely convinced whether the impressions were created after the scuffing and galling or the other way round.

Dr. Renshaw was cross examined about his Hole 4 simulated shots.  It was suggested to him that many of these had steel adhering to them when they struck the third sheet of metal and that this would have rendered them useless as comparators.  He refused to accept this saying that in the majority of cases the nose cap came off and that typical damage was caused to all of the Hole 4 shots which survived intact; this was quite different from the damage to the Clegg bullet.

He was then questioned about his evidence that the plugs produced by his Hole 8 simulated shots were smaller and of different shape to the plug found in Wound 4.  It was suggested to the witness that he had wrongly represented these as nose plugs when he knew that they were parts of ovoid plugs produced by Hole 8 bullets which, if they were reassembled, would equiparate with the plug found in Wound 4. He did not accept that.

Conclusions on the ballistics evidence

Hole 18

I am satisfied that Clegg was the soldier who discharged the shot which caused Hole 18. I am also satisfied that it was a tracer round and, therefore, the first or second shot fired by him that evening.  At the moment that the shot was fired Clegg was at least 40 feet from the car.  From the angle of the probe inserted by Mr. Montgomery in this hole it is clear that the shot was not fired by Clegg when the car was on the opposite side of the road.  The car must have been approaching Clegg's position and slightly to his left at the moment he fired.

When he decided to fire the car was at least 60 feet from Clegg.  I am satisfied that its minimum speed was 30mph at that time.  At that speed the distance travelled over half a second would be 22 feet.  I am satisfied that Clegg could not have decided to fire and translated that decision into action in anything less than half a second.

The distance of the firer of the Hole 4 bullet from the car

It is impossible to say with any degree of accuracy how far the firer of this bullet was from the car when he opened fire.  Mr. Montgomery's estimate of the distance of the firer from the car plainly cannot assist since the shot was fired at a greater distance than fifty feet.  If one could be certain that the Hole 4 bullet caused Wound 3 one could be sure that the person who fired it was likely to have been at least 200 feet from the car since it was highly probable that a shot fired at less than that distance would fragment.  Ultimately, therefore, the resolution of this issue will depend on one's conclusion as to whether the bullet fragmented.

It is clear, however, that if the bullet did not fragment it could have been fired by any of the members of V10A, including Clegg.  I am satisfied that all members of the patrol had a view of the car and, therefore, the opportunity to fire at it for a considerable distance as it travelled down Glen Road.  The suggestion that Clegg could only have seen it for a distance of 72 metres if he remained on the footpath was predicated on the car having maintained a course on its own side of the road.  It is clear, however, that it travelled on to its wrong side after it passed his position and I am satisfied that it did so within sight of him.  I am also satisfied, therefore, that he had the opportunity to fire on it when it was sufficiently far away that a shot fired through Hole 4 would not necessarily fragment.

In this context, I do not consider that the location of the spent cases from Clegg's firing make it any less likely that he fired the Hole 4 shot.  The discharge pattern of the rifle when it was tested under Mr. Montgomery's supervision was behind the firer and to the right.  The discovery of Clegg's bullets in the grass verge is not inconsistent with him having fired from a position on the footpath towards the car as it travelled down the Glen Road on its wrong side.

Did the Hole 4 bullet fragment?

Several aspects of the ballistic evidence must be considered under this heading.  One of the most important, in my opinion, is the absence of evidence of fragmentation within the car.  On Dr. Renshaw's theory, the bullet would have begun to fragment when it struck the rear seat upright.  If it did, several consequences should have occurred.  I am satisfied that traces of lead ought to have been deposited on the foam of the rear seat.  None was found. I believe that the fragments are likely to have caused a number of tears or rents in the foam and the upholstery.  This did not happen.  The fragments should have struck and damaged the backs of the driver's and front passenger's seat.  No damage to the seats was visible.  Fragments ought to have travelled forward and struck the central/radio console causing substantial damage to that area.  Mr. Montgomery found none.

Dr.Renshaw sought to explain the absence of these expected events in a variety of ways.  He advanced various theories about the absence of lead either on the foam or on the deceased's clothing.  I regret to say that I found none of these at all convincing and I was left with the impression that many of his explanations were ad hoc.   He suggested that some of the fragments which hit the backs of the front passenger and driver's seats may have bounced off.  This seems to me to provide a less than likely explanation for the complete absence of any damage there.  It would be remarkably fortuitous that none of the fragments which collided with the seats had the kinetic energy to inflict any damage.

The lack of visible damage to the central/radio console elicited two possible explanations from Dr. Renshaw; a third was implied but never explicitly stated.  He suggested that the injury to Miss Gorman's right arm might have been caused by one of the larger fragments.  This is, in my opinion, possible but not likely.  To get her arm into a position to sustain injury from a Hole 4 fragment Miss Gorman would have had to have her arm jutting into the space between the two front seats at a curious angle and at an abnormally low level.  Given that the car was being fired on by a number of soldiers at the time, however, it is just conceivable that she might have adopted this posture.

The injury to Miss Gorman can account for only one of the fragments, however.  Dr. Renshaw agreed that a number would have been propelled towards the console if the bullet had fragmented at the rear seat upright.  One must presume that the evidence of Dr. Renshaw about the possibility of Wound 2 having been caused by a penetrator was adduced in an attempt to explain the failure to discover more bullet fragments.  If this was its purpose (and this was never made clear) it can be disposed of quickly.  Apart, arguably, from having a shape which is similar (although significantly larger) than a penetrator there is nothing about the wound which in any way suggests that it might have been caused by a penetrator.  If that had been the cause of the wound, one would have expected it to be smaller rather than larger than a penetrator.  Moreover, the wound could only have been created by a penetrator in pristine condition.  It is improbable in the extreme that a penetrator from a bullet which had passed through three sheets of metal and then fragmented would be less than grossly deformed.  In any event, I am entirely satisfied that Wound 2 did not extend further than the depth which Professor Crane found when he excised it.

Dr. Renshaw proffered two suggestions to account for the failure to discover damage to the console.  Firstly he said that air vents in the console area might have admitted the flying fragments.  I was singularly unimpressed by this explanation.  The air vents occupied a tiny fraction of the console space and were, in any event, of a dimension that would admit only the smallest fragments.  I found it impossible to accept this as a possibility.  Dr. Renshaw's other explanation was that Mr. Montgomery may have missed damage to the console during his inspection of the car.  I have no hesitation in rejecting this unworthy suggestion.  The work which Mr. Montgomery undertook in this case was characterised by painstaking and meticulous care.  While the precise significance of damage to the console might not have been immediately obvious to him at the time of his inspection, I have no doubt that his experience would have made him realise that it was potentially highly significant and that he would have noted it carefully.  In any event, Mr. Montgomery has said in evidence that he carefully inspected the area and found no damage.  I accept that evidence without hesitation.

Another aspect of the inquiry into whether the bullet fragmented relates to the tab which entered Wound 2 and which, it is agreed by all, was caused by the bullet which came through Hole 4.  If the tab struck the deceased how did the bullet fragments miss her?  Dr. Renshaw's explanation is that the deceased was falling backwards at the time.  Her body was angled just enough to allow the tab to enter the right side of the back and miss the left side.  It was also in mid air at a point low enough to receive the tab (which was travelling at the outer part of the cone of bullet and seat upright fragments), but high enough to miss the heavier fragments in the inner part of the cone.

The tab must have been within a few centimetres at most of the heavier fragments if, indeed, the bullet fragmented.  The odds against the deceased falling to precisely that point at the instant that the tab and the other fragments were passing through the car must be formidable.  I have the greatest difficulty in accepting Dr. Renshaw's explanation, therefore.

The tab was relevant to this debate for another reason.  Both Mr. Montgomery and Mr. Haag gave evidence that it was a perfect match to the end of the Clegg bullet.  If it had been created by that bullet, clearly it had travelled through Hole 4 and the question of it having fragmented did not arise.  I have already summarised the evidence in relation to this issue and need not repeat it. I found that there was a remarkable congruence between the shape of the tab and the step on the partly extruded lead at the boat tail of the Clegg bullet. Having examined other tabs in association with the bullet, however, I would not be prepared to hold that the shape of the tab established that it had come from the Clegg bullet.

I am satisfied that a substantial percentage of bullets fired in simulation of Hole 4 bullet fragmented, even at substantially greater distances than the original estimate of 50 to 100 feet.  A bullet fired at 300 feet has, I am satisfied, a reasonable chance of survival, however.  I accept Mr. Haag's evidence that it will reduce in velocity to something in the region of 2400/2500 fps.  As I have said, it is impossible to be certain of the range at which the Hole 4 bullet was fired.  There is nothing in the evidence available to me, however, which precludes its having been fired at a distance of 300 feet or more from the car.  If it was fired from that distance, I am satisfied that it enjoyed a good chance of surviving intact.

All of the factors which I have considered on this topic so far either are neutral on the question of whether the bullet fragmented or point strongly against its having done so.  In particular, the absence of any damage within the car and the improbable coincidence required in time and space for the deceased's body (on Dr. Renshaw's theory) to be struck by the tab create a formidable case against the bullet having fragmented.

One further aspect requires to be considered, however.  This relates to the comparison of the appearance of the Clegg bullet with those fired in simulated Hole 4 tests.  This subject will have to be considered separately but it has a clear relevance to the present discussion.  Dr. Renshaw accepted that if the Hole 4 bullet did not fragment it must have struck Karen Reilly and can only have struck her in Wound 3.  This was an inevitable concession.  If the bullet had remained intact after emerging from the rear seat upright it would have inflicted massive damage to the central radio console unless it struck an intervening object.  Realistically, only the body of Karen Reilly could have interrupted its flight.  Equally, Wound 3 was the only injury that it could have caused.  The bullet was clearly in yaw; it simply could not have been transformed to a flight path that would have allowed it to inflict Wound 4.

If, on a comparison of the Clegg bullet with the other test bullets it became clear that it could not have followed the Hole 4 route, one would be driven to conclude that the Hole 4 bullet did indeed fragment, however unlikely that might appear from all the other evidence.  I shall consider the evidence about the appearance of the Clegg bullet and that of those test fired in simulated Hole 4 conditions in a later section of this judgment.  Before doing so, however, I must deal with the related subjects of the ovoid plug, the mechanism of its entry into Wound 4 and the Hole 8 shot.

The ovoid plug

It was accepted that the ovoid plug found in Wound 4 must have been created by either the Hole 4 or the Hole 8 shots.  Dr. Renshaw considered that it could not have been caused by the Hole 8 shot.  His principal reason for this was the result of his test firing of simulated Hole 8 shots.  I consider, however, that these fell far short of establishing that an ovoid plug such as was found in Wound 4 could not be produced by a Hole 8 shot.  I found it curious that Dr. Renshaw should seek to demonstrate the size of the plugs by placing them on the tips of bullets when, as he acknowledged in cross examination, they had not been formed in that way.  I also found his claim that the shape of the plug from Wound 4 was markedly different from those produced by his Hole 8 shots impossible to accept.

Mr. Haag's theory that the ovoid plug had been caused by the Hole 8 shot rested mainly on his conviction that this shot had struck the deceased in Wound 4.  I shall deal in a later section of the judgment with whether the Hole 8 shot caused Wound 4.  It is sufficient for present purposes to say that this is at least possible.  I consider that it is also possible that the Hole 8 shot created the ovoid plug.  All of its features viz. its size, its shape, the copper deposit on its concave surface and the dimpled appearance of its convex surface are all consistent with the plug having been created by the Hole 8 shot.

I find it less easy to accept that it travelled with the Hole 8 bullet to the wound and was there wiped from the bullet so that it remained embedded at the wound opening.  This is a possible explanation for its arrival at the point where it was found - and infinitely more likely than its having reached that point by a process of contamination - but I am unable to say that I am convinced beyond reasonable doubt that this is how it entered Wound 4.

The mode of entry of the ovoid plug into Wound 4

I have already dealt with this topic in my commentary on the pathology evidence.  I need not say much more here.  Dr. Renshaw's evidence ultimately resolved to the statement that the contamination theory had a low probability. In my judgment it is wholly improbable.  For the plug to find its way to the entry of the wound without causing scratches of the back would be remarkable enough if the back was exposed.  On Dr. Renshaw's scenario, however, it must burrow its way through three separate layers of clothing, happening to coincide with a pre-formed hole in each before arriving at the wound. I am satisfied that the plug did not arrive at Wound 4 in that way.

If the plug did not enter the wound by contamination, how did it get there?  The Crown says that either it came with the Hole 8 bullet or it was part of the fragment caused by the Hole 4 bullet.  It cannot have been propelled into the wound by the Hole 4 bullet, however, without that bullet or a fragment of it striking the deceased.  This makes the Hole 8 theory all the more plausible, the prosecution submits. I consider that this submission is irresistible.

Hole 8

Both the prosecution and the defence claim that the bullet which entered the car by Hole 8 inflicted fatal injuries to Karen Reilly.  The Crown asserts that the bullet which came through that hole caused Wound 4 and must have been fired by someone other than Clegg.  The defence says that Clegg fired that bullet and it was found at the end of the track of  Wound 3.

Two principal issues arise on these competing claims.  First, was the damage which the bullet sustained during its passage into the car such as to make it impossible for it to cause Wound 4?  The second issue is whether the bullet went into yaw or tumbled before it struck Karen Reilly.  If it did, it is not in dispute that it could not have caused Wound 4.

I am satisfied that the bullet which entered Hole 8 must have been damaged as a result of its passage through the sheet metal of the door, through the plastic of the ashtray recess and its impact with the ashtray itself.  I do not consider, however, that such damage as the bullet sustained would make it impossible for it to inflict a wound such as Wound 4.  The wound is not large but I accept Mr. Haag's evidence that one should not regard Professor Crane's estimate of its size as providing an absolute and precise measurement of its dimensions.  The damage to the tip of the bullet may not have been identically replicated by Mr. Haag's method of striking the end of the test bullets before firing but his tests on animal skin established to my satisfaction that it was possible to cause small rounded wounds by bullets with similar damage to the Hole 8 bullet and fired at a roughly equivalent angle.

The position about the tendency of the Hole 8 bullet to go into yaw or to tumble was more difficult for the Crown, in my opinion.  Mr. Haag thought that Mr. Montgomery had underestimated the distance at which a bullet would begin to yaw after passing through Hole 8 but I consider that there is at least a possibility that yaw or tumbling will begin within three to nine inches of the bullet entering the rear compartment of the car.  I accept that there was no possibility of the bullet correcting itself within the space available so as to cause an orthogonal strike on the body of the deceased.  I have concluded, therefore, that the Hole 8 bullet could only have caused Wound 4 if it struck the deceased within three to nine inches of its entry point.

The Crown asserts that this is what must have happened because the impressions on the Clegg bullet make it impossible that it came through Hole 8. I shall deal with the impressions point in the next section of the judgment.  For reasons that I will develop in that section I do not consider that it has been proved to the requisite standard that the only possible explanation of the impressions is the passage of the bullet through the fabric of the seat back.  This remains the most likely explanation but I cannot exclude the possibility that there is some alternative, as yet unknown, explanation.  In light of that finding I must also accept as possible that the Hole 8 shot caused Wound 3.  In so concluding I have borne in mind the evidence of Mr Haag that all Hole 8 shots acquire a distinctive kidney bean shape which the Clegg bullet did not have.  I accept that this evidence makes it less likely that Clegg's bullet entered through Hole 8 but I cannot regard the evidence as possessed of the compelling quality needed to extinguish that possibility.  If the bullet which entered Hole 8 struck the deceased after it began to yaw the only wound which it could have caused was Wound 3.  As soon as one admits the possibility that the bullet struck the deceased after it began to yaw, one cannot avoid the possibility that the Hole 8 shot caused Wound 3.

The appearance of the Clegg bullet

Of the characteristics which Dr. Renshaw identified as distinguishing this bullet from those which he and others had fired, it appears to me that the most important are (1) the rifling marks (2) the cannelure and (3) the retraction or shouldering of the ogive.

He became convinced at an early stage of his investigations that these three features in particular as they appeared on the Clegg bullet were so unalike what was found on the test fired bullets in Hole 4 simulations that it was not possible that the Clegg bullet followed the Hole 4 route.

It is beyond doubt that the bullets produced by Dr. Renshaw during the trial and which he suggested were representative of the Hole 4 tests had a significantly different appearance from the Clegg bullet.  In all of these the rifling marks were entirely obliterated on the impact side to the extent that they could no longer be seen or felt.  It is also the case that on each of the bullets the cannelure had been dislodged from its pre-firing position.  I was not as convinced from my own examination of the bullets that the shouldering on the Clegg bullet was substantially different from the other bullets as Dr. Renshaw claimed.  I acknowledge, however, that the interpretation of the appearance of bullets requires a high level of expertise and it is significant that Mr. Montgomery accepted that when a bullet fired in a Hole 4 simulation goes through the third layer of steel in yaw that a discernible shoulder drop on the impact side is highly likely.  He also accepted that in all simulated Hole 4 shots this feature was present and that the Clegg bullet did not have it  - or, at least, did not have it to the same extent as all the other simulated Hole 4 shots.

Mr. Montgomery, despite these concessions, was not prepared to accept that there was any possibility that the Clegg bullet had not entered the car by the Hole 4 route.  He made the reasonable point that the Clegg bullet could never be reproduced perfectly because it was impossible to recreate all the circumstances which contributed to the unique appearance of that bullet.  It appears to me, however, that his acceptance that all 'Hole 4 bullets' will have a discernible shoulder drop is of particular importance.  If all such bullets have this feature and it is not present on the Clegg bullet, can one be certain that the Clegg bullet passed through Hole 4?

On the prosecution case that anomaly is more than compensated for by the presence of the disorganised impressions on the circumference of the Clegg bullet. It is suggested that these can only have come from the seat back cover.  In my view there is considerable force in this claim. I do not consider that there is any possibility that these impressions were created by the deceased's clothing. The point at which maximum pressure would have existed between the bullet and the fibres was when it was penetrating the clothing.  At that point the fabric of the clothing would still have been in weave and if the fibres had caused impressions they would have replicated the weave on the bullet.  The fact that the impressions have never been duplicated in all the test fire results, however, cannot be ignored.  I do not consider that the attempt by Mr. Haag to replicate the impressions by striking fibres against bullets with a hammer is a substitute for results in a test firing situation.

Ultimately, however, this question must be considered on the basis that Dr. Renshaw is adamant that the features present on all simulated Hole 4 shots were missing on the Clegg bullet.  He is equally adamant that the absence of those features makes it impossible that the Clegg bullet entered Hole 4.  Unless I was convinced that this evidence had to be rejected I could not be satisfied beyond reasonable doubt that the bullet which caused Wound 3 entered the car by Hole 4.  I cannot be so satisfied. I strongly suspect that this is how the bullet entered the car but suspicion - even of a high degree - cannot substitute for proof.

It follows that, despite the considerable body of evidence which strongly suggests otherwise, I cannot be certain that the bullet which entered Hole 4 did not fragment.  I am also bound to accept that it is possible, again despite all the indications to the contrary, that the ovoid plug entered Wound 4 other than by being propelled there by the Hole 8 or the Hole 4 bullets.

Final Conclusions

The Hole 18 shot

Nothing that Clegg said in evidence could justify the firing of this shot. Indeed he claimed not to have fired until the car appeared to hit Aindow.  The evidence in relation to this shot proves beyond any doubt whatever that this claim was wrong.  I have concluded that it is possible that the car did deviate to some extent as it drove away from the VCP.  I have already observed that the potential danger presented by a car travelling at speed from side to side does not necessarily justify opening fire.  I am not prepared to hold, however, that the prosecution has established beyond doubt that the car was not perceived by Clegg to present a real and immediate danger to him or other members of the patrol at the time that he opened fire with the Hole 18 shot.  I do not believe that he thought that a terrorist incident was taking place but it is possible that he saw the car accelerating towards him and the other members of the patrol at speed and in the limited time that he had to make a judgment, decided that he had no alternative but to open fire. I do not suggest that this is likely; merely that it is possible.  The existence of that possibility entitles Clegg to an acquittal in respect of the Hole 18 shot.

The Hole 4 shot

For the reasons I have already given, I cannot be certain that Clegg fired the shot which entered the car at Hole 4.  I think that it is very likely that he did but I cannot be sure of it.  He is therefore entitled to be acquitted in relation to this shot.

The Hole 8 shot

If Clegg did not fire the Hole 4 shot he must have fired the Hole 8 shot. The prosecution have submitted that if I conclude that he fired this shot he should be convicted of murder because no justification for the firing of this shot was offered by him and none exists.

It is true that Clegg offered no justification for firing into the side of the car. Indeed he claimed never to have done so.  If he fired this shot he was standing no further than twelve feet from the car at the time he fired.  Again, however, I am not satisfied that it has been established to the requisite standard that there is no possibility that , at the time he fired that shot (if, indeed, he did fire it) he did not perceive himself or his colleagues to be in imminent danger and I am not prepared to convict him in relation to the discharge of that shot. He must, therefore be acquitted of the offence charged in Count 1.

 

Did Clegg fire after the car?

I have dealt with this matter at length in the section of the judgment entitled 'The shots fired by Clegg'.  I accept Constable Gibson's evidence that he saw all four members of V10A firing after the car.  I also consider that Clegg's evidence that he did not even look in the direction of the car after it had passed him was a deliberate lie, told in an attempt to conceal the fact that he had fired after it.  I am, therefore, satisfied beyond any doubt that Clegg did fire after the car.  I cannot be satisfied that Clegg's bullet struck Karen Reilly but I am fully convinced that he fired after the car intending to hit and disable the driver.  I am satisfied that he did not entertain any fear for his own safety or that of any of his colleagues at that stage.  I am further satisfied that Clegg did not fire after the car with the intention of preventing crime or to effect the arrest of any of the occupants of the car.  No defence under section 3 of the Criminal Law Act (Northern Ireland) 1967 is available to the defendant. I, therefore, find him guilty of the offence charged in the second Count of the indictment.

Two further final matters require brief mention.  At the end of the Crown case I was invited to direct a verdict of not guilty on both counts.  It was suggested that the Crown had confined its case on the second Count to the first three shots and that the evidence adduced did not raise a prima facie case that the defendant was not acting in self defence.  It was submitted that the only evidence which could gainsay this defence was that of Constable Gibson and this was so "contradictory, uncertain and flawed" that it could not provide the basis of a prima facie case.  It will be clear from my earlier observations on this witness's evidence that I did not accept that his evidence was so deficient. Furthermore, although the Crown in opening had confined its case on the second Count to the first three shots, it was clearly available to me to find that the evidence in relation to the final shot of the accused raised a case against him on the second Count.  In light of my acquittal of the accused of the offence charged in the first Count, I do not intend to deal with my reasons for refusing a direction on that count.

The report of the investigation by Strathclyde police into the circumstances of the shooting was submitted in evidence without formal proof. Certain parts of the report were deleted by agreement.  I have read the report and carefully considered its findings.  In light of the views which I formed on the other evidence in the case, however, I have not found it necessary to refer to these findings and they played no part in the conclusions which I have reached.

IN THE CROWN COURT OF NORTHERN IRELAND

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THE QUEEN

-v-

LEE WILLIAM CLEGG

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J U D G M E N T

 

OF

 

KERR J

 

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