Contriving Evidence

In attempt to divert from criminal conduct within the Prosecution Service the Justice Minister, David Ford, MLA has been maintaining the malicious prosecution against me based upon evidence not relied upon by the Trial Judge or the Court of Appeal. Kerr LCJ had expressed concern about how it came about (see The Prosecution)and had asked the Prosecutor to bring his Witnesses before him.

At least three elements of the evidence against you remain intact — (i) Corporal Blakelock’s statement that he stopped you at the scene, and you took a

coffee jar bomb out of your pocket; (ii) the discovery of traces of RDX explosive on your left hand; and (iii) your explanation for your presence at the 

scene at that time, which the trial judge did not believe.  (Justice Minister, David Ford, MLA, 5th July 2011)

I shall deal with each of the Justice Minister's alleged elements in sequence and show conclusively that the Justice Minister is attempting to conclude on the evidence differently than Judge Petrie did at Trial or any Appeal Court concluded:

(i) Corporal Blakelock’s statement that he stopped you at the scene, and you took a coffee jar bomb out of your pocket;

The Trial Judge was critical of the Soldier's evidence and did not rely on their contradictory accounts but stated in his Judgment that his "main criticism" was because I remained silent at the scene. The Judge's adverse inference was later shown to be wrong and the Court of Appeal in 2002 found the conviction based upon it to have 'unlawful'.

The Justice Minister is further usurping the role of the Judiciary by disregarding Kerr LCJ’s verdict (January 2007) and reference to the Soldiers false accounts that "an injustice would occur if the appellant is denied the chance to have that issue considered". In addition, the Justice Minister is violating my right to a fair trial after Kerr LCJ concluded that to use either soldier’s evidence as it now stands discredited would be an injustice to my right to an open and fair hearing in accord with Article 6 ECHR. The right to a fair trial also embraces the right to confront and cross-examine witnesses. Those were the LCJ’s concerns and reasons for why he re-opened my appeal in January 2007.

Although Blacklock alone was available at the appeal in 2010 the Court took the reasonable view that there was little point in speaking to only one half of a discordant duet. The 2010 Appeal Court did not have the opportunity to speak to both soldiers as it had expressed a desire to do. It is notable that the Justice Minister does not also refer to Boyce’s evidence which in technical legal terms remains as ‘intact’ as Blacklock’s does. This is despite the fact that in 1998 all four soldiers made fresh statements in accordance with the Criminal Appeal Act; Boyce retracted his whole account at trial in order to tender a new version and swore on oath that both versions were the truth. Corporal Blacklock went back to re asserting what at Trial he conceded to be untrue. A third soldier, Private Whillis, disclosed that he had sat at the end of the alleyway, in June 1991, "punching" himself in the stomach.

In order for the Justice Minister to rely upon the unreliable evidence of Blacklock then it requires from the Justice Minister willingness to shutting his eyes to the impropriety on the part of the Prosecutor. The Justice Minister is freely participating in, and taking advantage of, the Prosecutor’s dishonesty by seeking to use false evidence against me or to recklessly not care that the prosecution evidence against me is false.

It is inconceivable that the higher authorities of a State should be, or at least should be entitled to be, unaware of the existence of such a practice. Furthermore, under the Convention those authorities are strictly liable for the conduct of their subordinates; (Ireland v UK (Application no. 5310/71) Strasbourg, 18 January 1978, para 159)

The Justice Minister has stated in his letter, dated 5^th July 2011, that he holds no "governance responsibilities towards the PPS" as explanation for his refusal to take proper actionable regard with the information that I have provided him with.[2] In his letter the Justice Minister, David Ford, denies 'colluding' with the PPS despite internal documents and the DoJ's Lawyer, Mr McGleenan, confirming collaboration throughout the whole process. David Ford has completely discredited himself in this matter.

“(ii) the discovery of traces of RDX explosive on your left hand;”

The Justice Minister’s false allegation that incriminating forensic evidence exists against me highlights the dangers of the executive infringing the jurisdiction of the courts. The Justice Minister has effectively “crossed the Rubicon and burnt his boats.” He has far exceeded his powers in order to usurp the role of the Judiciary. The overwhelming weight of ALL the forensic evidence has always supported my innocence.

In his Judgment the Trial Judge concluded on the forensic evidence as follows, “the forensic evidence did not assist the Crown”(Page 3) In 2002 the Court of Appeal concluded (at page 6) that it did not have any doubt with “the validity of” Judge Petrie’s conclusions on the forensic evidence. Not being a court of law the Justice Minister has no authority to overrule the judiciary and find against me on forensic evidence when NO court of law ever did so. 

 Further still, in summing up at trial, the Prosecutor did not lay out the existence of any forensic evidence as bolstering the soldiers’ accounts. The sum total of the prosecution case against me was the soldiers word against my own and no more than that,

 This case so far as the essential facts are concerned is black and white, either there is a concoction and a fabrication, a series of dastardly lies being told by the military witnesses in this case or there is not. Mistake does not enter into it in my respectful submission. ... It is a question of a conspiracy of lies, a deliberate attempt to have this man convicted of an offence for which he should not have been convicted. (Pages 517 & 523 Trial Transcripts)

 “(iii) your explanation for your presence at the scene at that time, which the trial judge did not believe.”

This involves the product of bad logic and no weight can be attached to the Judge’s unsound disbelief as to why I was stopped and arrested only a matter of yards from the main entrance to the Swillybrin Inn. 

The Justice Minister should not rely upon or assert that which he knows to have perverted the course of justice, or, that which he does not care may have perverted the course of justice, resulting in my false imprisonment. He should not connive in or substantiate the malicious prosecution against me with intention of continuing with what has been a longstanding and perfidious wrong. For 22 years my account has been consistent the states account has varied each time has been discredited.

The Justice Minister, not being a court of law, has concluded that I remain guilty of the offence for which my unlawful conviction was based. The following evaluation of evidence and weight to be attached to it is entirely the preserve of the judiciary’s and not for an elected public representative, or his office staff, who have no legal authority to make such a finding. 

In conclusion, I have reached the view that, whilst taking account of the new factual evidence that led the Court of Appeal to quash your conviction, and the remaining evidence presented against you at your trial, the evidence against you has not been so undermined that no conviction could possibly be based upon it. I have therefore decided on behalf of the Department that you are"  - (Guilty). (Justice Minister, David Ford, MLA, 5th July 2011)

 The Justice Minister cannot decide on the weight of evidence with greater judicial authority than the Appellate Court can as was defined in R v Pendleton,

The Court of Appeal is a court of review, not a court of trial. It may not usurp the role of the jury as the body charged by law to resolve issues of fact and determine guilt. … It is not permissible for appellate judges, who have not heard any of the rest of the evidence, to make their own decision on the significance or credibility of the fresh evidence.

This is an important and greatly prized feature of our constitution. Trial by jury does not mean trial by jury in the first instance and trial by judges of the Court of Appeal in the second. (!And if that should fail, harvested out to Trial by Executive means in a third.)

The case against the Justice Minister concerns my constitutional and Convention rights and not compensation entitlements. My concerns about the Justice Minister

adjudicating on my case are accurately captured and reflected in South Australia v Totani, as follows,

 …it is the unacceptable grafting of non-judicial powers onto the judicial process in such a way that the outcome is controlled to a significant and unacceptable extent, by an arm of the Executive Government which destroys the Court’s integrity …  (South Australia v Totani [2010] HCA 39 at paras 42 & 322.)

On the 7^th March 2011 in a hearing before Mr Justice Weatherup, and Mr Justice Weir, Mr McGleenan, on behalf of the Justice Minister, asked that the case be dismissed or adjourned to allow time for the Supreme Court verdict in McCartney and others. I contended that whatever that Judgment would contain it would have little relevance with my judicial review arguments. My view has since proven to be the correct position and I layout a more complete outline of my case in Part 2 of this submission as ECtHR and UKSC case law permits.

 At page 112 of DM1 it is remarked that “He also refers to his previous (mistaken) suggestions that we regard him as guilty…” My understanding ‘was’ that compensation is not being denied by the Justice Minister because he thinks that I am innocent. That the DoJ does not regard me to be guilty is an admittance that it has knowingly and wilfully been continuing to punish me without justification as if I were guilty.

The Justice Minister’s did not make his decision on the deserving merits of my case but to ensure that anyone else suffering injustice does not get justice. That is perverse and dangerous logic and not be permissible within a democratic jurisdiction, as follows,

If Walsh's application succeeds it may gain a higher profile and raise questions over other convictions.

I have therefore decided on behalf of the Department that you are…” guilty.

Administrative Practice

The more closely the abuses to my rights are linked to the State, then the greater the control of the State over those acting or purporting to act on its behalf, in this instance, it is now the Justice Minister pursuing a malicious case against me. The Justice Minister cannot ignore evidence of bad faith in the past and act unlawfully in the present simply because he thinks that he can.

Administrative Practice applies to either repetition of acts or official tolerance of abuses at the level of the State itself. I can demonstrate both repetition and tolerance. It being a sad feature of human nature that those who seek power may be unfit to exercise it; below Lord Nicholls of Birkenhead makes clear that the administration of justice protects individuals against abuses by those to whom we entrust power.

Every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. … The role of the courts is to stand between the state and its citizens and make sure this does not happen. (R v Loosely [2001] UKHL 53, 2001 WL 1171942.)

 Significance of the concept of administrative practice as far as domestic remedies are concerned was highlighted by the Commission in the Greek case:

Where … there is a practice of non-observance of certain Convention provisions, the remedies prescribed will of necessity be side-stepped or rendered inadequate. Thus, if there was an administrative practice of torture or ill-treatment, judicial remedies prescribed would tend to be rendered ineffective by the difficulty of securing probative evidence, and administrative inquiries would either be not instituted, or, if they were, would be likely to be half-hearted and incomplete… (The Greek Case (1969) 12 Yearbook 1, at p.194.)

The Justice Minister should not assert that which he knows to have perverted the course of justice or that which he does not care may have perverted the course of justice, and which resulted in my false imprisonment. He should not connive in or substantiate the illicit concoction of evidence in pursuit of what has been a longstanding and perfidious wrong, if even for reasons, as stated by his Department (at paragraph 12 above), that to treat me appropriately may “raise questions over other convictions." UK case law is long established that “Making a statement known to be false with the intention that it should be believed and with intention of causing injury”[3] gives rise to a tort and probable criminal sanction. 

The proper administration of justice is in the jurisdiction of the judiciary and it is constitutionally that way for the protection and benefit of all the people of Northern Ireland. The Justice Minister has no jurisdiction to perversely deny me justice for fear that someone else may also deserve justice. In Taylor the Court of Appeal had this to say for the administration of justice in Northern Ireland.

Nor, indeed, is the matter one which concerns the individual prisoner alone. That the due and orderly administration of justice should be maintained is a concern of the whole community. We take it that the duty of a court is not only to ensure, as far as possible, the due administration of justice in the individual case, but also to preserve the due course of procedure generally.  (R v Taylor [1950] NI 80)

The nature of the Justice Minister’s personal involvement in my case now suggests that the violations have become so severe that the Executive is guilty of Administrative Practice. In Donnelly v UK [1974][5], Administrative Practice can be established if there is evidence of illegality or violation and that the conviction had been authorised or tolerated at the level of the state itself, namely at the level of the Executive or an agency thereof specially entrusted by it with the authority to order or promote the practice.

 In comparison to De Becker v Belgium (9 June 1958) (No 214/56) yearbook of the ECHR 214, forfeiture of De Becker’s civil rights was a continuing one lasting his whole life such that it was not merely a breach of Article 10 ECHR but became a state of affairs. The violations to my right to a fair trial are so numerous (an estimated 30 stand alone fair trial breaches) that the same state of affairs exists.

The case of Ireland v UK describes repetition as;

159. A practice incompatible with the Convention consists of an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system; a practice does not of itself constitute a violation separate from such breaches. It is inconceivable that the higher authorities of a State should be, or at least should be entitled to be, unaware of the existence of such a practice. Furthermore, under the Convention those authorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will on subordinates and cannot shelter behind their inability to ensure that it is respected. (Ireland  v UK (Application no. 5310/71) Strasbourg, 18 January 1978, para 159.)

Official tolerance in the my case ‘means’ the Justice Minister’s manifest indifference by refusing any adequate investigation of the truth or to test the reliability of the evidence which I had provided him with. Integrity dictates that the Justice Minister should have decided against participating or perpetuating what has always been a malicious prosecution against me since June 1991. To compound the abuses to my human rights on the basis that, "If Walsh's application succeeds it may gain a higher profile and raise questions over other convictions." is an affront to the proper administration of justice for all the people of Northern Ireland whether they have suffered an injustice or not.  That the DoJ express concern (or knowledge) that if I successfully clear my good name someone else might deserve justice also is a confession of Administrative Practice. (page 99 of DM1)