Neutral Citation No. [2008] NILST 15

Ref:    

2008NILST15

Tariff certified by the Secretary of State under Life Sentences (NI) Order 2001 on 03-07-08

 

 

 

THE STATE

 

-v-

MICHAEL McALEAVEY

________

 

DECISION ON TARIFF

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Ruling by Kerr LCJ

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KERR LCJ

 

Introduction

 

1. In 2005 I gave an indication of the likely minimum term of imprisonment that this prisoner would be required to serve in the event that he was transferred to Northern Ireland.  He was subsequently removed from the Republic of Ireland to a prison in this jurisdiction and on 19 June 2008 an oral hearing was held in which further submissions were made on McAleavey’s behalf concerning the minimum period that he should be required to serve before a decision on whether he could be released might be taken.

 

2. This minimum term or, as it is more commonly known, ‘the tariff’, represents the appropriate sentence for retribution and deterrence and is the length of time that the prisoner will be required to serve before his case is sent to the Life Sentence Review Commissioners whose responsibility it will then be to assess his suitability for release on the basis of risk.

 

3. It is unnecessary for me to rehearse the various background issues that I considered in my preliminary ruling.  There has been no significant change to the factual issues.  I will annex that ruling to this document.  Since that time, however, I have received written submissions on behalf of the prisoner and on behalf of the Secretary of State and these were supplemented by oral submissions on 19 June 2008.  I have also read and closely considered representations that were made by various members of the families of those who were killed.  I have been supplied with material concerning the behaviour of the prisoner while he was in custody in the Republic of Ireland.  All this information I have anxiously reviewed before coming to a conclusion as to the appropriate minimum period that is appropriate to the prisoner’s case.

 

The oral hearing

 

4. Mr Girvan appeared on the prisoner’s behalf.  He submitted that it was necessary to view the prisoner’s culpability against the background of his having been on duty for a considerable time in alien conditions, was suffering from dehydration, sleep deprivation and lack of nourishment.  He was suffering from disassociation and not functioning in a normal fashion.  It was also relevant that this was a high conflict zone and within the troops of whom the prisoner was a member there was disagreement about support for the previously warring parties, the Israelis and the Lebanese.  All of this contributed to the high level of stress from which the prisoner suffered.  Finally, it was submitted that a factor of considerable importance was that he was a soldier whose training had predisposed him to the use of lethal weapons.

 

5. It should be pointed out that no evidence was produced to support the claims that the prisoner had been in a disassociated state, or that he had been required to be on duty for excessively long periods, much less that he had been deprived of proper nourishment or sleep.  If there had been substance in these claims one would have expected to have some evidence of them but none of them appears to have featured to any particular extent on the court martial or the appeal.  Moreover, if true, the claims would have indicated an appalling lapse of duty on the part of the prisoner’s superior officers.  This alone prompts caution about their uncritical acceptance.

 

6. Counsel also referred to what he described as the prisoner’s near exemplary record in custody and the fact that he had been considered suitable for inclusion on a pre-release programme some years ago.  He highlighted the prisoner’s expressed remorse and submitted that the prisoner was now a suitable candidate for consideration of release.  On this issue it was pointed out to Mr Girvan that the prisoner, in an interview conducted in 2004, had asked for time to consider his response to the fairly elementary inquiry as to his motive for carrying out the shooting and that this did not rest easily with the claim that the shooting had been the result of his fatigue, dehydration and malnourishment or that he was truly repentant.  Mr Girvan’s response was that the prisoner should not be faulted for asking for time consider what, after all, was potentially a pivotal issue in determining the length of the tariff.

 

7. It was also suggested to Mr Girvan that a countervailing factor to the claim that his training had predisposed him to the use of force was that a vital element of a soldier’s training was discipline and that this ought to have operated as a restraint from discharging a lethal weapon.

 

8. On the question of the prisoner’s suitability for release, while it is true that he was entered on a pre-release scheme in 1993 in the expectation that he might be released in 1998, in fact he was removed from that scheme in 1997 when it was discovered that he had taken drugs. 

 

9. Mr Girvan informed the court that a tariff had been fixed by the Minister of Justice in the Republic of Ireland at sixteen years but no evidence to support that claim was forthcoming.  In any event, the prisoner had been retained in custody until his transfer to this jurisdiction.

 

Victim impact

 

10. At the time that I gave a provisional indication of the possible tariff in this case, I had not had the benefit of submissions from the prisoner’s solicitors or the families of the victims.  Correspondence has since been received from Noel and Mary Burke (father and mother of Private Peter Burke), Tamara Bushe (sister of Private Peter Burke) and Colette O’Neill (wife of Corporal Gregory Morrow).  Brief summaries of their representations are set out below.

 

11. Noel and Mary Burke (parents of Private Peter Burke) - They stated that their lives had never been the same since their son’s death.  They felt it necessary to take their two sons and daughter out of the country for a year.  They still find it hard to come to terms with the fact their son was murdered.  Even after the time that has passed, the fact that he was murdered still causes them grief and this is accentuated because they are now in the process of telling their grandchildren what happened.

 

12. Tamara Bushe (sister of Private Peter Burke) – Tamara Bushe was only five years old when her brother was killed.  She described how the death of her brother had affected her family and in turn how this had had an impact on her even though she was so young when he died.  After her brother’s death, she felt that her parents had been overprotective of her.  As a consequence, she found it hard to integrate and make new friends.  She referred to the fact that the family had been uprooted for a year and this, along with the constant media attention, was particularly disruptive to her family’s life.  She found the move abroad difficult – coping in a foreign country, having to make new friends and watching her parents grieve. She stated that she was always conscious of the burden of fear of putting extra unwanted pressure on her parents.  For this reason she felt that she had not lived life to her full potential.  Mrs Bushe wrote about the relationship she would have had with her brother and what she had missed because of his death. She referred to her own children as having lost a great uncle.  She stated that she projected the emotional strain that she had suffered onto her own children as she was now very overprotective of them.  In a poignant passage, Mrs Bushe said, “Peter was a son and brother, his death and the way his life was taken from us will leave its mark permanently on our lives and [on] future generations.”

 

13. Colette O’Neill (wife of Corporal Gregory Morrow) - Colette O’Neill described how she had been married to Corporal Gregory Morrow for only six months when he was killed.  She stated that she had contemplated suicide during the two weeks when she waited for his body to be returned home.  On the morning of her husband’s funeral she discovered that she was pregnant.  She described the joy mixed with sorrow that this discovery brought.  She recounted the shock of discovering that her husband had been killed by “one of their own” and by someone whom she had met with her husband before they left for Lebanon.  She stated that her father-in-law had taken ill and had been diagnosed with angina as a result of his son’s murder and that her mother-in-law was heart broken. She referred to the media attention and her involvement in the campaign to ensure that the prisoner was not released.  She had not been able to look at her husband in the coffin because of his injuries.  She described how every night for eight years she has dreamt about her husband still being alive; how she felt tortured and depressed. She concluded her letter by saying, “My daughter never knew her father and Gary never knew I was pregnant.  We never had the chance to live as a family and never will”.

 

The written submissions made on behalf of the prisoner

 

14. These submissions described the prisoner’s unhappiness in the army and how he had applied for a discharge on a number of occasions.  It was stated that the prisoner had volunteered for service in Lebanon in an attempt to foreshorten his contract with the army.  It was claimed that the unit which the prisoner was attached to was understaffed and lacked organisation and that the prisoner had hardly slept over six days before the killings and was both dehydrated and undernourished.  The claim was made that the prisoner was operating in a war zone with little experience.  Originally, he had not been assigned to this particular duty but had exchanged spells of duty with a Private Johnson.  The prisoner was described as being exhausted and in a disassociated state of mind at the time that he committed the murders.  Other members of the unit were said to have been tired also.  It was further claimed that the check point had been undermanned, with four men doing a five man task and that relations between those manning the check point had been extremely tense and strained.

 

15. The primary submission made in the written representations was that the final tariff should be set in line with the provisional indication or that a lower tariff should be chosen.  The other main submissions made on behalf of the prisoner were: -

 

“17. The Applicant (sic) cannot shy away from the fact that he was tried and convicted of three murders after pleading not guilty. However, the Applicant respectively (sic) submits that the Court take account of the following mitigating factors:

 

(i) The shootings took place against the background of a war setting.

 

(ii) The Applicant had been conditioned to injure others by his army training.

 

(iii) The Applicant had undertaken significant duties in the week preceding the shooting, had hardly slept, was dehydrated and undernourished. At the time of the shootings the Applicant was in a dissociated state. A short time before the shootings he was described as having: “eyes were wide open and there was a shake in his hands”. The psychological and physiological effects of warfare are significant.

 

(iv) There was no pre-meditation on the part of the Applicant.

 

(v) The fact that the incident was situation specific is confirmed by the fact that the Applicant has no previous convictions and has for the most part been a model prisoner since his incarceration.

 

(vi) The Applicant has displayed genuine remorse for the events of the 27th October 1982. The Court is referred to the Reports undertaken by the prison authorities.

 

(vii) The Applicant has attempted to rehabilitate himself to the best of his abilities whilst in prison. The Applicant has undertaken courses in French, German, Latin and Greek, completed a London School of Journalism course, a 3 year Open University Degree, a National Certificate of Health and Fitness and a TEFAL course which included time outside jail. The Applicant is also noted to have positively supported his other prisoners and engaged constructively with the Psychology and Probation and Welfare Service when in the Republic of Ireland.”

 

Report from prison authorities

 

16. A report from Governor C Barclay of Mountjoy Prison in Dublin has been provided in relation to the prisoner’s behaviour while in that prison.  It stated that his behaviour over recent years had been excellent and that he had built a positive relationship with prison staff of all ranks.  He attended the educational unit regularly and involved himself in many projects that are conducted there.  He played an influential role in the life sentence group and supported others within that group.  He was not considered a security risk.

 

Practice Statement

 

17. In R v McCandless & others [2004] NICA 1 the Court of Appeal held that the Practice Statement issued by Lord Woolf CJ and reported at [2002] 3 All ER 412 should be applied by sentencers in this jurisdiction who were required to fix tariffs under the 2001 Order.  The relevant parts of the Practice Statement for the purpose of this case are as follows: -

 

“The normal starting point of 12 years

 

10.       Cases falling within this starting point will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other. It will not have the characteristics referred to in para 12. Exceptionally, the starting point may be reduced because of the sort of circumstances described in the next paragraph.

 

11.       The normal starting point can be reduced because the murder is one where the offender’s culpability is significantly reduced, for example, because: (a) the case came close to the borderline between murder and manslaughter; or (b) the offender suffered from mental disorder, or from a mental disability which lowered the degree of his criminal responsibility for the killing, although not affording a defence of diminished responsibility; or (c) the offender was provoked (in a non-technical sense), such as by prolonged and eventually unsupportable stress; or (d) the case involved an overreaction in self-defence; or (e) the offence was a mercy killing. These factors could justify a reduction to eight/nine years (equivalent to 16/18 years).

 

The higher starting point of 15/16 years

 

12.       The higher starting point will apply to cases where the offender’s culpability was exceptionally high or the victim was in a particularly vulnerable position. Such cases will be characterised by a feature which makes the crime especially serious, such as: (a) the killing was ‘professional’ or a contract killing; (b) the killing was politically motivated; (c) the killing was done for gain (in the course of a burglary, robbery etc.); (d) the killing was intended to defeat the ends of justice (as in the killing of a witness or potential witness); (e) the victim was providing a public service; (f) the victim was a child or was otherwise vulnerable; (g) the killing was racially aggravated; (h) the victim was deliberately targeted because of his or her religion or sexual orientation; (i) there was evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation of the victim before the killing; (j) extensive and/or multiple injuries were inflicted on the victim before death; (k) the offender committed multiple murders.

 

Variation of the starting point

 

13.       Whichever starting point is selected in a particular case, it may be appropriate for the trial judge to vary the starting point upwards or downwards, to take account of aggravating or mitigating factors, which relate to either the offence or the offender, in the particular case.

 

14.       Aggravating factors relating to the offence can include: (a) the fact that the killing was planned; (b) the use of a firearm; (c) arming with a weapon in advance; (d) concealment of the body, destruction of the crime scene and/or dismemberment of the body; (e) particularly in domestic violence cases, the fact that the murder was the culmination of cruel and violent behaviour by the offender over a period of time.

 

15.       Aggravating factors relating to the offender will include the offender’s previous record and failures to respond to previous sentences, to the extent that this is relevant to culpability rather than to risk.

 

16.       Mitigating factors relating to the offence will include: (a) an intention to cause grievous bodily harm, rather than to kill; (b) spontaneity and lack of pre-meditation.

 

17.       Mitigating factors relating to the offender may include: (a) the offender’s age; (b) clear evidence of remorse or contrition; (c) a timely plea of guilty.

 

Very serious cases

 

18.       A substantial upward adjustment may be appropriate in the most serious cases, for example, those involving a substantial number of murders, or if there are several factors identified as attracting the higher starting point present. In suitable cases, the result might even be a minimum term of 30 years (equivalent to 60 years) which would offer little or no hope of the offender’s eventual release. In cases of exceptional gravity, the judge, rather than setting a whole life minimum term, can state that there is no minimum period which could properly be set in that particular case.”

 

Conclusions

 

18. This is clearly a higher starting point case.  Several of the factors identified in paragraph 12 of the statement are present, as Mr Girvan readily accepted.  The victims were providing a public service; extensive and multiple injuries were inflicted on the victims before death; and the offender committed multiple murders.  It appears to me that a further factor that must be taken into account in assessing the prisoner’s culpability is the attempt that he made to throw suspicion for these murders on other perfectly innocent civilians.

 

19. A clear aggravating factor is the use of a firearm.  It was claimed that mitigating factors included the lack of premeditation and the remorse which the prisoner has experienced.  It may well be true that this killing was not planned but the prisoner’s reticence in discussing fully the reasons that he carried out the murders makes it difficult to reach a firm view on this.  If, as seems likely, the immediate catalyst was a dispute between the prisoner and one of the other members of the unit, one is at a loss to understand why all three were killed.  I am not persuaded that the avowed lack of premeditation should operate as a significant mitigating factor.  Likewise, I have not been convinced by the prisoner’s claim to suffer genuine remorse.  His reluctance to explain why the murders were committed is simply irreconcilable with a professed authentic repentance.

 

20. In the event, therefore, this is a case which clearly warrants a higher starting point; where there are several factors present which require the selection of the higher starting point and which call for the application of paragraph 18 of the Practice Statement; where there is a significant aggravating factor which justifies the variation of the starting point upwards; and where there are no significant mitigating factors.

 

21. Allied to these considerations is the impact that the murders of these young men, who were performing vital peacekeeping duties on behalf of their country in preventing the re-ignition of the conflict between the warring sides in Lebanon, have had on their families and the community to which they belonged.  It is quite clear that many of the bereaved have been devastated as a result of these murders.  The course of their lives has been utterly changed and the sense of loss that they feel many years after the dreadful events of 27 October 1982 is as keenly felt as in the immediate aftermath of the killings.  These factors must weigh heavily in the selection of the minimum period that the prisoner must serve to satisfy the requirements of retribution and deterrence.  This consideration was dealt with recently by the Court of Appeal in R v Trevor Hamilton [2008] NICA where the court said: -

 

“When one comes to the task of selecting a minimum term to be served by any prisoner convicted of murder, [the impact on the family of the victim and on the community] are matters that are directly relevant to the exercise, since the purpose of the minimum term is to reflect the requirements of retribution and deterrence.  As this court said in Attorney General’s reference (No 6 of 2004) [2004] NICA 33, although “the conventional definition of retribution is punishment for crime … the concept also includes an aspect which might be described as exacting from the offender society’s due for the wrong that he has done”.  Society’s due must comprehend and cater for the impact that the murder has had on the immediate victims and the wider community.”

  

 

22. The claims made on behalf of the prisoner that the murders must be viewed as having occurred in a war setting; that he had been conditioned to injure others by his army training; that he had undertaken significant duties in the week before the shooting; that he had hardly slept, was dehydrated and undernourished; and that he was in a disassociated state I do not find to have been established as factors that significantly influenced the killing of his comrades.  These appear to me to partake largely of ex post facto hypotheses rather than factors soundly based on contemporary evidence.

 

23. As I have observed at paragraph 18 above, there are many factors present that point inexorably to a high level of culpability on the part of the prisoner.  I have concluded that, in light of the presence of so many of those factors, the appropriate minimum term to be served by the prisoner is twenty seven years.  This will include the time that he has spent in custody before his court martial.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                            ANNEX 

                           

Preliminary Indication of likely minimum term

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE STATE v MICHAEL McALEAVEY

 

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DECISION ON TARIFF ON TRANSFER TO NORTHERN IRELAND

 

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Introduction

 

1. I have been asked to indicate what the minimum sentence to be served by the prisoner would be if he were to be transferred from the Republic of Ireland to Northern Ireland.  The minimum sentence represents the appropriate period of imprisonment for retribution and deterrence and is the length of time that the prisoner will serve before his case is sent to the Life Sentence Review Commissioners who will assess suitability for release on the basis of risk. 

 

2. The process of indicating a minimum sentence in these circumstances lies outside the Life Sentences (NI) Order 2001 (which governs the fixing of minimum terms in life sentence cases where sentence has been passed in this jurisdiction) but is intended as a non-binding indication of the likely tariff.  The provisional tariff will allow the prisoner to make an informed decision as to whether to proceed with the application to transfer and will allow the Irish authorities to assess whether to acquiesce in the application.  If the prisoner transfers to Northern Ireland the matter will be considered by me again. 

 

The trial of the prisoner

 

3. On 27 September 1983, after a trial by general court martial sitting at the Ceannt Barracks, Curragh Camp, County Kildare, the prisoner was found guilty of the murder of his three comrades, Corporal Gregory Morrow, Private Thomas Murphy and Private Peter Burke, on the evening of 27 October 1982 while all were on active service in Tibnin, Lebanon.  On his arraignment he had pleaded not guilty to the charges.  He was sentenced to life imprisonment and discharge with ignominy from the defence forces. An appeal against the findings of the general court martial was refused.  The prisoner has been in custody since 22 January 1983.

 

Military Background

 

4. The prisoner was born on 16 May 1961.  He joined the Irish Defence Forces on 7 August 1980 at the age of nineteen.  After completing his basic recruit training, he was assigned on 9 February 1981 to the 2nd Infantry Battalion as a private.  He was subsequently attached to the 5th Infantry Battalion, Collins Barracks, Dublin and on 20 October 1982 he was posted to Lebanon with the 52nd Infantry Battalion for overseas service as part of the Irish Force attached to the United Nations.

 

Events on 27 October 1982

 

5. At 2pm on 27 October 1982 the prisoner, Corporal Morrow and Privates Murphy and Burke took up duty at an Irish Military check point at Tibnin Bridge, Tibnin, Bint Jubayal, South Lebanon.  At about 8.40pm other military personnel heard bursts of automatic gunfire and a number of single shots coming from the area of Tibnin Bridge. At about the same time a nearby base received a radio call from the check point at the bridge.  The caller (who, it was later established, was the prisoner) said that the check point had been “hit”. He was asked to explain what had happened and replied that there was “blood all over the place”, “[t]hey are still out there” and mentioned something about a car being present.

 

6. A patrol was dispatched to the check point to investigate the incident, arriving a few minutes after the radio message had been received.  Corporal Morrow, Private Murphy and Private Burke were found at the scene.  All had been shot dead.  The prisoner was found beside the bunker with his rifle pointed at two civilians who had their hands in the air.  When asked what had happened the prisoner said, “[t]hey came in, they came in” and, “[t]he yids did it”.  The prisoner’s rifle was taken from him and he was moved into the bunker.  When it was considered safe the prisoner was brought to the door of the bunker. He suddenly bolted towards the two civilians who were lying on the ground shouting “[b]astards, they shot them”.  The prisoner attacked the civilians, kicking and punching them and he had to be pulled off.  While this was happening he tried to disarm Commandant Hodson of his Gustav rifle but was prevented from doing so.

 

7.         In the ambulance on the way to the hospital the prisoner muttered “[b]astards killing them”.  He was examined at the hospital and treated for shock but was found to be otherwise unharmed. The prisoner was detained in hospital until 29 October 1982.  Thereafter, he stayed at Military Police Headquarters at Gallows Green where he was kept under observation but not in custody. 

 

The prisoner’s first statement

 

8. On 28 October 1982 the prisoner was interviewed about the incident and he gave a wholly exculpatory account.  He was interviewed again on 29 and 30 October 1982.  In the latter interview he made another exculpatory statement rehearsing all that had been said in his previous interviews but giving some further details. In this statement he said that about half an hour before the shooting began an Israeli jeep with two occupants came from the direction of As Sultaniyah and that he had a minor verbal altercation with one of the occupants of the vehicle which then led to an argument between himself and Corporal Morrow: -

 

“At approx 2000 hours an Israeli Jeep with no doors approached our position from As Sulthaniyah Road, Cpl. Morrow stopped the vehicle to check it. There were only two soldiers in the jeep i.e. driver and passenger. I stood in front of the jeep with my weapon (FN) covering it off while Cpl Morrow asked for identification. The passenger soldier of the vehicle got his coat from his shoulders and pointed to rank markings on his shoulder (gold bars) and said “This is our identification” or words to that effect. I then pointed the rifle at him and said to him, “The Cpl. asked you for identification Jew Boy”. The Israeli soldier passenger then pushed my rifle away from its pointed position and said “Talk with your mouth not with your hands”. He then said something to the driver but I did not hear what he said. I then called him “Yid” a few times. Yid means Jew. Cpl. Morrow then intervened and put a stop to our word confrontation. The Israeli Jeep then drove on over Tibnin Bridge continuing its journey……………….Shortly after the departure of the Israeli Jeep we sat down on chairs which were located outside the guard room of our check point. There were three chairs there and I sat on one of them.  Ptes. Burke and Murphy sat on the other two. Cpl. Morrow who was standing said to me “Get up and give the Cpl. a seat”. I got up and gave him my seat and I then went into the guard room you can look out and talk to people outside the structure, from position inside the guard room I was talking out to the lads who were sitting on chairs outside…”.

 

9. The prisoner then told the interviewing officers that just before he went into the toilets, he heard shouting and shooting then started from the check point below him.  When the shooting stopped he went down to the roadway and saw the bodies at the check point. The prisoner said a car then came to the check point and he ordered the occupants to get out and lie on the bonnet.  The following is the relevant passage from his statement: -

 

“…..Sometime very shortly after this I left the guard room to go to the toilet which is located up on the hill behind out post….After climbing the hill and just before I went into the toilet I heard machine gun fire. I seen flashes coming from the road below me and I heard shouting and yelling. At this stage I did not see anyone, I then hit the ground for cover and stayed there till the firing stopped. I then got up and ran (I do not know where) I then fell down a steep slope and landed at the bottom.….I heard shouts and movements after the shooting, I do not recall exactly. I then got up and I was on the road (As Sultaniyah) I was still in possession of my rifle. I did not see anyone at this point. I ran down to the guard room area and saw just the two bodies of Pte. Burke and Murphy.  I started screaming at them. I realised then what had happened. I did not see anyone else about. I then missed Gary Morrow and started shouting for him. I then thought I seen something moving in the wadi over by the water tank so I fired a number of rounds (automatic) towards that direction…..I then ran for the radio which was on the wall of the guard room and shouted into it to get somebody down to our post as there had been a shooting…..I then seen a civilian car after coming from Tibnin area and just approaching Tibnin Bridge. When the car started to come across the bridge I started shouting at it to stop. I did this shouting from a position near the guard room. When the car responded to my shouts two civilians got out and had their hands over their heads. The Irish reinforcements then arrived. At this point I had my rifle pointed at the two civilians. ….. Sgt. Leavy (I think) took my rifle and the medical orderly took me inside the guard room…..I then remember coming out of the guard room and I went for one of the civilians who was lying on the ground…..The only thing I sustained was shock…..”.

 

The prisoner’s second statement

 

10.       The prisoner was not interviewed again until the 22 January 1983. On that date he was cautioned and interviewed by Chief Superintendent Murphy and Detective Inspector Culhane at Gallows Green. The prisoner said, “I don’t give a fuck who you are, you are no different than the fucking MPs”. Detective Inspector Culhane produced a copy of the statement that the prisoner had made on 30 October 1982 and asked him to assist in clarifying certain aspects of the statement. The prisoner then said, “Did you not know I am a fucking werewolf?  I shoot everybody. I go around and shoot up this fucking world”. Detective Inspector Culhane again asked him to discuss his first statement with them.  The prisoner did not reply but looked down at the floor and he continued to do this for about 5 minutes.  He then looked at the Gardai and asked “What do you want me to say?”  Detective Chief Superintendent Murphy said “Tell us the truth about what happened on the night of Wednesday 27 October 1982 at Tibnin Bridge”. The prisoner remained silent for a period and then placed his head in his hands and began to cry.  He then said, “I shot them, I shot them” and he then started to cry bitterly. He said, “I want to tell the truth about what happened that night. I am sorry I did not tell it before now”.

 

11.                   The prisoner then made an inculpatory statement. In this statement he described in greater detail the disagreement that he had had with Corporal Morrow and the events that followed:-

 

“…After the jeep had passed the Corporal said to me “That was a fucking stupid thing to do”. I then said to him “You are a stupid bastard to let them through without identification”. The Corporal asked me if I knew the orders of the post and I said to him that if he knew his job as i/c he would have read them out to us before-hand. He told me to keep my mouth shut that he was in charge and told me to be quiet. I told him he was an idiot and that even a child of three would remember to bring his weapon with him. What I meant by that remark was that before we went on duty the Corporal had forgotten to take his weapon with him and when we arrived on the check point he had to borrow a weapon from the off going N.C.O., that is Corporal Whelan. The Corporal then told me that I should be quiet as I was only a sub coming out to the Lebanon, and that I crawled and begged to come out. Corporal Morrow then got Private Murphy to back him up. Private Murphy then started to slag me about my bulled boots and my general appearance on parades, and said that he would not stand beside me in parades. The Corporal then said to me “Get up off the fuckin’ seat”. I told him if he did not get away from me I would burst him…”.

 

12.       The prisoner told the police that after this altercation Corporal Morrow directed him to take up a position at the sandbags at the bridge. Following further verbal abuse between the prisoner and Corporal Morrow, the former opened fire on his three colleagues while they sat on chairs outside the bunker. In his statement he described the tragic events of that evening thus: -

 

“He then ordered me out to the other post that is the sand bag position at the bridge.  I told him to wise up and he shouted “that is an order”.  He then told me to cut it out and go out on the bridge or he would report it.  I said “fuck you”.  I got up and started to walk over to the sand bags.  The Corporal then …. told me to go up to the mag position and bring the mag boxes down.  I told him “to fuck off for himself and go up and get them himself or send one of his cronies up for them”.  I went out and stood on the bridge.  I must have been standing there for about half an hour and I could hear them laughing, that is Corporal Morrow, Private Murphy and Private Burke.  I came off the bridge and told Corporal Morrow to put a man in the mag. position or I was not going to fucking stand out there on my own.  I told him that he did not even know his own orders and that he did not even bother to read them.  He then turned to Murphy and Burke and said to them that he did read the orders and he then said to me “The lads heard me”.  I then said to him I would see to it that he would not come out here again as an NCO.  I then started on to him again about he forgetting his gun and I again told him he was a fucking idiot.  He then came over to me and said “chalk three had not come in yet and that there would be a vacant seat for me on it on the way back to Ireland”.  I started to walk away and as I did I cocked the weapon, turned around and opened up.  I started spraying and just held my finger on the trigger.  I remember the rifle jamming or I may have been changing mags but I just cocked it and opened up again.  I then remember running in beside them and mopping up.  The last thing I remember was shooting Corporal Morrow who had gone around the side of the Bunker.  I then realised what I had done and started to run….”.

 

13. The prisoner concluded his statement by professing his sorrow and regret: -

 

“…Things just started building up in me that night and I am sorry I did not admit it in the first place. I am sorry for what I have done. I am sorry for the families of Corporal Morrow, Private Murphy and Private Burke and may God forgive me for what I have done….”.

 

First Post Mortem

 

14. Dr Charles K. Allam conducted the autopsy on the bodies of Private Murphy, Private Burke and Corporal Morrow and concluded that:

 

(a) from the injuries received by Private Murphy, it was obvious that he was shot at a very close range to the temporal area and that the brain damage resulted in instantaneous death.

 

(b) from the injuries received by Private Burke, the cause of death is the extensive damage inflicted to the brain; death certainly resulted instantaneously.

 

(c) from the injuries received by Corporal Morrow, death resulted instantly from brain damage inflicted by a high velocity bullet to the head.

 

Second Post Mortem

 

15.       Dr Lindberg of the State Department of Forensic Medicine in Stockholm gave evidence of a special forensic examination and autopsy carried out by him on the bodies of the three soldiers on 2 November 1982. He described the nature of the wounds in respect of each of the deceased victims.

 

 

 

Corporal Morrow

 

16. There were four wounds to the body of Corporal Morrow, one to the head, one to the chest and a wound through the calf of each leg with the entry points on the back of each calf.  All the wounds had been inflicted before death and they were consistent with having been caused by high velocity bullets.  The wound in the head, in the opinion of Dr Lindberg, was the last to be inflicted. Tattooing around the entry wound was consistent with the shot having been fired at close range.

 

Private Murphy

 

17. There were eight wounds to the body of Private Murphy.  One was to the head, one had entered the back splintering the vertebrae, passing through the lower right lung and stopping at the sixth rib.  Another wound was to the back of the right shoulder and there was a wound on the left upper arm.  There were two wounds on the lower right arm, a wound entering the left thigh and exiting at the knee joint and a wound with an entry at the inner side of the right knee joint. There was, also, a wound in the throat in which a bullet fragment was found lodged. All wounds were consistent with having been inflicted by high velocity bullets.  In Dr Lindberg’s opinion the wound in the lower back would have been fatal and the wound in the head was the last wound to be inflicted. There was tattooing around the entry wound consistent with the shot having been fired at close range. In Dr Lindberg’s opinion, the wound in the head was the cause of death.

 

Private Burke

 

18.There were six wounds to the body of Private Burke.  One bullet had entered though the right side of the scalp at the back of the head; there was a wound consistent with a bullet having entered the right side of the throat and exited high at the back of the head; a wound consistent with a bullet having entered the back of the left thigh which passed out at the front; a wound consistent with a bullet entering the left leg and passing through the leg; a wound consistent with a bullet entering the right shin and passing through the leg; and a shallow groove wound on the upper leg thigh consistent with a bullet touching the skin. In Dr Lindberg’s opinion, the last wounds inflicted were those to the head but he could not say in what order they were inflicted. In the opinion of Dr Lindberg, the wounds to the head were the cause of death.

 

Distances

 

19.       In respect of the distances the shots had been fired from, Dr Lindberg said that he was of the opinion that the wound to Corporal Morrow’s head was consistent with a muzzle to the target distance of 50 centimetres or closer; the wound to the right ear in the case of Private Murphy was consistent with a distance of a little further than that of Corporal Morrow; the wound to Private Burke’s head was from a close range shot; and the wound to Private Burke’s throat was consistent with a muzzle distance which could have been 10 or 15 centimetres. All the other wounds on the bodies had been fired at a distance greater then a metre to a metre and a half.

 

Court Martial Findings

 

20.       The general court martial found the prisoner guilty of all the charges in the charge Sheet – that, when on active service at Tibnin Bridge, Tibnin, Lebanon on 27 October 1982, he murdered Private Burke, Private Murphy and Corporal Morrow.  The prisoner was sentenced to life imprisonment and to be discharged with ignominy from the defence forces.  The findings and sentence of the court martial were confirmed on 12 December 1983 and promulgated on 16 December 1983.  The sentence and discharge with ignominy from the defence forces took effect from 8 June 1984.

 

21.       The court martial did not provide reasons for its findings.  There was no recommendation for a minimum term. The sentence of life imprisonment is the mandatory penalty on conviction of murder.

 

Appeal

 

22. The prisoner appealed against the guilty finding. The court martial appeal court came to the clear conclusion that the verdict could not be faulted and the appeal failed. It was the view of the appeal court that the conduct of the court martial was exemplary in its fairness and clarity.

 

Personal Background

 

23. At the time of his conviction the prisoner was a single man aged 22 years.  When he finished school in Belfast in 1979 he got a job as a tool maker, also, in Belfast. Before he had finished school he applied for a position in the Irish Army and was accepted into the army on 7 August 1980.

 

24.       Very little is known about the family background and circumstances of the prisoner and the army authorities do not possess any further information.

 

Antecedents

 

25. The prisoner has no court martial convictions and no civil convictions.  The only disciplinary record consists of two offences of being absent without leave. The prisoner was punished in relation to the first incident by being confined to the barracks for 4 days’ and he forfeited 4 days’ pay.  Regarding the second incident, the prisoner was punished by receiving a warning and forfeiting 1 day’s pay.  I consider therefore that the prisoner’s record is irrelevant to the present exercise.

 

Practice Statement

 

26. In R v McCandless & others  [2004] NICA 1 the Court of Appeal held that the Practice Statement issued by Lord Woolf CJ and reported at [2002] 3 All ER 412 should be applied by sentencers in this jurisdiction who were required to fix tariffs under the 2001 Order.  That this approach should continue to guide sentencers in this jurisdiction was confirmed in Attorney General’s reference (No 6 of 2004) (Conor Gerard Doyle) [2004] NICA 33.  Since, if he is transferred to Northern Ireland, the prisoner’s tariff will fall to be determined in like manner, this approach is appropriate to his case also.  The relevant parts of the Practice Statement for the purpose of this case are as follows: -

 

“The normal starting point of 12 years

 

10.       Cases falling within this starting point will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other. It will not have the characteristics referred to in para 12. Exceptionally, the starting point may be reduced because of the sort of circumstances described in the next paragraph.

 

11.       The normal starting point can be reduced because the murder is one where the offender’s culpability is significantly reduced, for example, because: (a) the case came close to the borderline between murder and manslaughter; or (b) the offender suffered from mental disorder, or from a mental disability which lowered the degree of his criminal responsibility for the killing, although not affording a defence of diminished responsibility; or (c) the offender was provoked (in a non-technical sense), such as by prolonged and eventually unsupportable stress; or (d) the case involved an overreaction in self-defence; or (e) the offence was a mercy killing. These factors could justify a reduction to eight/nine years (equivalent to 16/18 years).

 

The higher starting point of 15/16 years

 

12.       The higher starting point will apply to cases where the offender’s culpability was exceptionally high or the victim was in a particularly vulnerable position. Such cases will be characterised by a feature which makes the crime especially serious, such as: (a) the killing was ‘professional’ or a contract killing; (b) the killing was politically motivated; (c) the killing was done for gain (in the course of a burglary, robbery etc.); (d) the killing was intended to defeat the ends of justice (as in the killing of a witness or potential witness); (e) the victim was providing a public service; (f) the victim was a child or was otherwise vulnerable; (g) the killing was racially aggravated; (h) the victim was deliberately targeted because of his or her religion or sexual orientation; (i) there was evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation of the victim before the killing; (j) extensive and/or multiple injuries were inflicted on the victim before death; (k) the offender committed multiple murders.

 

Variation of the starting point

 

13.       Whichever starting point is selected in a particular case, it may be appropriate for the trial judge to vary the starting point upwards or downwards, to take account of aggravating or mitigating factors, which relate to either the offence or the offender, in the particular case.

 

14.       Aggravating factors relating to the offence can include: (a) the fact that the killing was planned; (b) the use of a firearm; (c) arming with a weapon in advance; (d) concealment of the body, destruction of the crime scene and/or dismemberment of the body; (e) particularly in domestic violence cases, the fact that the murder was the culmination of cruel and violent behaviour by the offender over a period of time.

 

15.       Aggravating factors relating to the offender will include the offender’s previous record and failures to respond to previous sentences, to the extent that this is relevant to culpability rather than to risk.

 

16.       Mitigating factors relating to the offence will include: (a) an intention to cause grievous bodily harm, rather than to kill; (b) spontaneity and lack of pre-meditation.

 

17.       Mitigating factors relating to the offender may include: (a) the offender’s age; (b) clear evidence of remorse or contrition; (c) a timely plea of guilty.

 

Very serious cases

 

18.       A substantial upward adjustment may be appropriate in the most serious cases, for example, those involving a substantial number of murders, or if there are several factors identified as attracting the higher starting point present. In suitable cases, the result might even be a minimum term of 30 years (equivalent to 60 years) which would offer little or no hope of the offender’s eventual release. In cases of exceptional gravity, the judge, rather than setting a whole life minimum term, can state that there is no minimum period which could properly be set in that particular case.”

 

27. Since the Practice Statement was issued, the position in England and Wales has changed.  Sections 269 and 270 of the Criminal Justice Act 2003 and Schedule 21 to the Act (which sets out the starting points for various cases where a minimum sentence must be imposed) came into force on 18 December 2003.  In McCandless the court acknowledged that the Practice Statement had already been overtaken in England and Wales by the 2003 Act.  It did not consider that this should alter the sentencing pattern already established in Northern Ireland, based as it was on the Practice Statement.  At paragraph [10] of the judgment Carswell LCJ said: -

 

“In a number of decisions given when imposing life sentences and fixing minimum terms, including those the subject of the present appeals and applications, judges in the Crown Court have taken account of the principles espoused by the Sentencing Advisory Panel and by Lord Woolf CJ in his Practice Statement and have fixed terms in accordance with those principles and on a comparable level with the terms suggested in them.  We consider that they were correct to do so.  We have given careful consideration to the level of minimum terms which in our view represent a just and fair level of punishment to reflect the elements of retribution and deterrence.  We are not unmindful of the mandatory minimum terms prescribed in England and Wales for certain classes of case by the Criminal Justice Act 2003, but we consider that the levels laid down in the Practice Statement, which accord broadly with those which have been adopted for many years in this jurisdiction, continue to be appropriate for our society.”

 

28. This approach was again confirmed in the Doyle case and the Court of Appeal in that case also considered the appropriate method by which the Practice Statement should be applied in individual cases.  At paragraphs [22] to [24] of the judgment the court said: -

 

“[22] We do not believe that the provisions of the 2003 Act can be imported and applied in Northern Ireland in the absence of legislation to like effect in this jurisdiction.  We consider that the Practice Statement should continue to be the touchstone in this jurisdiction for the fixing of minimum terms in life sentence cases.  It must be remembered, however, that the statement did not purport to offer more than a series of guidelines and a suggested range of minimum terms and the court in McCandless was careful to recognise this in paragraph [8] of its judgment where it said: -

 

“We think it important to emphasise that the process [outlined in the Practice Statement] is not to be regarded as one of fixing each case into one of two rigidly defined categories, in respect of which the length of term is firmly fixed.  Rather the sentencing framework is, as Weatherup J described it in paragraph 11 of his sentencing remarks in R v McKeown [2003] NICC 5, a multi-tier system.  Not only is the Practice Statement intended to be only guidance, but the starting points are, as the term indicates, points at which the sentencer may start on his journey towards the goal of deciding upon a right and appropriate sentence for the instant case.”

 

[23] There is a temptation to try to strain the words of the Practice Statement in order to fit a particular case into a specific category or species of case instanced in the statement in pursuit of the aim of consistency.  This should be firmly resisted, not least because of the infinite variety of murder cases and the facts that give rise to them.  Moreover, Lord Woolf was careful to make clear that the examples that he gave to illustrate the broad categories were precisely that, examples rather than an exhaustive list of all those cases that might be classified in one group or the other.  This approach characterises both the selection of the normal or higher starting point and the identification of aggravating or mitigating factors that may warrant a variation of the starting point selected. 

 

[24] What the Practice Statement does is to provide a broad structure for the manner in which the minimum sentence should be chosen.  We agree with the submission of Mr McCloskey QC, counsel for the Attorney General, that in the vast majority of cases the sentencer should be able to decide which of the starting points is appropriate to the particular case that he or she is dealing with.  The facts of an individual case may not precisely mirror those outlined in the statement but, as we have said, the categories in the Practice Statement should be regarded as illustrative rather than comprehensive.  Once the starting point has been chosen, the facts of the case should be examined in order to identify those factors that may give rise to a variation of the starting point.  Once more, the aggravating and mitigating matters outlined in the Practice Statement must be regarded for this purpose merely as examples.”

 

29. The present case comes clearly within the higher category specified in the Practice Statement.  The prisoner’s victims were on active service as peacekeepers on a UN peacekeeping mission in Lebanon.  While this was not the reason that they were killed, it is, nevertheless, a circumstance that cannot be left out of account in choosing the appropriate category as the victims were unquestionably providing a public service at the time that they were killed.  Considerable violence was involved in the killing and multiple deaths occurred.

 

30. Having concluded that this is a higher starting point case, one must then examine any aggravating or mitigating features that might prompt a variation from the norm suggested by the Practice Statement.  In my judgment there are several obvious aggravating factors.  The first of these is that a firearm was used.  Secondly, the prisoner cold-bloodedly dispatched his victims after the initial impulsive shooting.  Thirdly, he attempted to place the blame on others who were entirely innocent, to the extent of attacking those local people whom he had detained at the scene.  He also denied his guilt in a quite brazen fashion during the investigations into the death.  There are no mitigating factors that I can detect, apart from the prisoner’s youth and the spontaneity of the initial shooting.  The latter factor is largely outweighed, however, by the fact that the prisoner reloaded his weapon and shot the victims at close range after having incapacitated them by the initial attack.  The remorse that he expressed was contained in a statement made by him fully three months after the incident, a statement whose admissibility he challenged on his trial.  It was submitted on his behalf that the unpremeditated nature of the crime and the sheer uselessness and gratuitous cruelty of the killings indicated that the prisoner had a defective personality or a personality disorder of some description which did not amount to a personality disorder of a nature which would afford a defence.  There is no evidence to support this essentially speculative theory, however, and I leave it out of account in my assessment of the appropriate tariff in his case.

 

31. In Doyle the Court of Appeal dealt with the effect that the presence of more than one factor justifying the selection of the higher category should have on the final choice of tariff at paragraph [33] as follows: -

 

“It seems to us that where the court chooses the higher starting point because of one particular aspect of the case, it should not normally vary the starting point upwards because of the same factor.  Where, however, there are several reasons that a case might be regarded as meriting a higher starting point, then some measure of increase of the minimum sentence may be warranted.  It is important to avoid an over-mechanistic approach to this issue, while guarding against the danger of double counting.”

 

32. Adopting the same approach to the present case, I consider that the minimum sentence to be served by the prisoner if he were to be transferred from the Republic of Ireland to Northern Ireland should be twenty four years.